DECISION

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

Mr George Barnes
v
BHP Coal Pty Ltd
(U2019/1209)

Application for an unfair dismissal remedy – breach of workplace safety policy and procedure – interpretation of applicable provision – prior warning on safety issue.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr George Barnes (the Applicant), alleging that the termination of his employment from BHP Coal Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on 15 August 2004 and was employed as an Operator/Mine Employee at the Saraji Mine (Mine) immediately prior to the termination of his employment on 17 January 2019.

[3] The Applicant’s role required him to operate heavy vehicle mining equipment. He was fully trained and held appropriate qualifications to work in this capacity, and he had also held statutory qualifications as an Open Cut Examiner (OCE), which required detailed knowledge of managing and responding to safety situations on site.

[4] On 6 October 2018 the Applicant was operating a Rear Dump truck (RD31) at the Mine when it made contact with a haul road bund. The Respondent conducted an investigation, which it submitted concluded that the Applicant failed to comply with a number of the Respondent’s policies and procedures, as a result of the vehicle contacting the bund, including a failure to appropriately report the incident and preserve the scene.

[5] The Respondent submitted that the Applicant was dismissed for misconduct, relying on the findings of the investigation, together with a consideration of a final written warning issued to the Applicant on 18 July 2018, following a prior safety incident.

[6] The Respondent submitted it put the findings of the investigation to the Applicant in its Show Cause letter from Mr Garry Hughes (Superintendent Coal Mining) dated 19 December 2018 (the Show Cause Letter) as set out below.

“Dear George

Findings and Outcome of the Investigation

I refer to our meetings on 7 December 2018 and 17 December 2018 in relation to the Company’s investigation into an incident you were involved in on 6 October 2018. I note that David Mayne, Supervisor Coal Mining also attended the meeting and Brad Crompton attended as your support person / employee representative.

The Company has now concluded its investigation and has made findings in relation to your conduct.

Findings

In making these findings, I have taken into account all of the information that was collected throughout the investigation, including your statement and responses during the investigation.

The investigation found that:

•  On 6 October 2018 at approximately 1.15pm you were operating Rear Dump 31 (RD31) when RD31 made contact with the haul road bund between ROM 7 and HSE Tyre Bay area.

•  You did not report the incident of RD31’s contact with the bund, nor did you make any attempt to preserve the incident scene.

•  You continued driving approximately 2m towards ramp 9, before turning around and driving a further 2km toward ROM 7. You then called up on the two-way radio and said words to the effect that you “thought [you] had a micro-sleep” and you asked for someone to hot seat you.

•  Garth Mangan replied to you and told you to pull into the crib hut at ROM 7 and said he would operate RD31 for you. You did not inform Garth that RD31 had contacted the bund when handing over to him.

During the investigation, you were not forthcoming and failed to provide a frank and candid account during the investigation when questioned about the incident.

(emphasis added)

Breaches

George, these findings are series [sic]. Your actions placed yourself and other coal mine workers at an unacceptable level of health and safety risk.

Your conduct amounts to misconduct and is in breach of Company policies and procedures, including:

•  BHP Our Charter Values, specifically : Sustainability and Accountability

•  BHP Code of Business conduct, specifically Health and Safety

•  RIIVEH201D Generic Surface Mobile Equipment Manual, specifically Accidents and Incident

As you are aware, employees are expected to comply with the Company’s policies and procedures at all times during their employment.

George, I am particularly disappointed in your actions given your previous role as an Open Cut Examiner and your knowledge and understanding of managing incidents on site. It is a fundamental expectation of all coal mine workers to immediately report incidents and preserve the scene of any incident until an investigation can be conducted.

Outcome – Show Cause

In the circumstances, the Company is considering taking disciplinary action against you, which may include termination of your employment. Before considered the appropriate outcome, I would like to provide you with an opportunity to consider the findings above and your employment history with the Company.

You are required to provide a written response and to show cause as to why your employment should not be terminated. Please provide you written response to me by 12pm Friday 21 December 2018 by email to … If you do not provide a written response by this time, the Company will have no alternative but to make a decision in relation to your employment based on the information presently available…

Yours sincerely

…

Garry Hughes

Superintendent Coal Mining

BMA Saraji Mine”

[7] In response to the Show Cause letter issued by the Respondent, the Applicant provided the Respondent with the following letter on 28 December 2018 (the Show Cause Response).

“Dear Gary

RE: SHOW CAUSE

I refer to your letter of 19 December in which you requested I show cause as to why my employment should not be terminated as a result of the findings made by the company arising out of the incident on 6 October 2018. Firstly, in relation to the findings made by the company I wish to state the following:

1. On 6 October at approximately 1.15pm you operating Rear Dump 31 when RD31 made contact with the haul road bund between ROM 7 and HSE Tyre Bay:

I agree with this finding

2. You did not report the incident of RD31’s contact with the bund, nor did you make any attempt to reserve [sic] the incident scene:

I disagree with this finding. After realising I made contact with the bund, I contacted CAR16, who was my supervisor David Mayne. I was instructed that he would look at the bund. Whilst I acknowledge that I did not preserve the scene, I highlight the fact that at no time did David instruct me to preserve the scene or to cease operating the truck.

3. You continued to drive approximately 2km toward ramp 9, before turning around and during a further 2km toward ROM7. You then called up o the two-way radio and said words to the effect that you “thought you had a micro-sleep” and you asked for someone to hot seat you:

I do not recall driving this far. My recollection was that is was only a few hundred metres, 300 at best. I called mind control to report the micro sleep and that I did not believe that I was in a fit state to operate. I requested that I be swapped out and control merely told me to contact my supervisor. I tried my supervisor again but received no response. Again, I highlight the fact that no person from dispatch indicated or instructed me to do anything about the incident, including preserving the scene.

