DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Johnson
v
BHP Billiton Olympic Dam Corporation Pty Ltd
(U2017/4157)

Application for relief from unfair dismissal – alleged misconduct in failing to evacuate and conducting inspection of furnace following a serious incident – direction from supervisor given – not unreasonable to stay and conduct inspection but manner in which inspection conducted was unsafe and beyond the instruction given – valid reason for dismissal – on balance dismissal harsh – reinstatement not appropriate- compensation order made.

1. Background and case outline

[1] Mr Paul Johnson has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, BHP Billiton Olympic Dam Corporation Pty Ltd (BHPB).

[2] BHPB conducts an underground mine and metallurgical plant at Olympic Dam near Roxby Downs in the north of South Australia. The mine produces copper, uranium, gold and silver and the circumstances of this matter involve the smelting facility at the site.

[3] Mr Johnson commenced employment on 24 May 2001 and was employed until his dismissal on 31 March 2017. At the time of the applicant’s termination he was employed as a Process Specialist, responsible for a small team of Process Technicians looking after the flash furnace, electric furnace, and gas and dust areas located in the smelter building.

[4] On 21 March 2017, there was an explosion on the flash furnace tapping floor of BHPB’s smelter building. The explosion impacted what is referred to as “BTH5” and resulted in the spewing out of molten metal and further explosions. BTH5 is one of the blister tapholes in the flash furnace. At this time, Mr Johnson left his work area on the electric tapping floor on Level 2 and proceeded to the upper level where the explosions occurred. When the evacuation alarm was activated he did not leave the building. After some discussion with his Supervisor about the appropriate action, Mr Johnson “inspected” BTH5, which involved coming into close proximity to the blister taphole including, at one stage, with his protective visor lifted up, exposing his face.

[5] BHPB considers that Mr Johnson’s actions in not evacuating the building and then inspecting BTH5 represents serious misconduct.

[6] Mr Johnson was suspended on pay on 22 March 2017 while an investigation took place. The applicant attended a “show-cause” meeting on 31 March 2017 where he was verbally advised of the investigation findings and asked to provide reasons as to why he should not be dismissed. After considering Mr Johnson’s responses, BHPB terminated his employment on 31 March 2017.

[7] Mr Johnson was represented, with permission, by Mr Wright of WK Lawyers and contends that the dismissal was unfair. In relation to the events of 21 March 2017, Mr Johnson submits that:

● He was directed by his Supervisor, Mr Kevin Mooney, who he believed to also be the Incident Controller, to inspect BTH5 which he did after ensuring he was wearing the appropriate Personal Protective Equipment (PPE).

● He did not breach BHPB’s policies and procedures and in particular notes that the policies specify a number of situations in which an employee is to carry out certain tasks (provided it is safe to do so) after an evacuation alarm has sounded.

● In the alternative, if found to have breached BHPB’s policies and procedures, Mr Johnson’s actions were still reasonable in all of the circumstances given past practice and the direction of his Supervisor. Further, Mr Johnson did not wilfully breach any policy or procedure of the respondent.

[8] Further, Mr Johnson contends that:

● The dismissal was disproportionate to the conduct and overly harsh in circumstances where an employee has dual obligations to comply with the directions of his employer and the company’s policies and procedures.

● More weight should have been given by BHPB to his length of service, age, qualifications and the likelihood of finding alternative work.

● He had previously received a written warning in 2014 and two reminders regarding work place performance but these did not relate to the alleged facts constituting the termination of his employment.

[9] Mr Johnson initially raised some procedural fairness issues concerning whether he was given sufficient time to respond to the allegations and the show-cause process; however these were not significantly pressed in the hearing of the matter.

[10] In substance, Mr Johnson contends that there was no valid reason for dismissal and the dismissal was harsh and unjust in all of the circumstances. He seeks reinstatement to his former position.

[11] BHPB was represented, with permission, by Mr Wade of Ashurst Australia and it contends that Mr Johnson’s dismissal was not unfair on the following grounds:

● Mr Johnson should have evacuated the area immediately. Even if BHPB accepted that his failure to leave the area was excused, Mr Johnson remained in breach of the evacuation procedures by placing himself in a position of unacceptable risk.

● Mr Johnson, in inspecting BTH5, exposed himself to a manifestly dangerous situation which could have had fatal consequences.

● Mr Johnson’s presence in the area was entirely unnecessary.

● At the time of inspecting BTH5, Mr Johnson had no knowledge of what caused the incident or how it might escalate.

● Contrary to the relevant policies, Mr Johnson’s conduct also had the potential to directly or indirectly endanger or cause injury.

● Mr Johnson failed to follow Mr Mooney’s direction to maintain a “safe distance”.

● Mr Johnson showed no contrition for his actions and continues to maintain that he did not expose himself to an unnecessary safety risk which means BHPB can have no confidence that the applicant would not behave in a similar way in the future.

● BHPB took into account Mr Johnson’s length of service and performance history, which included prior breaches for failing to adhere to BHPB’s workplace safety policies.

[12] BHPB seeks the dismissal of the application without remedy. This includes strong opposition to any consideration of reinstatement given the circumstances, including that it cannot be satisfied that Mr Johnson would not engage in similar behaviour in the future.

[13] There is no dispute that Mr Johnson was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.

2. The evidence before the Commission

[14] Mr Johnson provided two witness statements 1 and gave sworn evidence. He also relied on the sworn oral and written2 evidence of Mr Mooney, the former Supervisor.3

[15] BHPB relied upon the witness statement 4 and sworn evidence of Mr Phillip Smith, Superintendent Production Execution Smelting, BHPB.

[16] Both parties relied upon what amounted to a common exhibit book 5 which comprised various documents including:

● some earlier disciplinary matters involving Mr Johnson;
● the relevant evacuation and work health and safety (WHS) policies;
● records of meetings and correspondence leading to and advising of Mr Johnson’s dismissal; and
● records associated with Mr Mooney’s dismissal.

[17] In addition, the Commission was provided with a recording of two-way radio communications between Mr Mooney, Mr Johnson and others in and around the incident on 21 March 2017 together with a (largely) agreed transcript of that recording. Further, the Commission, in the presence of the parties, has viewed the video footage of the explosion that took place on the flash furnace tapping floor and Mr Johnson’s subsequent inspection of BTH5.

[18] The video footage and transcript represent valuable objective evidence about the events and these illustrate the initial ferocity and potential danger represented by the explosions, the nature of some of the discussions between Mr Mooney and Mr Johnson (and others), and the manner in which Mr Johnson approached and inspected BTH5.

