[2016] FWC 7351


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Malachi Harvey
MMG Australia Ltd



Application for unfair dismissal remedy.

[1] Malachi Harvey was employed by MMG Australia Ltd (MMG) at its mine in Rosebery, Tasmania as a Level 3 Operator (Truck Driver) from 17 June 2013 until his dismissal on 11 March 2016, arising out of an incident that took place at around 12:00 AM on Friday, 19 February 2016.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires that four initial matters be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Harvey’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] For the reasons set out below, I find that Mr Harvey was not unfairly dismissed.


[4] Evidence in this matter was received from the Applicant and, on his behalf, Malcolm Jago, another mining employee of MMG’s and Secretary of the Rosebery Committee of The Australian Workers’ Union. For the Respondent, evidence was received from Justin De Meillon, MMG’s Mining Manager; Arthur Youd, MMG’s Safety and Training Superintendent; Steven Wilson, Mining Superintendent; and Stacey Dibben, MMG’s Human Resources Advisor.

[5] Prior to dismissal Mr Harvey had been employed by MMG since 17 June 2013, working as an underground truck driver. The basic facts of the incident for which Mr Harvey was dismissed relate to an incident in which his truck made contact with and damaged another piece of equipment, an integrated tool basket, referred to within the mine as an IT basket, which is a large, heavy duty and rectangular framed basket for the purposes of carrying large mining tools. The IT baskets are large and heavy, although there is a dispute between the parties as to whether it is a “heavy vehicle” as defined in the MMG traffic management plan, being one with a gross vehicle mass of greater than four and a half tonnes.1

[6] At about midnight on 19 February 2016, Mr Harvey went for a crib break, having completed carting waste between 55K level and 49K level of the MMG Rosebery mine.2 At the time he had been driving an AD55 underground dump truck with a carrying capacity of “not quite” 50 tonnes, being smaller than some others operated by the mine. 3 The truck is identified in evidence as “truck 10”.

[7] The crib room was at level 46K. Mr Harvey drove his truck to the area and stopped it before walking to the crib room. When he stopped at level 46K there was a passenger in the truck. The configuration of the truck is such that the passenger sits immediately behind the driver but is seated facing in a different direction to the driver. 4

[8] When in the crib area near to level 46K, Mr Harvey “pulled into what he thought would be an empty x cut”.5 Mr Harvey’s evidence was that the crosscut is about 15 to 20 metres in length, compared with the length of the truck being about 10 to 12 metres.6 However, in order to pull into the crosscut he had to turn right off the main route, and when he did so he did not see soon enough an IT basket that was at the end of the crosscut. When he noticed the IT basket parked in the parking bay he applied the brakes and “[b]y the time the brakes stopped the truck I had nudged the IT Basket. I then rolled back the Truck about a metre to assess the damage to the basket.”7

[9] There is a dispute between the parties about the speed Mr Harvey had been travelling as he turned and whether he actually applied the truck’s brakes after seeing the IT basket. The collision with the IT basket caused significant damage, with the basket requiring repairs and recertification for underground mining purposes, which together cost more than $15,000.8

[10] Having made contact with the IT basket, Mr Harvey did not initially report the incident or the damage.9 Mr Harvey reported the incident after going to the crib room and it took about 40 minutes for Grant Howard, the person to whom he reported the matter, to arrive.10

[11] Once the matter had been reported and Mr Howard arrived, photographs were taken of the truck and the IT basket and Mr Harvey was required to undertake drug, alcohol and fatigue management tests, with him passing each of them.11 MMG initiated an investigation into the circumstances of the incident, which was conducted by Arthur Youd, MMG’s Safety and Training Superintendent, as the investigation process facilitator, along with Mr Howard and two other managers.

[12] An initial report, prepared over the weekend following the incident, was provided by two of the investigation team to the Mining Manager, Justin De Meillon, which was substantially critical of Mr Harvey. Having received the initial report, Mr De Meillon decided on 26 February 2016 to suspend Mr Harvey from work on full pay until the conclusion of the investigation.