4. Garth Mangan replied to you and told you to pull into the crib hut at ROM 7 and said that he would operate RD31 for you. You did not inform Garth that RD31 had contacted the bund when handing over to him.

I agree with this. It was after I spoke to Garth that I turned RD31 around and drove to ROM 7 as per his instructions. However, again, no one instructed me that RD31 should be taken out of operation of that I should not hand the truck over to Garth to operate.

5. During the investigation you were not forthcoming and failed to provide a frank and candid account during the investigation when questioned about the incident.

I do not understand this statement. I believe that I have been honest and forthcoming during this investigation and you have provided me with no examples that illustrate your statement. I cannot comment on this further unless you can provide me with any examples of statements or situations that you believe support your belief.

In conclusion, I do not believe that your findings accurately portray my actions. I did contact car16 and mine control and I did seek to swap myself out in order to ensure my and other employees’ safety. I did this prior to altering my direction to go to ROM 7 where Garth swapped me out.

However, with hindsight, I understand and acknowledge that there was more that I could have done to preserve the scene, e.g. I could have stopped the truck when I hit the bund and contacted car16. However, I did not intentionally mean to do this at the time I was in a state of confusion over what has occurred and I honestly believe that I made a real and genuine attempt to follow procedure and inform my supervisor of the issue and ensure the safety of myself and others. I wish to highlight that at no time did my supervisor or mine control issue me with direction to preserve the scene or cease operating. Had they done so I can assure you that I would have obeyed their direction.

It is my belief that this was an incident where there was an attempt to follow procedure but due to communication and procedural failings all round, from mine control to the supervisor and myself, more could have been done to preserve the scene and follow procedure. For my part I apologise.

Whilst I understand that I could have done more to preserve the scene, I am still unsure who or why you believe that I have breached the charter values of “sustainability” and “accountability” if you can please explain your reasoning in this regard, I would be happy to respond to this in the future.

You also refer to me breaching policy number RIIVEH201D. It is my understanding that his policy relates to light vehicles. As I was operating a rear dump truck, I am unsure how this policy relates to my actions. If this is an error, I am happy to respond further if you would provide me with the correct policy.

Because of these reasons, I request that you not terminate my employment over this incident and that you instead issue me with other form of lesser discipline which allows me to continue working for BMA.

I have been a BMA employee for nearly 14 years and I believe that in this time I have shown myself to be a trustworthy employee. I understand that I had another incident recently in which I rolled a light vehicle. I accept responsibility for this and the fact that my OCE responsibilities have been taken off me. However, these have been the only incidents I have been involved in during my 14 years of service and I believe that they do not represent my attitude towards safety and work.

I have a mortgage and I am currently providing for my daughter, who is in her 4^th year of university. If my employment were to be terminated, I do not believe that I would be able to continue to support her or pay my mortgage.

If I am allowed to resume my employment, I can assure you that I would do my best to strictly follow procedure and, if god forbid, another incident occurs I would do better to preserve the scene and inform management.

I thank you for your time and hope to resume work soon.

Regards

George Barnes”

[8] Subsequent to the Applicant’s Show Cause Response further correspondence was provided to him by the Respondent on 3 January 2019. This correspondence (set out below) sought to clarify issues raised by the Applicant in his Show Cause Response.

“Dear George

Show Cause Response

I refer to your letter dated 28 December 2018 in response to the Company’s letter to you dated 19 December 2018 requesting you to show cause as to why your employment should not be terminated (Show Cause Letter).

As you have identified in your response of 28 December 2018, the Show Cause letter incorrectly states that your conduct on 6 October 2018 is in breach of RIIVEH201D Generic Surface Mobile Equipment Manual, specifically Accidents and Incidents (Policy). I wish to clarify that the relevant policy that applies and which you failed to comply with is the Generic Surface Mobile Equipment Training Manual, specifically Accidents/Incidents.

Before deciding the appropriate outcome, I would like to provide you with an opportunity to review the Generic Surface Mobile Equipment Training Manual, specifically Accidents/Incidents and provide any information you would like me to consider by 12pm Friday 4 January 2019. Please provide your written response email to … If you do not provide a written response by this tiem, the Company will have no alternative but to make a decision in relation to your employment based on the information presently available.

Employee Assistance Program

George, I understand that this may be a difficult time for you. I wish to remind you that a professional, confidential counselling service is available to you, free of charge through our EAP provider. Appointments may be made by contacting Gryphon Psychology directly on …

If you are unclear on anything covered within this letter, please contact me on …

Yours sincerely

Garry Hughes

Superintendent Coal Mining

BMA Saraji Mine”

[9] In response to the further opportunity to provide written material to the Respondent afforded by the letter of 3 January 2019 (as set out in paragraph [8] above), the Applicant provided the following letter to the Respondent on 7 January 2019.

“Dear Gary

RE: SHOW CAUSE

Thank you for the opportunity to further respond to your show cause request in your letter of 3 January 2019. I have reviewed the “Generic Surface Mobile Equipment” training manual.

Specifically, you refer to the section entitled “Accident/Incidents.” I have reviewed this and make the following comments.

Firstly, as per my previous statements, after the incident occurred, I called up car 16 and informed my supervisor that I had hit the bund. I believe that this complies with the expectation that any incident be “reported as soon as reasonably possible.”