[19] Mr Johnson’s evidence was generally sound. However, I found that some of his evidence about the facts was not completely convincing. Even allowing for his obvious nervousness and the prospect of having to give evidence in what was a stressful environment, I was not convinced about some of the detail of the discussions with Mr Mooney immediately prior to conducting the inspection and about whether he actually accepted any wrongdoing in relation to his conduct on 21 March 2017.

[20] Mr Mooney was also dismissed by BHPB as a result of the events of 21 March 2017 and he was a reluctant witness in this matter. I found that his oral evidence about the facts associated with those events and his discussions with Mr Johnson was given openly and honestly and was generally convincing. However, not surprisingly, some of his evidence about the justification for his actions on that day, and Mr Johnson’s conduct, reflected his subjective views and discomfort in potentially implicating Mr Johnson in some ways. I also note that his evidence about alleged relevant changes to evacuation policy and procedures after the incident was hearsay and contradicted by direct evidence from BHPB.

[21] Mr Smith’s evidence was largely objective material about the events and decisions made by BHPB leading to the dismissal. Some elements of that evidence concerned the reasonableness of the findings made about Mr Johnson’s conduct and these are ultimately issues for the Commission to determine having regard to all of the evidence now before it.

3. The context for, and events leading to, Mr Johnson’s dismissal

3.1 The Smelting Operations at BHPB Olympic Dam

[22] Olympic Dam is a large poly-metallic underground mine involving copper, uranium, gold and silver ore. Once mined, ore is transferred to the Surface Operations, which are split into six production units - Concentrator/Laboratory, Solvent Extraction/Hydrometallurgy, Acid Plant/Feed Prep/Casting, Smelting, Refinery and Tailings Retention System. In broad terms, a copper concentrate is produced from the concentrator and then dried and transported to the smelter where it is burnt in a highly oxygenated atmosphere. This produces molten copper, which is cast into anodes that are then further refined in the refinery to produce a saleable product. Uranium, gold and silver are removed at certain stages from this stream. Sulphuric acid is also produced from smelting offgas and reused within the production process.

[23] BHPB employs approximately 2,500 people across the mine and surface operations at Olympic Dam.

[24] The Smelting Production Execution team, in which Mr Johnson worked, is comprised of four shift crews of 13 employees, as well as approximately ten individuals in the day team. Mr Johnson worked within one of the shift crews, specifically Shift 2 and he was responsible for a small team of Process Technicians. In general terms, Mr Johnson’s role focused on the management of levels of molten material (slag and blister) within the flash furnace and electric furnace. Levels are controlled by opening and closing of slag and blister tapholes. Measurement of these levels is completed by using a steel rod to dip the furnaces. Mr Johnson would also be required to do general process cleaning and monitoring of equipment to ensure ongoing operation on a regular basis.

[25] The incident on 21 March 2017 occurred on the blister tapping floor of the flash furnace. This is one part of the smelting operational area in which copper concentrate is burnt (smelted) within a flash furnace. Smelting produces a molten blister copper and a molten slag which settle as different layers within the furnace.

[26] The flash furnace walls are comprised of an internal refractory brick lining surrounded by water cooled copper elements. The cooling elements cool the back of the refractory bricks, which creates a "freeze" lining of solidified slag, preventing uncontrolled release of molten material. Blister tapholes are specifically designed holes in the side of the furnace in which the molten copper is tapped to allow it to flow to a downstream process. There are particular refractory brick structures around these tapholes to ensure they can be opened and closed safely.

[27] The flash furnace blister tapping floor in the smelter is considered an area of significant risk. If a mechanical breakdown or loss of containment occurs in this area, individuals can be exposed to a very high safety risk due to the temperature of this molten material (1200-1300 degrees centigrade). If this molten material interacts with water, a steam explosion occurs on account of the water superheating and changing from a liquid to a gas with extreme speed, resulting in a very significant increase in volume. The risk is that, unless it is contained, the molten material, boiling hot water and steam, can spray in all directions.

[28] BTH5 in located on Level 3 of the smelter building and is adjacent to BTH4, BTH6 and BTH7.

[29] There is a “cool room” or booth on the same level as the blister tapping floor and this is located on the western side of BTH5, approximately 20 metres away. The operations of the furnaces (and other activities) are monitored by a remote control room which has access to live video footage. In addition, the employees at the facility utilise an open two way radio network which is also monitored by management and recorded.

3.2 Mr Johnson’s employment history with BHPB

[30] Mr Johnson commenced employment with BHP Billiton at Olympic Dam in May 2001 and has worked since then on a full-time basis.

[31] He was initially employed in the role of Process Technician, which involved looking after the flash furnace, electric furnace and gas and dust areas.

[32] Approximately ten years ago, he was promoted into the role of Process Specialist. This meant that he was in charge of a small team in the various areas in which he was working from time to time. For example, when working on the flash furnace, he was in charge of four other workers and would provide them with assistance and direction where needed.

[33] Mr Johnson worked on a 7 on, 7 off, roster - alternating between day and night shift. His immediate Supervisor was Mr Mooney as the relevant shift supervisor. When Mr Mooney was not on site, another employee who was ordinarily employed at the same level as Mr Johnson would act up into that role.

[34] Amongst other matters, Mr Mooney would give directions to Mr Johnson on general day to day duties, advise him of any out of the ordinary tasks required during the shifts, and prepare a tapping schedule for each shift. This schedule would set out the various different levels for slags and blisters on each of the various furnaces in hourly increments.

[35] Mr Johnson remained employed as a Process Specialist until his termination on 31 March 2017. He was a salaried employee and at the time of his dismissal he earned $119,287.00 gross, made up of a base salary of $94,287.00 gross, shift allowance of $20,000.00 and an annual site allowance of $5,000.00.

[36] Mr Johnson held a myriad of workplace qualifications and licences relevant to his role including various plant and equipment related licences and permissions to undertake high risk work, molten metal handling and first aid.

[37] Mr Johnson was an experienced and well-regarded Process Specialist who received only one formal warning is his over 15 years of service with BHPB. There were also some other less serious disciplinary actions.

[38] In August 2014, the applicant was disciplined in relation to failing to wear the prescribed PPE (gloves in the tapping floor area) and using inappropriate language in an email communication. He was issued with a written warning. Although Ms Johnson disputed the reasonableness of the warning given what he saw as the practice at that time, it is evident to me that the requirement to wear the gloves in the location at all times was reasonable. Further, the fact that he was not aware that another employee had heated up a plug, which he then handled, actually justified the policy and warning, and not the conduct.