[13] The final investigation report provided by Mr Youd to Mr De Meillon on 29 February 2016 is written in factual terms. The report assessed the actual consequence of the event as “Medium” but the potential consequence level as being “High”, with it being reported that it was “quite possible there could have been personnel getting equipment out of the basket therefor was possible for an injury or even a fatality to occur.”12 The report also made the following findings about Mr Harvey;

[14] Following receipt of the final investigation report, a “show cause” letter was issued by MMG to Mr Harvey that put to him the company’s view that its findings about the incident on 19 February, together with his employment record, led it to the view his employment should be terminated. Through a letter to him from Mr Wilson, the company informed Mr Harvey of its opinion that the circumstances warranted dismissal and sought his written response. The specific matters put to Mr Harvey included this;

[15] Mr Harvey responded expressing his regret for what had occurred and asking to be given a second chance. 15 That response, and other matters, was discussed in a meeting on 11 March 2016. The meeting was with Mr Harvey and his support person, Mr Jago, as well as Mr Wilson, the MMG Mining Superintendent, and Ms Dibben, the company’s Human Resources Advisor. In the course of the meeting Mr Harvey was informed his employment would be terminated and was provided with a termination letter which included the following information;


[16] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;


[17] In determining whether Mr Harvey’s dismissal was harsh, unjust or unreasonable, it is necessary to take into account each of the matters specified in s.387. I will deal with each of the s.387 matters in turn.

(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)

[18] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

[19] In cases of dismissal for misconduct, the Commission is required to determine whether the conduct occurred.18 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.19 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.20

[20] As set out within the termination letter, Mr Harvey was dismissed because allegations made against him about his conduct on 19 February 2016 had been found to be substantiated in the course of an investigation conducted by MMG, with the additional consideration of his work performance history as well as for the reason that it considered Mr Harvey had “demonstrated a level of complacency toward safety that cannot be tolerated in the workplace”. 21

[21] The four allegations made against Mr Harvey are that he;

Operated a truck in a high pedestrian traffic area causing equipment damage

[22] The allegation that Mr Harvey operated a truck in a high pedestrian traffic area relates to the fact that the vehicle was travelling in proximity to the level 46K crib room. Mr Harvey’s response to that allegation is essentially that there was no other way to operate the truck by definition, it being a roadway in proximity to a crib room, and that any truck operating through the area would also be operating the truck in a high pedestrian traffic area. 22

[23] He also puts forward that the IT basket had no flashing lights displayed on it, meaning it was not particularly visible, and;

[24] The evidence supports the allegation, that Mr Harvey operated a truck in a high pedestrian traffic area causing equipment damage, was substantiated and that the allegation has been established. This is because Mr Harvey does not dispute either that he was operating a truck in the area; or that it was a high pedestrian traffic area; or that operation of the vehicle caused equipment damage.

Failed to look into the cross cut before driving his truck inside

[25] Establishment of the allegation that Mr Harvey failed to look into the crosscut before driving his truck inside rests upon findings made within the MMG investigation report to the effect that the incident occurred “when he pulled into what he thought would be an empty x cut” and that he was responsible for a work method error “failing to identify if there was any other equipment parked in this x cut before driving in there”. 24

[26] Mr Harvey puts forward that the IT basket should have had flashing lights on it as well as it being inappropriately located within the crosscut. He also puts forward his understanding that the crosscuts are for truck parking only and that, on the rare occasions other heavy vehicles have been parked in the crosscut, they have displayed flashing lights to warn other vehicles of their presence. 25

[27] By way of context, the level 46K area not only has a crib room but it also has a workshop area, and for those reasons amber flashing lights are displayed throughout the area. According to material provided to the Commission, a crosscut is something akin to a dead-end alley off the main road or decline between the various levels of the mine. The drawing attached to the investigation report and provided to the Commission in evidence indicates that there are at least two such crosscuts in proximity to the crib room. 26 Mr Harvey considered that the depth of the crosscut might be between 15 and 20 metres.27

[28] Ordinarily, trucks parking in a crosscut would be expected to reverse into the crosscut. However on this occasion Mr Harvey did not do so because he was unable to do so. Instead he drove “front in” into the parking bay.