Secondly, whilst I have admitted that I could have done more to preserve the scene, I do not believe that the training manual required me to perform this task on 6 October 2018. The training manual states that “after an accident, the mobile equipment should remain parked up and the situation secured until the accident is fully investigated in line with site requirements.” It is my understanding that the matter was only an incident not an accident. As the manual states:

“(the only real difference between an accident and an incident/near miss is the result, in an accident someone injured and/or mobile equipment damaged, in a incident/near miss the causes may be the same as an accident but there is no obvious loss – is injury/damage.)”

Given that there was no obvious injury or damage to a person or equipment, I do not see how the matter could be classified as an “accident” and therefore why my actions would be in breach for not failing to preserve the scene. I am struggling to see how my actions have breached my requirements under company policy.

If you wish to explain to me how you believe that this training manual applies to my actions further, please do so.

(Emphasis added)

Regards

George Barnes”

[10] The Applicant’s employment was terminated on 17 January 2019. That termination was communicated to him by letter as set out below.

“Dear George

Your employment

I refer to the recent investigation in Allegations about your conduct, following an incident that occurred at Saraji mine on 6 October 2018. I also refer to the meeting on 19 December 2018, and the correspondence (“Show Cause Letter”) dated 19 December 2018 advising you of the findings of the investigation and asking you to show cause as to why your employment should not be terminated. This meeting was attended by yourself, Garry Hughes (Superintendent Coal Mining), Liam Clancy (Coal Coordinator) and Brad Crompton (your employee representative). You submitted your written response on 7 January 2019. I have now considered your response.

Outcome – Termination of Employment

George, I have taken all relevant matters into account, including the investigation findings, your written response to the Show Cause Letter and your employment history. I note that you are currently on a Step 3 Final Warning for a previous safety incident that occurred on 23 June 2018.

I have considered your written response to the Show Cause Letter. While I accept that you called up Car 16 and informed your supervisor via radio that you hit the bund, I am not satisfied that you did this as soon as reasonably practicable after the incident. Rather, you did so after driving approximately a further 2 kilometres after the incident.

Secondly, I do not accept your view that:

- The event was only an incident and not an accident due to lack of injury and / or mobile equipment damage; and

- As the event was only an incident, you were not required to preserve the scene as per Generic Surface Mobile Equipment Manual (Accidents and Incidents).

I note that in order to make this determination it was incumbent on you to stop at the scene and assess the situation for any “obvious injury or damage to a person or equipment”, which by your own admissions you did not do.

George, you are aware that this incident was classified as a HPI (High Potential Incident). Your responses throughout the investigation and to the Show Cause letter have been inconsistent, and I feel you have shown a lack of accountability given your involvement in two High Potential Safety Incidents within a six month period. I find your conduct and your lack of safety accountability to be extremely concerning, particularly having regard to your statutory Open Cut Examiner qualifications and prior experience as an OCE at Saraji mine. Whilst I have considered your request to move to another work area, I have no confidence in your ability to safely work at Saraji mine.

For the reasons above, I have decided to terminate your employment with effect from today, 17 January 2019.

(Emphasis added)

In accordance with the BMA Enterprise Agreement 2018, BMA will make a payment to you equivalent to five (5) weeks’ pay in lieu of notice of termination of your employment… (Emphasis added)

Yours sincerely

Brent McKay

Manager Production Coal

BMA Saraji Mine”

[11] The Applicant submitted that the investigation undertaken by the Respondent was not procedurally fair, because the responses he provided during the investigation, namely that the actions taken by him were in line with the Respondent’s internal policies and procedures, and were not considered by the Respondent.

[12] The Applicant submitted that his age, length of service, contrition and good disciplinary history over the course of his employment made the decision to terminate his employment harsh, unjust or unreasonable. He sought reinstatement as well as compensation for lost wages from the date of termination.

[13] There were significant differences in the parties’ views about the facts of the incident on 6 October 2018 and the findings of the investigation.

[14] The matter was listed for conference, however was unable to be resolved. Directions were set for the filing of material. The Applicant was represented by Mr Chris Newman, Legal Officer with the CFMMEU, and the Respondent was represented by Mr James McLean, Legal Counsel for BHP Billiton.

[15] The matter was heard at the Mackay Courthouse, with final submissions in Brisbane.

[16] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT LEGISLATION AND POLICIES

[17] Pursuant to s.394 of the Act:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[18] Further, ss.385, 386 and 387 of the Act relevantly provide:

“385 What is an unfair dismissal

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[19] Pursuant to s.390 of the Act:

“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.”

[20] Pursuant to s.200 of the Coal Mine Safety and Health Act 1999 (Qld):

“Site not to be interfered with without permission

(1) A person must not interfere with a place at a coal mine that is the site of a serious accident or high potential incident of a type prescribed by regulation, without the permissions of an inspector.

(2) Permission under subsection (1) must not be unreasonably withheld.

(3) For this division, action taken to save life or prevent further injury at a place is not interference with the place.

[21] Pursuant to s.17 of the Coal Mine Safety and Health Act 1999 (Qld) a High Potential Incident is described as:

“Meaning of High Potential

A “high potential incident” at a coal mine is an event, or a series of events, that causes or has the potential to cause a significant adverse effect on the safety or health of a person.”

[22] Pursuant to r.14 of the Coal Mining Safety and Health Regulations 2017 the types of serious accidents or high potential incidents referred to in s.200 of the Coal Mining Safety and Health Act 1999 are defined as below:

“Types of serious accidents and high potential incidents – Act, ss 200 and 201

(1) For section 200(1) of the [Coal Mining Safety and Health] Act [1999], a type of serious accident or high potential incident mentioned in schedule 2, part 1, is prescribed.”