[39] On 7 March 2016, Mr Johnson was issued with a “letter of expectation” regarding findings made during the deconstruction of BTH9. Management indicated that the applicant had failed to adequately undertake a task in relation to the inner inserts in that area of the smelter. That letter emphasised the safety issues involved and advised that further concerns about compliance with company procedures will have a disciplinary consequence. 6

[40] I also note that Mr Johnson received a note to file during February 2015 concerning an element of a start-up procedure that was apparently not undertaken as required. 7

3.3 The relevant policies and procedures

[41] All Olympic Dam employees are required to act in accordance with the BHPB document "BHP Our Charter" (the Charter) and another document titled "BHPB Code of Business Conduct" (the Code). Regular training on these and other policies and procedures is conducted at Olympic Dam.

[42] Amongst other matters set out in the Charter and Code are:

● Putting Health and Safety first;

● Always –

● Know how to apply and always comply with our health and safety GLDs, standards and procedures and assist others to do the same.

● Identify, assess and take steps to control health and safety hazards associated with your work.

● Immediately stop any work that appears unsafe.

● Use the personal protective equipment required for the task you are performing and encourage others to do the same.

● Handle and dispose of all materials properly, safely and lawfully.

● Make sure you know what to do in the case of an emergency and that visitors are familiar with emergency procedures.

● Report to your supervisor or manager any accident, injury, illness, unsafe or unhealthy condition, incident, spill or release of material to the environment so that appropriate action can be taken.

● Give consideration to all complaints or warnings.  8

● Never -

● Undertake work unless you are trained, competent, medically fit and sufficiently rested and alert to do so.

● Undertake work when you may be influenced by alcohol or drugs (illegal, legal or prescribed).

● Use or tolerate threats, intimidation, harassment, bullying or violence at work.

● Bring weapons onto BHP Billiton premises, unless specifically and lawfully authorised to do so.

● Assume that someone else will report a risk or concern and that you therefore need not raise it. 9

[43] I also note that there are two examples given in the Code where workers are encouraged to question unsafe directions and one of these involves a worker being informed that they should not undertake the work where the direction given to them is not consistent with the policies. 10

[44] BHPB has in place detailed evacuation procedures. Relevant to the incident in question, are the Surface Operations Evacuation Procedure 11 and the Smelter 1, Smelter 2 and Acid Plant Feed Preparation Evacuation Procedure.12 The evident purpose of these procedures is to ensure that all employees are aware of what is expected of them in the case of an incident in which people are placed at risk, and in particular, the procedure to ensure a safe, timely and orderly evacuation in the event of an emergency.

[45] Given the nature of the operations at Olympic Dam, there are a range of circumstances where evacuation may be required and potentially serious consequences could follow if employees do not evacuate as and when required.

[46] The evacuation procedures arising from the two relevant documents are broadly consistent and these include, amongst other features:

● When an evacuation alarm occurs, all personnel are to immediately evacuate the relevant area and move to the muster point or alternative location as directed by the Incident Controller. 13
● Where an evacuation is called for a particular area, all workers are to stop work as safely as possible and activate equipment isolation switches only if safe to do so prior to leaving the area.
● If a blister and/or slag tap is in progress the operators are to plug the tapholes if it is safe to do so before evacuating the building and removing personal tags from the tag boards to record that they have left the building. 14
● An Incident Controller is nominated – the Casting Shift Supervisor or delegate in the case of the Smelter. 15
● All decisions to make the area safe and to contain the hazards are to be reported to and approved by the Incident Controller. If for reasons of safety, re-entry is required and has been sanctioned by the Incident Controller, only nominated personnel shall carry out the duties wearing the appropriate PPE as designed by, and acting under the guidance of the Incident Controller and the Emergency Services Officer (ESO). Further, this must only be done if the plant requiring attention poses a risk of severe loss and does not place the worker at unacceptable risk. No other personnel are to enter the building until the clearance has been given by the Incident Controller. 16
● Evacuation Drills are to be performed at 12 weekly intervals and recorded.

[47] I will return to the implications of these procedures as part of my consideration of the dismissal. I would note that the evidence reveals that the evacuation drills in the smelter may not have been conducted each 12 weeks and that they did not generally involve all personnel evacuating due to production requirements. I do find however, that BHPB took reasonable steps to train employees about, and to implement, the procedures. Indeed, Mr Johnson relied upon an aspect of the procedure during the show cause meeting conducted by BHPB in the lead up to the dismissal.

[48] I would observe that the evidence is consistent with BHPB taking a more serious and stricter approach to work health and safety compliance in more recent years.

[49] I further note that Mr Johnson also gave written evidence 17 about what he considered to be an earlier similar incident, on 22 October 2013 involving BTH9. On that occasion he had been working on the flash furnace and the electric furnace blister was coming out between the outer and the tapping block. He contends that the evacuation alarm was sounded however he was told by a Manager to plug the electric furnace. When this could not be done they blew the water out to make it safe. In the interim the electrical team then deactivated the alarm as the issue had been resolved. Following the incident, management had indicated that those involved had done a good job in resolving the issue and had made the right call. However, based upon the evidence that is before the Commission I find that whilst some of the context and actions were similar, it is likely that the October 2013 incident did not involve a full evacuation and the decision to undertake the work in question was made with very senior and experienced management directly involved.

3.4 The events on 21 March 2017

[50] On 21 March 2017, Mr Johnson was working on the night shift, starting at 6.00 pm, and was allocated to Level 2 – the electric furnace for that shift. Following a pre-start meeting conducted by Mr Mooney, during which a number of production and tapping block issues were discussed, Mr Johnson and his team undertook various tasks in relation to the electric furnace including blister tapping.

[51] At around 10.03 pm Mr Johnson was in the cool room on Level 2 entering data and checking temperatures in relation to the electric furnace. He heard what he described as two small explosions. What was happening at that time involved BTH5 on Level 3 as follows:

● At 10.03 pm an employee (PH) was driving the mudgun (a robotic device used to tap BTHs by remote control) across to BTH7 to perform a tap. PH was walking between the mudgun and BTH5 when an initial steam explosion occurred and this involved material coming out of the taphole with a force which was significantly greater than normal during the tapping process.
● At 10:03:46 pm, a second explosion occurred at BTH5 and the evacuation was called by Mr Mooney, who was in the Level 3 cool room prior to taking that action, and PH and another technician immediately evacuated the area towards the East.
● At 10:04:54 pm, at Mr Mooney’s request, the camera in the area was adjusted by the control room operator in an attempt to get a better view of the tapholes. Molten material and steam continued to be forcefully ejected from the taphole.
● At 10:06:06 pm the ejection of molten copper paused then resumed.
● At 10:06:26 pm the splash shield on the outer wall of BTH5 fell down due to the weight of copper from the explosion.
● At 10:06:47 pm, material ejection appeared to reduce and ceased altogether by 10:08:03 pm.