[29] Mr Harvey’s answers given in the “show cause” meeting held on 3 March 2016 include that he was driving at between 3 and 5 kilometres per hour. Without directly disputing that contention on his part, MMG query why, at that speed, if had he seen the IT basket he had been unable to stop. In his evidence, during the course of cross-examination, Mr Harvey conceded that he had not looked into the crosscut before turning, but otherwise maintained that he had been travelling at an appropriate speed but that the vehicle does not stop instantly;

[30] Mr Harvey’s justification for what occurred is essentially that he was travelling at an appropriate speed; did not expect to see another vehicle or object located in the crosscut and could not have been reasonably expected to see something there; and that once he did see the IT basket he stopped as quickly as he could. His witness statement elaborates on the overall circumstances in this way;

[31] Further to his main position that he acted appropriately in his overall response, Mr Harvey elaborates upon the location of the IT basket in the crosscut. Firstly he puts forward that the IT basket should not have been parked in the crosscut and that to do so was contrary to practice and, alternatively, that if the IT basket was to be placed in the crosscut then it should have had flashing lights displayed upon it.

[32] In addition to saying that he has attended a number of toolbox meetings where the company has specifically stated that the crosscuts are for truck parking only, Mr Jago, who gave evidence on behalf of Mr Harvey and assisted him as a support person in the meetings prior to termination, gave evidence that there is a large sign saying “truck parking area only”. While there is evidence that such a sign is up, 30 the evidence about when it went up, and whether that was before or after the incident that led to Mr Harvey’s dismissal, is inconclusive.

[33] Mr Youd’s evidence is that there was nothing wrong with the IT basket being placed where it was, and that it is his understanding that in practice vehicles other than trucks would park in the area. 31

[34] Mr Harvey and Mr Jago both argue that the IT basket should have been mounted with a flashing strobe light. 32 In particular, Mr Harvey sees the absence of flashing lights being displayed on the IT basket as being a significant contributing factor to the incident and the damage that resulted;33 and Mr Jago says, on the basis of his understanding of the MMG mine acquired over the past 34 years, that;

[35] Mr Youd’s evidence is that it would not have been standard practice and procedure for a light to be on the IT basket;

[36] Mr Wilson’s evidence is that;

[37] Ms Dibben’s evidence on the subject verified that of Mr Wilson and Mr Youd, noting that she is employed as a human resources advisor with significantly less underground mining experience than the other witnesses. Her evidence noted that “[t]he entire 46K parking area is speed limited to 10km and the only requirement for flashing lights is for light vehicles parking in the cross cuts”. 37

[38] With Mr Harvey’s concession that he did not look into the crosscut when he drove into it, consideration of this allegation turns to the related justifications that Mr Harvey puts forward as to his conduct otherwise being proper and reasonable.

[39] Mr Youd’s witness statement makes the point that he learned from Mr Wilson on 25 February 2016 that Mr Harvey had a passenger with him in the truck at the time of the incident which took place on 19 February 2016, and that “he had not reported this initially”. 38 Mr Wilson is not so firm in his witness statement about Mr Harvey omitting to say near to the time of the incident that he had a passenger. The MMG investigation report notes that there was a passenger with Mr Harvey in the truck, with the investigation report concluding under a heading “absent and failed defences” that one root cause of the incident was of “distraction/preoccupation although operator has not stated that he was preoccupied, he did have a passenger and was thinking of having lunch break when driving in to area”.39 Mr Harvey denied the possibility of having been distracted in the show cause meeting that took place on 3 March 2016.40 Mr Youd elaborated in the course of his evidence that the possibility of distraction through having had a passenger may have come about if they were engaged in a conversation;

[40] After considering all the evidence, it leads me to the view that it was neither contrary to practice or policy for an IT basket to be placed in the crosscut and that there is insufficient evidence to make a finding that the IT basket should have had a flashing light displayed upon it.