[23] Part 1 of Schedule 2 of the Coal Mining Safety and Health Regulations 2017 enumerates those serious accidents and high potential incidents referred to in rule 14 of the Regulations for the purposes of s.200(1) of the Coal Mining Safety and Health Act 1999 (Qld) as set out below:

“Part 1 - Types for section 200(1)

1 an incident causing the death of, or a serious bodily injury to, a person

2 an unplanned ignition of gas, dust, or a combination of gas and dust

3 damage to, or failure of, haulage equipment used to transport a person in a shaft or slope, if the damage or failure causes a hazard

4 the failure in service of explosion protection of explosion-protected equipment

5 a failure of electrical equipment or an electrical installation causing an electric shock to a person

6 an unplanned ignition or explosion of a blasting agent or explosive

7 a major structural failure of equipment, if the failure causes a hazard.”

[24] The Respondent’s Generic Surface Mobile Equipment Training Manual in relation to Accidents/Incidents provides the following:

“All accidents, incidents and near misses must be reported as soon as reasonably possible. If you are involved in an accident, arrange for help as per the site’s emergency procedure. If a hazard to other roadway users exists as a result of the accident, place safety triangles on either side of the accident as a warning. After an accident, the mobile equipment should remain parked up and the situation secured until the accident is fully investigated in-line with site requirements.

All near misses or hazards identified whilst operating the mobile equipment must be reported in-line with the site’s hazard/incident reporting system as they indicate potential accidents. (The only real difference between an accident and an incident/near miss is the result, in an accident someone is injured and/or mobile equipment damaged, in an incident/near miss the causes may by the same as an accident but there is no obvious loss – i.e. injury/damage).”

[25] In relation to fatigue, the Generic Surface Mobile Equipment Training Manual provides that:

“If you are suffering from fatigue and believe your safety or the safety of others may be compromised, stop work and notify your supervisor.”

[26] That same manual, in relation to pre-start/walk-around inspections provides that:

“The pre-start/walk-around inspections are conducted to ensure the mobile equipment is safe and prepared for operations, and to detect faults before they become major failures. A pre-start/walk-around inspection therefore occurs as soon as practical after taking over control of mobile equipment, even if a ‘hot seat’ changeover has occurred. The operator is responsible for ensuring that the required pre-start inspections are completed.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[27] The Applicant submitted that while working as an operator at the Saraji mine and operating a rear dump truck (RD31) on 6 October 2019, he suffered a ‘microsleep’ that caused him to contact a bund next to the haul road. He submits that upon regaining his senses he realized that the left two tyres of RD31 had mounted the bund and that he immediately drove off the bund.

[28] The Applicant gave evidence that shortly after contacting the bund, using his rear vision mirror; he assessed the damage to the bund to be minimal and considered that RD31 was working normally and that as the contact with the bund was only slight he did not believe it had caused any damage to the truck.

[29] It is submitted by the Applicant that after driving approximately 200-300 metres after making contact with the bund, the Applicant called his supervisor Mr David Mayne to ensure the incident was recorded. On the Applicant’s evidence, Mr Mayne stated words to the effect that he would ‘look at it later on’.

[30] The Applicant submitted that after speaking with his supervisor, he continued to drive but felt uneasy and upset about what had occurred and concluded that he was unable to continue driving without a fatigue break. As a result he pulled off the haul road approximately 2 kilometres from the bund and contacted mine control on the two-way radio requesting a break. The Applicant submits that he was told by mine control that he needed to contact his supervisor. The Applicant gave evidence that upon doing so, he received no response from Mr Mayne.

[31] It is submitted by the Applicant that after trying to contact his supervisor to request to be swapped out, the Applicant was responded to be Mr Garth Mangan who had heard the Applicant’s request and offered to swap him out. The Applicant gave evidence that Mr Mangan was located at ROM7 and it was for that reason that the Applicant turned around on the haul road and drove back past the bund he had previously contacted.

[32] Upon reaching ROM7 the Applicant conceded that he does not believe that he mentioned the incident to Mr Mangan as he was shaken up from contacting the bund whilst having a microsleep.

[33] The Applicant submitted that he contacted his supervisor from the crib hut once he was swapped out. The Applicant gave evidence that he waited for Mr Mayne at that crib hut before the two of them proceeded to the medical centre for the Applicant to be examined. The Applicant submitted that while travelling to the medical centre, he and Mr Mayne passed the bund which the Applicant identified for his supervisor. The Applicant gave evidence that Mr Mayne made a comment about needing to photograph the bund, but they did not stop.

[34] The Applicant submitted that after the incident he was not allowed to operate any machinery during the rest of that roster and that at the end of his roster swing he was informed by Mr Mayne that he was being stood down due to the incident.

[35] On 7 December 2018 the Applicant (with Brad Crompton as his Union representative) met with Mr David Mayne and Mr Garry Hughes. The Applicant gave evidence that he recalled being asked a number of questions about the incident and that it was alleged that the Applicant did not stop, preserve the scene and call his superiors. The Applicant submitted that he told Mr Mayne and Mr Hughes that he did call his superiors, but agreed that he did not stop immediately or preserve the scene.

[36] On 17 December 2019 a further meeting was held between the Applicant, Mr Mayne and Mr Hughes. The Applicant submitted that this meeting was similar in content to the 7 December 2019 meeting and that Mr Hughes continued to allege that the issue with the Applicant’s conduct was that he failed to call up, stop and preserve the scene. The Applicant submitted that he repeated his assertion that he had called his supervisor to report the incident.