[52] The evidence reveals that these explosions represented an extremely serious event in which an individual could quite easily have been seriously hurt or killed. That is, if one of the employees had been in front of BTH5 at the time of the explosions, they would have borne the full force of the explosion involving molten metal and high temperature steam. At that point, the cause of the explosion and the reason that the flow had ceased was not known.

[53] During the event outlined above, Mr Johnson spoke to both the control room and PH via the two-way radio and was making his way up to the Level 3 cool room when the evacuation alarm went off. The conversation on the two-way radio also involved another employee and Mr Mooney who was checking the whereabouts of PH and confirming that it was only BTH5 that was open, that the feed and burners to the flash furnace had been turned off and questioning whether it was going to be safe to “plug” BTH5, with PH indicating that “Hell no. The way it was banging, it’s just spraying out”.

[54] The conversation on the two-way radio at this point between Mr Johnson and others involved Mr Johnson checking whether the water to the furnace should be turned off and which BTH had blown. In addition, Mr Johnson advised Mr Mooney that the electric furnace was tapping blister and asked if he wanted it plugged. Mr Mooney indicated that this should be done, which occurred. Further, Mr Johnson was advising Mr Mooney that probably the safest thing they could do in relation to the blister furnace was to turn the water off, blow the taphole out and plug it. Mr Johnson also sought clarification as to whether the surround (the outer) block had blown out and when advised by PH that he could not see that before he left, Mr Johnson indicated that “if the outers blown off mate, we’re in trouble”.

[55] Mr Johnson also asked Mr Mooney whether he should go up there and blow the water out. Mr Mooney advised Mr Johnson to come up to the Level 3 cool room, that he could not now see any flow (from BTH5) and that they (Mr Johnson) would “have a bit of a look if he still has his PPE on”.

[56] Given this exchange, Mr Johnson did not evacuate when the evacuation alarm was sounded but went into the Level 3 cool room where he checked the computer system that monitors the water jacket, pump and other systems. He noticed the vertical element was in high alarm. Mr Mooney joined Mr Johnson in the cool room having earlier gone outside to activate the evacuation alarm.

[57] Mr Mooney and Mr Johnson discussed whether the BTH5 outer was in place or not, because they were concerned that the water to the tapping block may need to be blown out to prevent further explosions. Both men had previously been involved in taphole failure incidents. Mr Mooney requested Mr Johnson to inspect BTH5 from a distance by having a look from a column (also referred to as a vertical beam) adjacent to the tapping floor, if it was safe to do so. The purpose was, in effect, to see if the outer was still in place.

[58] Both Mr Mooney and Mr Johnson thought that BTH5 had stopped flowing and Mr Mooney contacted the control room to look at the camera that was pointed on BTH5 to verify this, and their thoughts were confirmed.

[59] Before leaving the cool room, Mr Mooney checked that Mr Johnson was wearing the full PPE required for the area, including a full face visor, which he was.

[60] At 10:09:59 pm, Mr Johnson entered the tapping floor area and initially looked at BTH5 from behind the column and then moved back. Mr Johnson could see that BTH5 was not flowing and he assessed the general state of the outer from that distance.

[61] At 10:10:26 pm Mr Johnson returned to the tapping floor and walked closer to BTH5 by moving in line with the adjacent BTH4. After checking the status of BTH5 from the side and confirming the absence of flow and that the outer was intact, Mr Johnson then moved directly in front of BTH5 and looked into the furnace area in order to more closely inspect the outer insert and to check for any flow.

[62] At 10:10:43 pm Mr Johnson walked away and raised his visor. Less than a minute later he returned to look directly at BTH5 and did so with his visor still raised but with his safety googles in place. Mr Mooney then directed Mr Johnson to come away from the tapping floor.

[63] Mr Johnson confirmed to Mr Mooney that the outer was still in place and that BTH5 had plugged (was no longer flowing). There was then a general discussion about future actions and the need to let things cool down. In addition, Mr Mooney explored how to turn off the evacuation alarm and at some point, Ms Uys (the actual Incident Controller on the day) who was apparently monitoring the situation including the communications, advised all personnel on the two-way radio that there were remaining tags on the tag board and that anyone who was not required should, in effect, evacuate and remove their tags.

[64] Mr Johnson and Mr Mooney then left the building.

[65] In relation to the fact that he inspected BTH5 without his visor down, Mr Johnson contends that employees only wear visors when they are actually tapping. He further stated that he finds it very hard to see out of the visors as they get scratched very easily and he was wearing safety goggles at the time. Given the circumstances and the uncertainty about the state of BTH5, despite the confirmation that the outer was intact and his wearing of the safety googles, that approach was still objectively unsafe and unwise.

[66] Following the evacuation, and after a period of approximately two to three hours, the relevant work crew undertook a risk assessment about the safe re-entry to the area. Mr Smith was present for this risk assessment. The CCTV footage of the incident was reviewed in order to seek information about the extent of the damage and the areas which might still be at risk. The risk assessment and subsequent actions also concerned visual inspection into the flash furnace, starting burners, blowing out of water circuits with high pressure air and utilising blister tapholes on the west side of the furnace to drain inventory (the BTH5 incident occurred on south side of furnace). Mr Johnson and Mr Mooney were also involved in both the planning and execution of that process.

[67] I will return to the implications of the evacuation policy and the actions of Mr Johnson in due course. I accept that Mr Johnson considered that the risk of a steam explosion was minimised given that the feed to the furnace and the burners had been turned off and that there would be some warning signs before it would “pop” again. However, despite the best intentions of both Mr Mooney and Mr Johnson and their attempt to confirm that the flow had stopped, at the point that Mr Johnson initially undertook the inspection of the tapping floor and BTH5, they had no reliable way of telling what part of the taphole or furnace had failed. Even after that initial inspection, Mr Johnson had no reliable basis to be confident about whether the explosion and flow was going to reinitiate at some point.

[68] As a result of later investigations that I will outline below, it was discovered that during a routine maintenance shutdown, completed two days prior to this incident, the refractory bricks around BTH5 were replaced. These bricks had not been installed correctly and this created a path for molten copper to get to the back of the water cooled copper elements. When the molten copper contacted the back of the water cooled copper element, it overpowered the cooling effect and came into contact with the water cooling circuit. This in turn, caused a steam explosion as the water superheated and expanded rapidly as it instantaneously turned into steam. The end result was the forceful expulsion of steam and molten copper from the taphole. After the explosions, the taphole self-sealed but this was not such as to make it reliable or safe.

[69] As outlined earlier, under the relevant evacuation procedure, the actual Incident Controller was Ms Uys, the Casting Shift Supervisor. However, Mr Johnson genuinely held the belief that Mr Mooney was the Incident Controller at the time and he was not challenged about that belief during the hearing of this matter.