[41] The evidence does not lead to a finding that the incident occurred because of undue speed on the part of Mr Harvey.

[42] However, the evidence does lead to a finding, which I make, of inattention on the part of Mr Harvey to safe driving in the area. He offers no explanation as to why he did not look into the crosscut before he turned into it, and the fact that he did not expect anything to be there does not adequately answer the proposition that he was inattentive. The fact that he had a passenger with him may explain why there was inattention, however in the absence of any specific evidence on the subject I do not make a finding about that matter.

[43] In all, I find there was inattention on the part of Mr Harvey when he failed to look into the crosscut before driving his truck inside. This was an area in which equipment was known to be parked, whether or not it was a truck or some other vehicle. This was an area in which pedestrians were known to be present. The fact that he was driving a heavy truck without instant braking ability and that he was turning into a bay of 15 to 20 metres, when his vehicle was about two thirds of that length, being 10 to 12 metres, only serves to reinforce his level of inattentiveness and its potentially very serious consequences.

[44] Accordingly, the evidence supports the allegation that Mr Harvey failed to look into the crosscut before driving his truck inside was substantiated.

Failed to preserve the scene

[45] The allegation that Mr Harvey failed to preserve the scene comes about because, having made impact with the IT basket, he then reversed the truck a short distance away from the IT basket cage. The company is critical of him for doing so because it meant that the scene of the incident, as it exactly occurred, could not be inspected by the company supervisor for the purposes of taking photographs and assessing the cause of the incident. 42 This is said by MMG to be inconsistent with its relevant procedures which oblige plant operators to preserve incident scenes until they have been assessed by a supervisor and to then report the matter to their supervisor. That contention was dealt with in some detail in Mr De Meillon’s evidence in examination-in-chief, with him giving the following evidence;

[46] Mr Wilson’s evidence on the subject went further, with him giving evidence about the importance of scene preservation and what it actually meant within an underground mine context;

[47] The part of the allegation that is critical of Mr Harvey for having rolled the truck back a little after having impacted the IT basket is likely overstated. While there are obviously good reasons for requiring no change at all to be made to the scene after a hazardous incident, for the purposes of inspection, reversing a vehicle slightly from the point of impact seems to be a normal reaction to what had occurred. The more substantial part of the allegation is that Mr Harvey did not preserve the scene from interference from others, or to ensure that the hazard created by the truck being “half in the stock pile”, as described by Mr Wilson, was identified to other users in the vicinity. The matter of interference of the scene from others is not necessarily a question of intention to disturb the scene, but rather, as Mr De Meillon described it, one which may arise because other employees are simply going about their normal tasks; for example, “[a] service crew may have come and jumped in the IT and tried to use the IT with the damaged work basket on the front”. 45

[48] The detail of the allegation as provided in Mr Wilson’s evidence gives important context to the allegation itself. By doing what he did – that is nothing, and leaving the site – Mr Harvey has not complied with his obligation to preserve the scene of the incident, for the purposes of investigation, as well as to make the scene safe for other users.

[49] For this reason the evidence supports the allegation that Mr Harvey failed to preserve the scene.

Failed to immediately notify his supervisor

[50] The allegation of a failure to immediately notify Mr Harvey’s supervisor comes about because, having impacted the IT basket, Mr Harvey and Mr Cooper, the passenger in the vehicle, went to the crib room rather than initiating a report then and there. Mr Harvey’s evidence on the subject included the following;

[51] Following notification it took Mr Howard, the shift supervisor, about 40 minutes to arrive. Mr Howard did not give evidence in these proceedings.