[37] Another meeting was held between the Applicant (with Mr Crompton) and Mr Mayne and Mr Hughes on 19 December 2019. At this meeting the Applicant was provided with a show cause letter and the Applicant submitted that no explanation was provided of why or how the Applicant had breached the policies alleged to have been breached in the show cause letter.

[38] The Applicant submitted that the Respondent did not have a valid reason for dismissing the Applicant because the Applicant’s actions did not result in any specific breach of any of the Respondent’s policies or procedures.

[39] In addressing the Respondent’s allegation that the Applicant did not call up ‘as soon as possible’ in accordance with the accidents/incidents section of the Generic Surface Mobile Equipment Training Manual, the Applicant submitted that he had consistently maintained that after he drove onto the bund he called his supervisor to inform him of what had occurred.

[40] The Applicant submitted that he contacted his supervisor approximately 300 metres past the point at which he drove onto the bund and that such action taken, on any objective measurement by a reasonable person is, as soon as possible. However it was said by the Applicant that as the training manual does not state what is considered to be ‘reasonably possible’, even if the Respondent’s position that the Applicant contacted Mr Mayne some 2 kilometres past the point of contact, it is submitted that the Applicant’s actions still amount to reporting ‘as soon as possible’. This submission was made on the basis that the position in which the Applicant stopped to request to be swapped out (nearly 2km from the bund) was the first available place that a rear dump truck could safely pull up. Accordingly it was argued any reasonable person looking at the situation objectively would find that the Applicant contacting his supervisor, to report hitting the bund within 2 kilometres, would still be reporting it when reasonably possible. It was said by the Applicant that there was no explanation, evidence or rationale provided by the Respondent for its finding that the Applicant did not report the matter as soon as reasonably possible. It was contended that in order to make such a claim, some reasonable basis or some form of evidence (including training or other policy) explaining what is meant by ‘as soon as reasonably possible’ was required.

[41] In relation to the finding by the Respondent that the matter was not an ‘incident’ as defined and that the Applicant was required to preserve the scene, the Applicant submitted that such a finding by the Respondent cannot be correct on any reading of the Respondent’s training manual. It was said by the Applicant that the obligation to preserve the scene arose only in situations where an ‘accident’ had occurred and having regard to the manual’s distinction between an ‘incident’ and an ‘accident’, the Applicant’s driving onto the bund but with no injury or damage could only be characterised, as an incident, which does not create an obligation to preserve the scene.

[42] The Applicant submitted that his conduct during and after the incident of 6 October 2018 complied with the Respondent’s internal policies and procedures. He submitted that he suffered a microsleep while operating the vehicle RD31 on 6 October 2018 and this resulted in the vehicle contacting the road bund. The Applicant submitted that once he had regained his focus and driven off the bund, he immediately contacted his supervisor, Mr David Mayne, to report what had happened.

[43] The Applicant submitted that he made this call after driving approximately 300 metres away from the bund, and that this was sufficient to comply with his obligation to report “all accidents, incidents and near misses….as soon as possible.”

[44] The Applicant submitted that the investigation and disciplinary processes undertaken by the Respondent were not procedurally fair for a number of reasons, including that the Respondent failed to properly identify the relevant internal policies or procedures that the Applicant was alleged to have breached, that the Applicant was not put on notice that the Respondent was considering his Final Warning issued in July 2018 as part of the decision to terminate his employment and he was not provided with an opportunity to respond to this, and that the Respondent did not properly consider the Applicant’s responses during the investigation.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[45] The Respondent submitted that the Applicant’s employment was terminated after it undertook a robust investigation into the incident on 6 October 2018 where the Applicant was given a number of opportunities to provide a response to the allegations against him. Ultimately the investigation concluded that the Applicant’s conduct contravened a number of internal policies, and the Respondent submitted it took appropriate disciplinary action based on these findings.

[46] The Respondent primarily submitted that the Applicant failed to exercise his duties under the Generic Surface Mobile Equipment Training Manual. The Respondent submitted that the Applicant had undertaken dedicated training on the Manual on at least two documented occasions, 18 February 2014 and 31 July 2017, and was therefore familiar with his obligations under the Manual.

[47] The Respondent submitted that the conduct of the Applicant giving rise to a valid reason pursuant to s.387(a), jointly and severably were as follows:

•  The failure of the Applicant to report the incident as soon as reasonably possible;

•  The failure of the Applicant to park-up his vehicle following the incident;

•  The decision the of the Applicant to continue driving his vehicle post-incident;

•  The manner in which the Applicant handed over the vehicle;

[48] The Respondent submitted that the above reasons constituted a serious breach of their workplace safety policies and procedures, and as such warranted the Applicant’s dismissal, referring to the passage from Deputy President Asbury in Macklyn v G&S Engineering Services Pty Ltd 1 who stated:

“A serious breach of workplace health and safety policy or an incident where an employee places health and safety at risk, will generally constitute a valid reason for dismissal.”

The failure of the Applicant to report the incident as soon as reasonably possible

[49] In relation to the Applicant’s failure to report the incident as soon as reasonably possible the Respondent submitted this duty was unambiguously and clearly expressed within the Generic Surface Mobile Equipment Training Manual.

[50] The Respondent argued that the Applicant did not report the incident to his manager until, at the earliest, after the Applicant pulled into Ramp 9. This was more than 2 minutes and 950m after the Applicant made contact with the bund wall. The Applicant did not offer a justification for his failure to report the incident prior to this. The Respondent contends that this constituted a clear contravention of the Applicant’s obligation under the Manual.