3.5 The process leading to the dismissal

[70] Concerns held by Mr Smith that Mr Johnson had not evacuated and had put himself in serious danger led to a decision to conduct a disciplinary investigation.

[71] I note that there were also two other separate investigations completed by BHPB; being a technical investigation and an ICAM 18 investigation. The technical investigation was concerned with the specific technical aspect of how BTH5 failed. Mr Smith was the investigation leader for the technical investigation. The ICAM investigation was completed to build on the technical findings and identify organisational factors that were in play leading up to the failure.

[72] The disciplinary investigation was undertaken prior to completion of the ICAM and technical investigations. Mr Smith led the disciplinary investigation with support from Ms Riannon Harrison, Specialist HR Business Partner and this involved the following steps.

[73] This commenced with an initial interview with Mr Johnson conducted on 22 March 2017 during which Mr Smith raised his concerns and explored Mr Johnson’s response. Mr Johnson indicated, amongst other matters, that he was aware of the evacuation but had been requested by Mr Mooney to have a look at the incident (BTH5) from a safe distance and the evacuation procedure permitted some tasks, such as plugging, to be done before evacuation. Mr Smith advised that he considered that Mr Johnson had put himself at significant and unnecessary risk and that the incident would be further investigated. Mr Johnson was stood down with pay and this was confirmed in writing at that time. 19

[74] Both Mr Mooney (who had also been stood down) and Mr Johnson were separately interviewed on 24 March 2017. Mr Mooney indicated that he had asked Mr Johnson to have a look at the taphole provided that it was safe to do so and from a safe distance. On balance, I find that this included that he should do so from beside the column.

[75] In his interview, Mr Johnson confirmed his awareness of the evacuation procedure and the request made by Mr Mooney. He also indicated that he was attempting to ascertain the status of BTH5 with a view to taking action if appropriate to remove the water and prevent a more significant failure. When asked about the risk assessment made, Mr Johnson indicated that he had looked at the plant control system and sought confirmation that the flow had ceased. He also indicated that there was no time for a formal documented risk assessment and there was, in effect, a need to act quickly. Mr Smith also raised the notion that Mr Johnson and Mr Mooney should have left given that the flow from BTH5 had ceased and the water could be shut off without going onto the floor. Mr Johnson indicated that he did not consider that it was safe to leave at that point, which was why he “went in”. Mr Johnson also confirmed his position that his inspection of the taphole was fine and that he was safe in doing so.

[76] At the conclusion of the interview on 24 March 2017, Ms Smith advised Mr Johnson of the other investigations and that he would be informed of further developments. Mr Johnson remained on paid suspension.

[77] After consideration of the circumstances and Mr Johnson’s position, a show-cause meeting was organised for Friday 31 March 2017. The opportunity for Mr Johnson to have a support person attend was provided both before and at the outset of the meeting. This invitation was declined.

[78] During the show-cause meeting, Mr Smith outlined the findings reached and indicated that in the Company's view Mr Johnson had put himself in a dangerous position and that what he had done was not safe. Mr Johnson rejected that notion. Mr Smith then went through some more detailed findings using a set of speaking notes from his computer and added in Mr Johnson’s responses to those notes as he went. In the end result, Mr Johnson was invited to “show cause” as to why his employment should not be terminated and he was given a copy of the completed speaking notes and afforded time to prepare a response.

[79] After about 40 minutes, having checked whether Mr Johnson required further time, the meeting resumed and the applicant provided a response. Amongst other matters, Mr Johnson indicated that:

● he had been directed to inspect BTH5 by Mr Mooney and that the information was needed in order to make decisions for the safety of the plant;
● the steam had stopped and that he had assessed the risks and worn the appropriate PPE;
● he had considerable experience in the smelters including the incident in October 2013 with BTH9 where his actions had been praised, and in effect, he had relied upon that experience;
● there has been two taphole incidents in 12 months and he questioned whether BHPB was supplying a safe workplace; and
● he had worked at BHPB for 15 years and had always looked after his crew and could not just leave them.

[80] Mr Smith and Ms Harrison then adjourned the meeting and consulted with another senior manager and confirmed some of the facts surrounding the incident and Mr Johnson’s response. I note that the fact that Mr Johnson did not have his safety visor down when approaching BTH5 for the second time on 21 March 2017 was considered by Mr Smith but not raised at the show cause or earlier meetings.

[81] Upon resuming the meeting, Mr Smith advised Mr Johnson that BHPB considered that he had breached the evacuation procedures and other policies and acted in a very unsafe manner by exposing himself to the risk of a further explosion. Further, he was advised that although Mr Smith understood that his actions may have been well intentioned and it might have been a high pressure situation, safety was paramount and had to come before anything else. There was also some discussion about the difference with the 2013 BTH9 incident and competing views were expressed about what the video footage revealed and the safety of Mr Johnson’s actions. Mr Smith then advised Mr Johnson that BHPB would be terminating his employment for the reasons outlined.

[82] Mr Johnson’s dismissal was later confirmed by BHPB in a letter dated 3 April 2017 in the following terms:

“I refer to our meeting on 31 March 2017 outlining the findings of the Company’s investigation into allegations about your actions after an evacuation of the Smelter area had been called and explaining that the Company was considering terminating your employment. I note that you chose not to bring a support person to this meeting. Riannon Harrison, Specialist HR Business Partner also attended our meeting on 31 March 2017.

1. Your conduct

As communicated to you, the following allegations have been substantiated:

● You were directed by Kevin Mooney, your supervisor, to inspect BTH5 from a safe distance.

● You stated that the intent of entering the evacuated area was to check the outer insert of the taphole and, if required, isolate the water to prevent further explosions.

● Video footage clearly demonstrated you approaching the area of the flash furnace tapping floor and looking around a vertical beam at the west end of the floor. You then disappears from view to return from a different angle. This time you walk up to BTH5 and stand approximately 1.5 metres away from the tap hole then move to the left hand side of the tap hole to crouch down for a closer look.

● In your interview you stated that you understand that the evacuation procedure states that once an evacuation is called, you need to leave the area immediately.

● You also stated that you do not believe that you exposed yourself to an unnecessary level of risk and that you took appropriate action considering critical time constraints.

Your conduct is entirely unacceptable and in breach of your duties and obligations under:

● Surface Operations Evacuation Procedure

● Smelter 1, Smelter 2 and Acid Plant Feed Preparation Evacuation Procedure

● BHPB Billiton Charter Values, specifically Sustainability – Putting health and safety first

The Company asked you to respond and provide any further information you wanted considered as part of the review of your ongoing employment.

2. Termination of employment

As discussed with you during our meeting on 31 March 2017 the Company has taken all relevant matters into account, including your response in determining the appropriate outcome.