[52] Mr Youd considers this to be too long before notification was given;

[53] Mr Youd’s witness statement includes reference to the MMG Rosebery Traffic Management Plan, which includes the requirement, under a heading “Emergency/incident response”, that “[d]rivers notify supervisor immediately of all incidents relating to the use of a vehicle.” 48

[54] Mr De Meillon considered the length of time to notify the incident could have caused problems for the mine; “[p]rejudice in terms of risk to the operators I guess moving the equipment or leaving the scene unprotected.” 49 Mr Wilson is similarly critical of Mr Harvey, as set out in the passage of his evidence referred to above; for the reason it potentially reduced the company’s ability to conduct a root-cause investigation of the matter and the fact that the truck was where it was may well have been a safety hazard. Instead of doing what he did, he should have immediately reported the incident to his supervisor by radio;

[55] Mr Harvey’s evidence was that he called Mr Howard when he got to the crib room, with it then taking Mr Howard about 40 minutes to attend the site. 51 He denied in cross-examination that this would be a problem;

[56] Further, in re-examination, he clarified his belief that there was no question of scene disturbance or of there being a safety problem, with the site being unattended because other operators would have heard the initial radio call about there being a safety incident on level 46K;

[57] Mr Harvey’s explanation for his actions is essentially that he discharged his responsibility by telling Mr Howard about the incident over the radio when he reached the crib room.

[58] Mr Harvey’s witness statement puts forward that he has always endeavoured to work to the best of his ability and has endeavoured to be a diligent worker and comply with MMG’s operating policies and procedures. 54 However MMG considers that in the context of his overall employment history that is not borne out. In this regard it points to Mr Harvey having been the recipient of 7 disciplinary events by February 2016, all but two of which are characterised as being a failure to follow MMG’s policies and procedures. MMG concluded that because of this, Mr Harvey was not genuine about his commitment;

[59] The evidence supports a finding that Mr Harvey failed to immediately notify his supervisor of the incident.

[60] I have found that the alleged conduct occurred for each of the four allegations made against him. I consider that the combination of that conduct amounts to a valid reason for Mr Harvey’s dismissal.

(b) whether the person was notified of that reason

[61] I am satisfied that Mr Harvey was notified of the reasons for his dismissal.

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

[62] I am satisfied that Mr Harvey was given an opportunity to respond to MMG’s reasons for consideration of his dismissal and that he availed himself of that opportunity.

(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

[63] There was no unreasonable refusal by MMG to allow Mr Harvey to have a support person present to assist at any discussions relating to dismissal.

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

[64] Mr Harvey’s dismissal relates to his conduct on 19 February 2016, and not to allegations of unsatisfactory performance.

(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

[65] MMG is a significant sized employer, with 255 employees at the time of Mr Harvey’s dismissal. There is no evidence that its size impacted on the procedures it followed in effecting his dismissal.

(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

[66] MMG had access to, and availed itself of, dedicated human resource management specialists or expertise in its investigation into Mr Harvey’s conduct and its decision to dismiss him.

(h) any other matters that the FWC considers relevant

[67] Mr Harvey puts forward two matters potentially relevant to consideration under s.387(h).

[68] The first is that it was unfair of MMG to take into account in its decision his history of disciplinary action, because those matters were unrelated. As referred to earlier, Mr Harvey puts forward he has always endeavoured to work diligently, to the best of his ability and in compliance with MMG’s operating policies and procedures. While unrelated perhaps between the allegations that lead to his dismissal and the subject matter of each episode of counselling, the matters are relevant to MMG’s decision-making for the reason, in aggregation, the matters illustrate his attitude to safety and company procedures. In particular, I consider the following to be relevant to that finding; 56

[69] Two other matters, both from 2014 and relating to vehicle damage, do not appear directly relevant the question of Mr Harvey’s adherence to MMG’s operating policies and procedures. 57

[70] By February 2016, Mr Harvey had been the recipient of 7 disciplinary events, all but two of which are characterised as being a failure to follow MMG’s policies and procedures. Reasonably, a person who had been the subject of this many events calling into question his adherence to policy and procedure would, by February 2016, be hyper-vigilant about following policies. Yet that consideration does not feature either in what Mr Harvey did on the day, or in his explanations at a later time, including in evidence. The conclusion is made then, that if he thought about the requirements of the policy at all, he just thought they were not especially relevant or applicable.