[51] The Respondent submitted that the failure of the Applicant to report the collision as soon as reasonably possible endangered the safety of both light and heavy vehicle operators, as well as compromising the Respondent’s ability to:

•  Conduct a proper investigation into the cause of the collision;

•  Implement proper incident management; and

•  Take remedial measures to ensure the safety of persons at the mine.

The failure of the Applicant to park-up his vehicle following the incident

[52] The Respondent acknowledges that the Manual only requires an operator to park up in the event of an ‘accident’ and not an ‘incident’. However the Applicant, by his own admission, had no regard for the manual for the first 300m after the collision. And, in any event, at no stage during 6 October 2018 did the Applicant know that the vehicle had not sustained any damage. This resulted in the Applicant being unable to reasonably determine whether or not the collision that had occurred would have constituted an ‘accident’ or an ‘incident’ at the time.

[53] This demonstrated clear disregard by the Applicant of his obligations under the management protocol. The Applicant’s reliance on his belief that the collision was an ‘incident’ and not an ‘accident’ could not be supported with the information that he had before him at the time.

•  decision the of the Applicant to continue driving his vehicle post-incident

[54] The Applicant’s decision to continue driving the vehicle after the collision was a breach of his obligations under the Manual and demonstrated a contemptuous disregard for the safety of others. The Manual unequivocally requires persons who are exhibiting signs of fatigue to stop work. The Applicant had experienced a micro sleep, and then proceeded to continue operating the vehicle. The Respondent submitted that this micro sleep clearly constituted symptoms of someone who was dangerously fatigued. By continuing to operate the vehicle for a further 1.9km, after having had just fallen asleep at the wheel, failing to investigate the vehicle or scene for damage, and being in a state of confusion, the Applicant contravened his obligations under the Manual.

[55] The Respondent submitted that by choosing to continue to operate the vehicle, despite being aware of alternative options available to him, the Applicant made a decision to engage in a course of conduct that he knew presented a risk to others.

The manner in which the Applicant handed over the vehicle

[56] Upon returning to Crib 7 the Applicant handed over his vehicle to another operator, despite admitting that at this time he did not know that the vehicle was not damaged, he did not assess the vehicle for damage before handing it over and he did not tell the other operator, Mr Mangan, that the vehicle had been involved in a collision.

[57] The Applicant’s failure to advise Mr Mangan that the vehicle had been involved in a collision and his failure to ensure a proper inspection of the vehicle prior to allowing Mr Mangan to drive off in the vehicle demonstrated a complete disregard for the safety of a co-worker.

[58] The failure of the Applicant to conduct a proper inspection of the vehicle prior to handover was a breach of his obligations under the Manual to “conduct a visual inspection [that includes] the same checks made during the pre-start/walk around inspection. Accordingly the Respondent submitted that this constituted a valid reason for termination.

CONSIDERATION

[59] The following criteria in s.387 must be considered in assessing whether the dismissal was harsh and just or unreasonable

s.387(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);

[60] The Respondent recorded the reason for dismissal on the letter of termination dated 17 January 2019:

“George, I have taken all relevant matters into account, including the investigation findings, your written response to the Show Cause Letter and your employment history. I note that you are currently on a Step 3 Final Warning for a previous safety incident that occurred on 23 June 2018.

I have considered your written response to the Show Cause Letter. While I accept that you called up Car 16 and informed your supervisor via radio that you hit the bund, I am not satisfied that you did this as soon as reasonably practicable after the incident. Rather, you did so after driving approximately a further 2 kilometrres after the incident.

Secondly I do not adopt the view that:

•  The event was only an incident and not an accident due to lack of injury and/or mobile equipment damage; and

•  As the event was only an incident, you were not required to preserve the scene as per Generic Service Mobile Equipment Training Manual (Accidents ad Incidents).”

[61] The Applicant acknowledged he could have done more to preserve the scene but he did not consider he was obligated to do so in accordance with the training manual. He stated that the training manual set out that after an accident the mobile equipment should remain parked up and the situation secured until the accident is fully investigated in line with site requirements. His assessment was that the matter was an incident not an accident. That is the training manual states the only real difference between accident and an incident near me as is the result in an accident someone is injured and/or mobile equipment is damaged, and in an incident near miss the courses may be the same as an accident but there is no obvious loss or injury damage.

[62] In this matter there was no obvious injury or damage to a person or equipment and therefore the Applicant considered it could not be classified as an accident and accordingly his actions could not be in breach of the policy for failing to preserve the scene. He further questioned how it could be considered that his actions breached the requirements under the company policy. He also considered he complied with the training manual by reporting the matter as soon as was reasonably possible as after the incident occurred he called up Car 16 and informed his supervisor that he had hit the bund.

[63] In response in the termination letter, Mr McKay, the Manager Production Coal noted that the Applicant was on a step three final warning for a previous safety incident on 23 June 2018. He accepted that the Applicant had called up Car 16 and informed his supervisor via radio that he had hit the bund but he was not satisfied that he did this as soon as reasonably practicable after the incident, but after driving approximately a further 2 km after the incident. Further he did not accept the Applicant’s view, that the event was only an incident not an accident, due to lack of injury and or mobile equipment damage and as the event was only an incident (as the Applicant, as suggested) he was not required to preserve the scene as per the Generic Service Mobile Equipment Training Manual. His finding was that it was necessary for the Applicant to stop at the scene to consider the situation for any obvious injury or damage to personal equipment. He’s finding was that the Applicant did not do this, and this was a breach of policy.