The Company considers that you failed to provide satisfactory responses to the serious issues that have been raised with you.

In the circumstances, given the serious nature of your substantiated misconduct and your breaches of your duties and obligations under the Surface Operations Evacuation Procedure; Smelter 1, Smelter 2 and Acid Plant Feed Preparation Evacuation Procedure and the BHPB Billiton Charter Values, the Company has decided to terminate your employment with effect from 31 March 2017 with a payment of five (5) weeks salary in lieu of notice.”

[83] The receipt of the dismissal letter and the notice payment by Mr Johnson was delayed.

4. Was Mr Johnson’s dismissal unfair within the meaning of the FW Act?

[84] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[85] Mr Johnson was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[86] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[87] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[88] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the Commission’s decision making process and weighed up accordingly.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Johnson’s capacity or conduct (including its effect on the safety and welfare of other employees).

[89] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.²⁰

[90] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.²¹ It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.²² Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.²³

[91] In Woolworths Limited (t/as Safeway) v Cameron Brown²⁴ a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,²⁵ considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(b) the policy, or a direction to comply with the policy, is unreasonable.”²⁶

[92] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,²⁷ Deegan C determined that:

“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.” ²⁸

[93] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1)²⁹ the Court observed:

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”³⁰

[94] Mr Johnson’s conduct essentially involved two related aspects. Firstly, the decision not to leave the furnace building when the evacuation sounded. Secondly, the decision to attend the tapping floor and to inspect the furnace in the circumstances evident at that time. I have dealt with the factual findings associated with the matters earlier in this decision.

[95] In relation to the evacuation, even if Mr Mooney was wrong in making the request to Mr Johnson, it is evident to me that the requirement for all personnel to immediately evacuate was not clearly understood or consistently applied by management or staff at that time. Despite sounding the evacuation, Mr Mooney and others, including the control room personnel and potentially Ms Uys (the actual Incident Controller), were aware that Mr Johnson had not evacuated and no concerns were raised about that by anyone until much later. Further, the policy itself does not provide for an absolute obligation to immediately evacuate and this is confirmed by the approach adopted by Ms Uys and others in not intervening at the time. Indeed, the prospect that plugging and other work may be completed whilst an evacuation is underway – provided that it can be done safely, is expressly contemplated under the procedures. Further, the Incident Controller has, as the name suggests, an important controlling function when an evacuation is sounded. When Ms Uys did intervene, she indicated that the personnel that were not required should leave. On this basis, the failure to immediately evacuate of itself does not represent misconduct or a valid reason for Mr Johnson’s dismissal.

[96] In relation to the inspection of the furnace, I have found that Mr Johnson was requested by his Supervisor (and someone he genuinely considered at the time to be the Incident Controller) to do an inspection of BTH5 to see if the outer was still in place, by looking using the column as a shield and to keep a safe distance. I accept that under the BHPB policies (and under the law more generally), 31 Mr Johnson could have refused to follow a direction if he considered that it was unsafe. In all of the circumstances, including the events as they were unfolding and the role of the Incident Controller under the evacuation procedure, it was not unreasonable that he follow the direction given by Mr Mooney.

[97] However, Mr Johnson’s actions in going beyond the column and approaching the furnace, including by more directly looking into BTH5 twice (once with his safety visor up) was not consistent with the instruction given to him or the duties placed upon him at the time. This included the evacuation procedure and its requirements that any personnel staying behind do so only where safe and appropriate. Despite the check of the computer monitoring system, the absence of flow from BTH5 and that fact the burners and the flow had been turned off at the time, and Mr Johnson’s experience, there was no reliable method of ascertaining what had actually caused the explosions, why the flow had stopped, and whether it would resume. To place himself in the immediate line of a potential further explosion from BTH5 compounded the inherent dangers in making any inspection at all. I also find that this inspection was not operationally necessary, given that the flow from BTH5 had stopped and to the extent that it was done to consider whether the water could/should be turned off, this could have been done without entering the tapping floor area. 32

[98] I do accept that Mr Johnson was motivated to take action to prevent further damage to the smelter. This, along with the request coming from his Supervisor and the steps that were taken before going to the column, and Mr Johnson’s initial approach to the inspection itself by approaching BTH5 from the adjacent BTH, represent relevant mitigating circumstances.

[99] Despite the contextual and mitigating circumstances that I will also return to, the conduct that I have found represents a serious breach of Mr Johnson’s duties.

[100] The policies and procedures of BHPB and the other obligations about conduct during evacuations were sufficiently explained to Mr Johnson and understood by him. They were also reasonable and appropriate given the nature of the industry and the public, personal and business risks associated with the operations of the furnace and the plant more generally. The capacity to make and enforce the general WHS obligations at BHPB, which requires employees to act safely and put safety first, was also reasonable in the circumstances.

[101] I am satisfied that there was a valid reason for dismissal.

Section 387(b) – whether Mr Johnson was notified of the reasons for dismissal.

[102] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.³³

[103] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[104] With one potential exception, Mr Johnson was notified of the reasons. That exception being the fact that Mr Johnson did not have his safety visor down when approaching BTH5 for the second time on 21 March 2017 was considered by Mr Smith but not raised at the show cause or earlier meetings.

Section 387(c) – whether Mr Johnson was given an opportunity to respond to any reason related to his capacity or conduct.

[105] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[106] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. ³⁴

[107] I find that Mr Johnson was aware of the nature of the employer’s concerns about his conduct and the reasons for dismissal and had a reasonable opportunity to respond to these matters. The safety visor aspect being an exception.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Johnson a support person.

[108] There was no refusal. Indeed, Mr Johnson was expressly afforded an opportunity to have a support person attend the show-cause meeting leading to the dismissal.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Johnson – whether he has been warned about that unsatisfactory performance before the dismissal.

[109] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.³⁵

[110] In this case, the dismissal was fundamentally related to conduct.

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

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[111] I deal with these two considerations together.

[112] BHPB is a large business and has dedicated Human Resources expertise that was involved in the process leading to the dismissal.