[71] Mr Harvey also puts forward as matters for consideration by the Commission his economic and personal circumstances, which include living in Zeehan, Tasmania, and the likelihood of a poor prognosis of timely employment elsewhere, as well as difficulties in recouping the cost of his home if he is forced to relocate. While I have taken those matters into account, they do not change my findings.

[72] I do not find any other matters that are relevant and which require being taken into account.


[73] Having considered in detail all of the criteria within s.387 of the Act, I find that there are no matters that would cause me to find that, irrespective of there being a valid reason for the dismissal of Mr Harvey, his dismissal was otherwise harsh, unjust or unreasonable.

[74] I therefore do not consider that Mr Harvey has been unfairly dismissed.

[75] As a result of my finding that Mr Harvey has not been unfairly dismissed, his application will now be dismissed and an Order to that effect will be issued at the same time as this Decision.



Mr R Flanagan of the Australian Workers’ Union for the Applicant.

Ms S Masters of Page Seager Lawyers for the Respondent.

Hearing details:



August 17.

1 Transcript PN 410–416.

2 Exhibit R5, Witness Statement of Arthur Youd, [17]; Exhibit A3, Witness Statement of Harvey Malachi, [14].

 3   Transcript PN 648-649.

 4   Exhibit R6, Witness Statement of Steven Wilson, [25].

5 Exhibit R5 Attachment A [2.1].

6 Transcript PN 361–362.

7 Exhibit A3 [16].

8 Exhibit R5 [30]

9 Exhibit R5 Attachment A [2.3.4]; Exhibit A3 [16].

10 Exhibit A3 [17].

11 Ibid.

12 Exhibit R5 Attachment A.

 13   Ibid.

 14   Exhibit R6 Attachment C.

 15   Exhibit R3, Witness Statement of Stacey Dibben, Attachment L.

 16   Ibid Attachment N.

17 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373.

18 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

19 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

20 Streeter v Telstra Corp Ltd (2008) 170 IR 1

 21   Exhibit R3 Attachment N.

 22   Exhibit A3 [27(i)].

 23   Ibid.

 24   Exhibit R5 Attachment A.

 25   Exhibit A3 [27(i)].

 26   Exhibit R5 Attachment A.

 27   Transcript PN 361.

 28   Ibid PN 432–434.

 29   Exhibit A3 [15]–[16].

 30   Exhibit R5 Attachment B(ii).

 31   Transcript PN 785; Exhibit R5 [31(b)].

 32   Ibid PN 94.

 33   Exhibit A3 [27(i)].

 34   Exhibit A1, Witness Statement of Malcolm Jago, [10].

 35   Exhibit R5 [31(b)].

 36   Exhibit R6 [50(b)].

 37   Exhibit R3 [36(c)].

 38   Exhibit R5 [19].

 39  Ibid Attachment A.

 40   Exhibit R3 Attachment J.

 41   Transcript PN 721.

 42   Exhibit R7, Outline of the Respondent’s Submissions, [18(a)].

 43   Transcript PN 189 – 190.

 44   Transcript PN 832 – 836.

 45   Transcript PN 193.

 46   Exhibit A3 [16]-[17].

 47   Exhibit R5 [31(b)].

 48   Exhibit R5 Attachment C, p.15.

 49   Transcript PN 216.

 50   Exhibit R6 [50(c)].

 51   Exhibit A3 [16]-[17].

 52   Transcript PN 443 – 448.

 53   Transcript PN 509 – 511.

 54   Exhibit A3 [3].

 55   Exhibit R7 [21].

 56   Exhibit R3 Attachments C – G.

 57   Ibid Attachments A – B.

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