[64] The letter importantly stated that the incident was classified as a High Potential Incident (HPI) and that the Applicant had then been involved in two High Potential Incidents within a six month period. The employer considered the conduct of the Applicant demonstrated a lack of safety accountability which was extremely concerning, particularly as the Applicant had been a statutory Open Cut Examiner at Saraji mine. It was recognised that the Applicants request to move to another work area was considered but it was expressed that there was no confidence in his ability to safely work at the mine. The Applicant was paid five weeks wages in lieu notice of termination.

I am satisfied that there was a valid reason for dismissal in that the Applicant:

•  Did not report the incident as soon as reasonably practicable; and

•  Should have, and did not, immediately park-up.

In circumstances where an experienced mine employee says he fell asleep while driving a very large, very expensive and very dangerous piece of equipment, the Applicant’s conduct is alarming.

s.387(b) whether the person was notified of that reason;

[65] The termination letter set out that the dismissal was due to a breach of the incident and accident sections of the Generic Service Mobile Equipment Training Manual; that is the failure to report the incident as soon as reasonably possible and the failure to preserve the scene. Further breaches of the code of conduct and charter values were also alleged in relation to the incident where the Applicant drove onto a bund.

[66] The Applicant argues that the dismissal was based on the documentation and evidence collected by Mr Hughes and compiled in exhibit 8. The Applicant’s representative submits that Mr McKay’s decision to dismiss the Applicant was an error, as it relies on that summary of evidence and allegations which contains errors and misrepresents the alleged breaches of the policies, and therefore the considerations are not applicable to the Applicant’s actions in relation to the incident. Accordingly, the Applicant argues the termination decision is not reliable as the incident was not properly characterised by the investigator, Mr Hughes. It is argued that there was a failure to collect evidence in relation to the incident in a timely manner, and that information provided by the Applicant was not recorded, and there was no appropriate follow-up on the information and relevant evidence and statements were not put to the Applicant. It was argued that these errors are significant in that the Applicant was denied an opportunity to respond to or correct the Respondent’s consideration of the matter.

[67] The Applicant was notified of the reasons for his dismissal in the letter dated 17 January 2019. Prior to this, a Show Cause letter detailing the findings and outcome of the investigation into the alleged misconduct was sent on 19 December 2018. Following this, another Show Cause letter was sent to the Applicant on 3 January 2019.

[68] The Respondent’s letters however did not clearly set out the specific details of the alleged breaches against the policies. The Union sought detail this explanation on behalf of the Applicant. This sufficient detail was not provided by the Respondent’s at the initial stages. The material was subsequently provided and the employer took into account the deficiency in its initial correspondence and the Applicant’s response to the specific allegations. The Applicant was notified of the precise nature of the reasons for the dismissal given the Applicant’s experience at the mine he was well aware of the reasons for the dismissal. It is determined that the Applicant was provided with an opportunity to respond to the reasons related his conduct, resulting in the decision.

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

[69] The Applicant was provided with the opportunity to respond to the stated reasons for his dismissal on 19 December 2018, following the letter detailing the findings and outcome of the investigation into the Applicant’s alleged misconduct. The Applicant was further invited to provide a response to the Show Cause letter, that was sent on 28 December 2018.

[70] The Applicant’s representative however noted that the Applicant’s ability to respond was compromised by not having the exact nature of the breaches. However, when this detail was provided, the Applicant’s responses did not materially change. He was not however, until the Hearing given the opportunity to respond to the tracking details of the truck he was operating (in terms of when he stopped in time and distance and the route the truck changed). Again this did not alter the Respondent’s response that the Applicant should have stopped at the scene and checked the scene for damage and or injury.

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

[71] The Applicant was not refused a support person and at all times the Union ably represented him.

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

[72] The Applicant’s dismissal directly related to his conduct in not stopping when the event occurred and not immediately checking the vehicle and the bund for damage. He then allowed another employee to take over the vehicle without having the vehicle checked for damage first or informing that employee that the vehicle had been involved in a collision. Consideration of this incident was taken into account, in addition to his prior warning for a safety incident, also involving the vehicle he was driving.

[73] The Applicant had been stood down on full wages whilst the investigation occurred and for the exchange of information between the parties. These periods had been taken into account in allowing for the collection period that would have been required for the supply of the further information, regarding the alleged deficiencies of information, (in relation to what must be determined as an incident, given there was no damage to the vehicle or the bund and no injury to the Applicant). However at the time of the occurrence, when the Applicant proceeded in the vehicle, he was not aware of these factors as to whether there was any damage. This is why compliance with the procedures was required, to stop and check the site. The submission on the interpretation of the wording by the Applicant’s representatives is noted. The Show Cause letter does not accurately reflect the circumstances of the comparison with the wording of the documents and it has been noted that a period was required to supply the relevant information to allow for that interpretation.

[74] The Applicant was paid for this period while he was stood down, as these exchanges were occurring. Further he was paid five weeks wages in lieu of notice and this period would also, allow for the necessary corrections and exchanges on the observations, against the policies. The Applicant’s conduct however in not stopping the vehicle and checking the bund and the vehicle is a significant breach of the safety requirements.

[75] Mine sites are inherently dangerous workplaces and employees owe a duty of care to their employer and the other employees. These obligations were not appropriately observed by the Applicant in the circumstances and it was fortunate that the outcome was that there was no injury to the Applicant or the other employee taking over the unchecked vehicle and that there was no damage in the circumstances. This is all considered in the circumstances; where the Applicant had an elevated knowledge of the safety requirements and compliance needed given his experience as an Open Cut Examiner at the mine and he was subject to a final warning (involving prior significant safety circumstances).

s.387(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 s.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;

[76] The Respondent is a large employer with dedicated human resources staff and in-house legal counsel, accordingly the process has been considered against this standard.