Section 387(h) - other matters considered to be relevant

[113] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 36

[114] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,³⁷ the Full Bench observed:

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

[115] In this matter there are competing considerations in this regard. These include the nature of the conduct, including its relative seriousness, and the context in which it took place. Without detracting from the earlier discussion, amongst other factors:

● Mr Johnson was requested by his Supervisor, whom he believed at the time was also the Incident Controller, to inspect BTH5 in order to assess the status of the furnace and I have found that it was not unreasonable that he stay and comply given all of the circumstances.
● The conduct by Mr Johnson in going beyond the instructions of Mr Mooney, when he directly inspected BTH5 in the manner that he did, was unsafe and represented misconduct requiring significant sanction, but it was not deliberate misconduct. In part, he was exercising a (very poor) judgment call having regard to his experience in the heat of an emergency.
● Mr Johnson was motivated by a desire to protect the operations of BHPB but he made a significant and serious mistake in judgment that created further risk in an already unsafe environment, when objectively, it was not operationally necessary to do so.
● Mr Johnson was himself a leader in the workplace and this created both a sense of responsibility for others and the plant, and also an enhanced need to follow the policies and other requirements.
● The conduct as found was a valid reason but not all of the alleged misconduct relied upon by BHPB (including the alleged failure to immediately evacuate and the nature of the initial inspection from the column) was supported by the evidence as being misconduct.
● Leading up to the dismissal Mr Johnson did not accept that any mistake had been made. In that regard, I also take into account that this was given in the context of an employee defending an accusation of serious misconduct including the alleged failure to evacuate. I also note here that despite the position advanced in his reply witness statement, which indicated that in future he would immediately evacuate, I have reservations about whether even now, Mr Johnson genuinely accepts that his actions were not appropriate.
● Mr Johnson had 15 years of largely good service, with ten of those as a Specialist.
● Mr Johnson has a single formal warning about related conduct but his response to that warning also indicates a less than ideal approach to safety requirements.
● Mr Johnson was paid in lieu of notice.

[116] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed. 38 Mr Johnson has considerable workplace skills and qualifications relevant to his work at BHPB at Olympic Dam but he lives in a regional location of South Australia where employment opportunities, at least of that kind, are likely to be more limited than in other regions.

[117] Having considered all of the relevant circumstances, I am on balance satisfied that the dismissal was harsh. Without detracting from the earlier discussion and findings, I consider that the mitigating and other circumstances are sufficient to mean that the decision, although based upon the valid reason as found by the Commission, was disproportionate to the conduct. Further, the consequences for Mr Johnson are very significant given all of the relevant circumstances.

Conclusions on the dismissal

[118] I have weighed all of the factors and circumstances of this application.

[119] In Byrne and Frew v Australian Airlines Pty Ltd, 39 the following observations were made by McHugh and Gummow JJ:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[120] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position. 40The Commission is also directed to ensure a “fair go all round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:

“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[121] I have found that there was a valid reason for dismissal. I have also found, on balance, that the dismissal was harsh.

[122] I have taken into account the fact the procedure adopted by BHPB did not involve the safety visor issue being identified and addressed with Mr Johnson. I have also considered the other issues of alleged procedural unfairness raised in the applicant’s written outline of submissions, although not being pressed to any degree at the hearing of this matter. In light of the circumstances, including Mr Johnson’s response on the safety visor issue and that fact that this element was not particularly significant in its own right, I do not consider that the reservations in this regard have impacted upon the fairness of the dismissal.

[123] On balance, having regard to the provisions of s.387 of the FW Act as applied to my findings in this case, I am satisfied that the dismissal was harsh, and as result, it was unfair within the meaning of the FW Act.

5. Remedy

[124] Mr Johnson seeks reinstatement to his former position with associated orders. In the alternative, he seeks compensation. The provision of any remedy is opposed by BHPB.

[125] Division 4 of Part 3-2 of the FW Act provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) 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; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[126] The prerequisites of ss.390(1) and (2) have been met in this case.

[127] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.

[128] Mr Johnson seeks reinstatement to his former position with the maintenance of continuity of service and orders for lost remuneration. He has not secured any significant or on-going work since his dismissal and has taken some steps to seek alternative employment.

[129] BHPB is opposed to that outcome on a number of grounds including that, in effect, it has lost trust and confidence in Mr Johnson to perform work in the future in a safe and policy compliant manner.

[130] In Australia Meat Holdings Pty Ltd v McLauchlan⁴¹ a Full Bench of the AIRC, having considered the language of the Act operating at that time, which is comparable to the present provision, said:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.

... ...

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:

"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits."

While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.”

[131] More recently, a Full Bench of the Commission further considered the statutory scheme surrounding the remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer. In Colson v Barwon Heath,⁴² the Full Bench found as follows:

“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).

...

[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:

“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.

[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.”

[132] The Full Bench further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence,⁴³ and that the approach outlined in Perkins remains sound and requires consideration of the “rationality” of the basis of the employer’s concerns.⁴⁴

[133] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter⁴⁵ the Full Bench conveniently summarised the approach required as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[134] Given the potential remedial benefit of reinstatement in the circumstances of Mr Johnson, it is appropriate to assess the basis upon which that course of action is opposed within the framework provided by the decisions outlined above, along with other considerations bearing upon this discretionary judgment.

[135] In this case, I have, in effect, found that the application of the relevant WHS policies and the maintenance of appropriate discipline within BHPB are important. The impact of a potential reinstatement, together with any associated orders and actions that might be taken by the employer in that regard, is also important.

[136] The nature of the misconduct and the context in which it occurred as set out earlier in this decision are also important considerations. These should also be considered along with the mitigating factors that have led to the finding that the dismissal was harsh and these reinforce the remedial benefit of reinstatement in the circumstances of Mr Johnson to some degree. These include the direction given by his Supervisor and the nature of his actual conduct, his long service, the impact of the dismissal and his circumstances more generally.

[137] I have found that a valid reason for dismissal existed but, on balance, termination was harsh given the all of the circumstances. In some such situations, an order for reinstatement might be appropriate as it is capable of directly addressing the impact of the dismissal.

[138] However, each case must be considered on its own facts and there is no automatic relationship between the findings on merit and remedy.⁴⁶ In this case, I have found that the application of the relevant policy and the maintenance of appropriate discipline in connection with WHS matters within BHPB are very important. Further, the fact that Mr Johnson has not shown any real appreciation of his conduct or contrition, including during the hearing of this matter, leads to genuine concerns about whether reinstatement is appropriate. This must also be considered in the context of the changing environment within BHPB in relation to safety compliance. I am satisfied that there is now a rational basis for the loss of trust and confidence contended by BHPB given all of the evidence before the Commission. This must be considered along with all of the above circumstances to ensure a fair go all around.⁴⁷

[139] Despite the potential remedial benefit of reinstatement to Mr Johnson, I am satisfied that an order of that nature is inappropriate in this case.

[140] As set out above, under the FW Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.

[141] A Full Bench in McCulloch v Calvary Health Care Adelaide⁴⁸ (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg⁴⁹ remains appropriate in that regard.

[142] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act,⁵⁰ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of BHPB

[143] Nothing has been put to the Commission on this issue and is unlikely to arise.

The length of Mr Johnson’s service with BHPB

[144] Mr Johnson had been employed with BHPB for over 15 years. This consideration is supportive of an award of compensation being made. The period of service is also to be taken into account in determining the level compensation, including when making an assessment of the remuneration that would likely have been received if not for the termination.

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

[145] This involves in part a consideration of the likely duration of Mr Johnson’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment. 51

[146] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of ten months including a period of notice. This arises from the length and nature of Mr Johnson’s employment, the nature of the conduct, the nature and timing of the earlier disciplinary action, and the circumstances of the applicant and the workplace more generally. These include the factors that have led to a finding that reinstatement was inappropriate. This estimate is also subject to the later consideration of contingencies.

[147] The projected remuneration that Mr Johnson would have received based upon the anticipated period of employment and his remuneration at the time would therefore be $99,406. This is the projected remuneration lost.

The efforts of Mr Johnson to mitigate the loss suffered by him because of the dismissal

[148] I accept that Mr Johnson has made reasonable efforts to mitigate his losses.

[149] No discount to the amount of compensation is warranted based upon this consideration.

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

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

[150] Mr Johnson has not earned any employment related income since his dismissal other than the payments made by BHPB. He was paid five weeks pay in lieu of notice and this payment should be taken into consideration.

[151] Mr Johnson is not presently employed.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[152] I have taken into account the projected nature of the anticipated loss of remuneration over a relatively long period (s.392(2)(c)) including some months five months beyond the date of this assessment. In that light, and given the circumstances of this case, it is appropriate to make a further allowance for contingencies associated with the projected future remuneration loss and to do so before making other deductions.⁵² Having regard to the normal factors touching upon such an assessment, and in this case, the prospect that another relevant incident could have taken place in the workplace, a discount of 30 per cent is appropriate to the losses projected after the hearing of this matter.⁵³

[153] There is demonstrated misconduct that should be taken into account as provided by s.392(3) of the Act. That is, there is misconduct that contributed to the decision and in the circumstances it is appropriate to make a reasonable deduction on the amount of compensation otherwise due. In the circumstances, a further deduction of 30 per cent of the amount otherwise contemplated is appropriate.

[154] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[155] I will deal with the compensation cap that arises under s.392(5) of the FW Act below.

[156] Taxation is to be paid on the amount determined.

[157] The compensation confirmed below is also appropriate having regard to all of the circumstances of this matter and the considerations specified by the FW Act.⁵⁴

Conclusions on remedy

[158] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the factors outlined above.

[159] The compensation that arises is as follows:

Projected remuneration lost $99,406

Deduction for contingencies (30% of the relevant period)⁵⁵ ($14,911)

Deduction for misconduct (30% of the sub-total) ($25,349)

Deduction for notice ($11,470)

Total $47,676

[160] In the absence of evidence about the actual dollar amount of the notice payment, I have based the value of the notice upon the full remuneration figure. If this is not correct, I will grant liberty to apply in the event that the parties are unable to agree upon any adjustment that might otherwise be required in that context.

[161] The maximum compensation limit in this case is the lesser of 26 weeks remuneration ($59,643) or the statutory cap of $69,450.⁵⁶ The amount of compensation that arises from my findings is less than that limit.

[162] Accordingly, I find that compensation in lieu of reinstatement should comprise a payment to Mr Johnson by BHPB of $47,676.

6. Conclusions and orders

[163] I have found that the Mr Johnson’s dismissal was harsh and therefore unfair within the meaning of the FW Act.

[164] I have found that reinstatement is inappropriate but that compensation of the amount determined above is appropriate in all of the circumstances.

[165] The payment of required compensation, with the appropriate deduction for taxation, is to be made to Mr Johnson by BHPB within 14 days of this decision.

[166] An Order⁵⁷ to the above effect has been issued in conjunction with this decision.

[167] Liberty is granted to seek a variation to the order in the event of a dispute about the impact of the precise monetary value of the notice payment upon the compensation figure.

COMMISSIONER

Appearances:

A Wright of WK Lawyers, with permission, for Mr Johnson.

R Wade of Ashurst Australia, with permission, for BHP Billiton Olympic Dam Corporation Pty Ltd.

Hearing details:

2017

Adelaide

August 7

 1   Exhibit A2.

 2   An informal statement made by Mr Mooney – exhibit A1.

 3   Mr Mooney attended the hearing and provided evidence in response to an F51 Order issued by the Commission.

 4   Exhibit R3.

 5   Exhibit R1.

 6   Item 3 in the book of documents.

 7   Item 2 in the book of documents.

 8   Page 11 of the Code – Item 13 in the book of documents.

 9   Page 11 of the Code – Item 13 in the book of documents.

 10   Page 11 of the Code – Item 13 in the book of documents.

 11   Item 11 in the book of documents.

 12   Item 12 in the book of documents.

 13   Item 4.3 of the Smelter Evacuation Procedure.

 14   Part 5.5 of the Surface Operations Evacuation procedure and 4.3 of the Smelter Evacuation Procedure.

 15   Item 4 of the Smelter Evacuation Procedure and4.8 of the Smelter Evacuation Procedure.

 16   Item 4.3 – 15 of the Smelter Evacuation Procedure.

 17   Exhibit A2.

 18   Incident Cause Analysis Method (ICAM) is an incident and accident causation investigation approach that works on the notion that most incidents and accidents are caused rarely by a single act or condition, but rather by a number of factors working together.

 19   Item 4 in the book of documents.

20 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

21 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

22 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

23 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

24 PR963023 (26 September 2005) (footnotes omitted).

25 PR928970 (19 March 2003) at [14].

26 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].

27 [2009] AIRC 893 (16 October 2009).

28 Ibid at [54].

29 (1992) 41 IR 452 per Sheppard and Heerey JJ.

30 Ibid at p 460.

 31   For example, under WHS laws a worker can refuse to carry out work or stop the work they are doing if they have a reasonable concern that carrying out the work would expose them to a serious health and safety risk arising from an immediate or imminent exposure to a hazard. – s.84 of the Work Health and Safety Act 2012 (SA).

 32   Based upon the evidence of Mr Smith.

33 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

34 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

35 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 36   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

37 [2011] FWAFB 1166.

 38   See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 39   [1995] HCA 24.

 40   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].

41 AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.

42 [2014] FWCFB 1949.

43 Ibid at [49] to [51].

44 Ibid at [60].

45 [2014] FWCFB 7198.

46 See JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520 at [22].

47 Section 381 of the Act.

48 [2015] FWCFB 873.

49 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

50 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

 51   McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873.

52 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

53 Applying the approach taken in McCulloch at [21];

54 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

55 Approximately five months of the anticipated future employment period is post the decision and the contingency deduction has been based upon that proportion of the projected loss.

56 Section 392(5) of the Act.

57 PR595577.

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