[77] The communication and assessment of the circumstances, was affected by the lack of specific information about the alleged breaches of the policies and procedures. The necessary detailed information was provided later. The fact that the Applicant’s representative emailed a request for more specific information regarding the non-compliance with the policies and code of conduct and this was not sent until such later stage, has been considered in terms of the natural justice afforded to the Applicant. The Applicant was entitled to the information as requested, at an early stage in order to prepare the response to the show cause, in full knowledges of the alleged breaches. The Applicant was entitled to the satellite tracking information of the truck at the time when the allegations were put to him. However the Applicant having operated as an Open Cut Examiner, had a full knowledge of the safety requirements and obligations of employees at the mine site and his required obligations and actions as associated with them. The presentation of this information at a later stage when the Applicant had been stood down on pay, still afforded him a full opportunity to respond, even though it was at a later stage. The later provision of this information has not significantly affected the Applicant’s responses, given the further opportunity to respond.

s.387(g) any other matters that the FWC considers relevant

[78] The Applicant considered there were mitigating circumstances in terms of the dismissal, as it was suggested that the employer’s findings did not accurately portray his actions in relation to the incident. The Applicant conceded he could have done more to preserve the scene, by stopping the truck after it hit the bund and then contacted Car 16. However he submitted that he was in a state of confusion (having had an unexplained micro sleep) and that he considered he had made a real and genuine attempt to comply with the procedure and inform his supervisor of the issue and ensure the safety of himself and others. It was also submitted that it was relevant that his supervisor or mine control had neither issued a direction to preserve the scene or cease operating. His obligation was to stop and assess the scene. In driving off he did not know whether it was an accident or an incident. He was unaware at that point if damage had occurred to the vehicle. It was a significant breach of his safety obligations to pass the vehicle to another employee, without a proper report or check. The Applicant’s conduct is assessed against his past operating experience and knowledge as an OCE.

[79] It is recognised that despite early requests, when asked to respond to the alleged breaches of policy and procedure, he noted, he was uncertain as to how it was considered that he had breached the charter values of sustainability and accountability. A reasonable response from the employer, early in the procedure could have remedied the issue for the Applicant; being asked to respond to matters that were not clear to him, (despite requests for information from his Union, regarding the breaches of these policies and procedures). Further he queried the alleged breach of the policy, which he understood was a policy that related to light vehicles which was not relevant to the operations of rear dump trucks.

[80] These mitigating issues, arising from the policies, and information presented have been considered, as was his concession. He also requested that the employer take into account his length of service of 14 years and that his employment be maintained and in lieu of the termination he be provided with a lesser form of discipline.

[81] He stated he accepted responsibility for the prior recent incident in which he rolled a light vehicle, but that these had been the only two incidents during his 14 years of service. He emphasised that if his employment was maintained he would strictly follow procedure. He set out that he has a mortgage and was currently providing for his daughter, a fourth year university student and if his termination was upheld, he would struggle to meet these obligations.

[82] In the Show Cause response the employer identified that the Generic Service Mobile Equipment Training Manual was the policy that was applicable and that the Applicant failed to comply with this. The Applicant was given a further period to review this policy and respond. In response to the relevant section on accidents and incidents, the Applicant replied that after the incident occurred he called up Car 16 and informed the supervisor that he hit the bund. Again he confirmed, he recognised, he could have done more to preserve the scene. However, he considered he had complied with the expectation that any incident be reported as soon as reasonably possible. He could not have been certain at that point, it was not an accident, as he had not stopped and checked the vehicle. He was referred to the training manual, that stated, that after an accident, the mobile equipment should remain parked up in the situation, secure until the accident is fully investigated, in line with site requirements. He distinguished the matter as an incident rather than an accident, but as set this response to the situation was premature. He had not confirmed matters. He specifically, referred to an extract of the manual which stated the only real difference between an accident and incident/near miss is that the result of an accident is someone is injured and/or mobile equipment is damaged. The Respondent’s attitude was reasonable, that in establishing the circumstances, the Applicant must stop to assess the damage, and report back. This however, was not done in an appropriate manner.

Conclusion

[83] The Applicant’s failure to stop after hitting the bund but instead making an assessment in his rear vision mirror, whilst driving, could not be supported as an appropriate response for an experienced employee.

[84] The arguments on the different interpretations of the policies and procedures in addition to the application of the Mining Act, have been taken into account in allegedly causing confusion. The issues with the application of the policies and the information as presented to the Applicant, to respond to in the Show Cause Letter, was unclear initially. The matter was straight forward in practice. The Applicant hit the bund with a heavy vehicle and should have stopped to assess; himself and whether there was any damage to the vehicle and the bund, and also to report the matter. In managing a mine, a significantly, potentially dangerous worksite, the employer’s lack of trust and confidence in returning the Applicant to the discharge of his duties in heavy equipment on this mine site is recognised. The circumstances of the Applicant having a micro sleep are not sufficiently explained. Further to that, the Applicant drove on for some 1.9 kilometres rather than stopping the vehicle and assessing the damage to the equipment and himself. Given all of the circumstances, including the Applicant’s prior significant safety event, I am satisfied taking into account the criteria in s.387, on the evidence, that the decision to terminate was not harsh, unjust or unreasonable. The dismissal is not considered to be unfair. The application made pursuant to s.394 is therefore dismissed.

[85] I Order accordingly.

COMMISSIONER

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 1   [2013] FWC 5303 at 66.