DECISION

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

Malachi Harvey
v
MMG Australia Ltd
(U2016/5843)

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.

BACKGROUND

[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;

“ A work method error has occurred, operator is a trained /competent & authorised person to operate this truck, failing to identify if there was any other equipment parked in this xcut before driving in there.

• Operator has left the scene of the incident and walked to 46K cribroom failing to notify his supervisor immediately after the incident.” 13

[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;

“… The investigation, in which you have participated, has determined that your actions constituted a number of breaches of several operating procedures including:

• Operating a truck in a high pedestrian traffic area causing equipment damage



• Failure to look into the cross cut before driving your truck inside



• Failure to preserve the scene



• Failure to notify your supervisor immediately

You have a history of unacceptable performance and safety and have received disciplinary action as a result of this. You were issued with a Final Written warning issued on 27th August 2015.

You have demonstrated a level of complacency towards safety that cannot be tolerated in the workplace.

As a result of your actions, MMG is considering terminating your employment as a Level 3 Operator. Prior to making that determination, I wish to provide you with an opportunity to show cause as to why your employment should not be terminated.

I require you to provide me with your written response to this request. Upon receipt of your response, a decision will be made regarding continuation of your employment. In making my decision about your employment, I will take into account your response and all information available to me. …” 14

[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;

“… An incident occurred at the 46k level Truck Park area at 12.00am on Friday 19th February 2016, where the truck that you were operating struck and damaged an IT basket. It was alleged that on this day you:

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



• Failed to look into the cross cut before driving your truck inside



• Failed to preserve the incident scene



• Failed to notify your supervisor immediately of the incident

On Saturday 20^th February 2016 you were stood down on full pay pending investigation. You participated in the investigation process led by Steve Wilson, Mining Superintendent and Stacey Dibben, HR Advisor.

Throughout the investigation process, you were offered a support person, this offer was declined.

The investigation is now complete and the above mentioned allegations have been substantiated.

Your participation in and responses throughout the investigation have all been considered along with your show cause response received on 8^th March 2016.

Your actions on 19^th February resulted in a number of breaches/standard operating procedures etc. Specifically you have breached the following:

MMG Code of Conduct:

- All of our People are responsible for maintaining a safe and healthy workplace and complying with MMG's policies and standards relevant to safety security and health
- Always think about your safety and the safety of your colleagues when making decisions.

MMG's Values - We think Safety First

You have a history of unacceptable performance and safety and have received disciplinary action as a result of this. You have demonstrated a level of complacency towards safety that cannot be tolerated in the workplace.

As a consequence of your actions, your performance and the breaches above, MMG has decided to terminate your employment at Rosebery effective today, 11 March 2016. Your contractual notice period of 2 weeks will be paid to you in lieu and your last day of employment will be today. …” 16

LEGISLATION

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

387 Criteria for considering harshness etc.

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

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

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

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

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

(e) if the dismissal 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.

CONSIDERATION

[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;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”17

[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



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



• Failed to preserve the scene



• Failed to immediately notify his supervisor.

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;

“As I understand it the purpose of the cross cut is to provide parking space for trucks for their operators to have their crib. Other heavy vehicle operators are usually picked up by light vehicles and transported to the crib room. I have attended a number of toolbox meetings were the company has specifically stated that the cross cuts are for truck parking only.

On occasions I have observed other heavy vehicles parked in the cross cuts, however on those rare occasions the heavy vehicle has flashing lights displayed to warn other vehicles of its presence.” 23

[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;

“… you explain in your evidence why you were required to park in the right-hand side crosscut and you say that you noticed the IT and basket parked in the parking bay and you applied the brakes but by the time the brakes stopped the truck had nudged the IT basket. Now, your evidence is that you were only travelling at 3 to 5 kilometres per hour, approximately?---That's correct.

I put it to you, travelling at that speed, if you'd seen the IT and the basket, you would have stopped before you hit it, the brakes would have stopped the truck quickly enough?---The trucks are a heavy piece of equipment and by the time you apply the brakes it doesn't just stop instantly. They do have a - I'm not sure of the word you'd use, their stopping distance sort of thing before they would actually come to a complete stop.

Mr Harvey, you didn't look before you turned into the crosscut, did you?---No, I never” 28

[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;

“15. On 46 K level, where a truck is entering that level from Wl decline there is an incline below the crib room which allows vehicles to enter a loop which in turn allows vehicle to enter the area without being required to reverse. Once a vehicle enters that area there are then two heavy vehicle parking bays, with one being on each side of the incline. My understanding is that the parking Bays where for the exclusive use of trucks and Heavy vehicles.

Under MMG operating procedures operators are required to reverse their heavy vehicles into the parking Bays. The road then continues straight ahead which takes you to the crib room (about 20 metres). About 3 metres past the parking Bay on the right hand side there is a turn to the right where the road takes you back to the W decline. The 46K level the area around the crib room is a high interaction area. As a consequence, the area has high visibility strobes to warn everyone that it is a 10Km an hour speed limited. On the road that takes you to the crib room there is an entrance from the K side of the decline for light vehicles to use in order to avoid light vehicles being in the heavy vehicle area.

16 On entering the 46K Level on 19th February I observed a truck parked on the loop line that takes you back to the W Decline just on the other side of the right hand parking bay. I also observed there was a truck parked in the parking Bay on the left hand side. As the pathway that I needed was blocked by the parked truck, I was unable to reverse into the right hand side parking Bay. I therefore proceed to drive front in to the parking Bay on the right hand side. I noticed the IT and Basket parked in the Parking Bay. I applied the brakes. By 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. … ” 29

[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;

“It is my understanding that the Traffic management plan requires that where a vehicle is parked, as the IT basket was, strobe lights should have been on because a truck can turn from left to right in the area and without a strobe light would not be visible to the operator of the Truck. With the IT basket parked in the cross cut as it was this creates a hazard as the driver would not be able to see the basket because it is only 1.5 meters high and the Truck is turning from left to right” 34

[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;

“The incident occurred in an amber light area. The Traffic Management Plan provides that an amber light area indicates that operators need to be alert that pedestrians may be in the area and travel at a maximum speed limit of 10 kilometres per hour is in place. As the Incident occurred in an amber light area, further lights on the IT basket would not be required.” 35

[36] Mr Wilson’s evidence is that;

“It is not standard practice for an IT basket to have a flashing light on it in 46K as the whole area is a 'flashing light area'. This means that there is a speed reduction and drivers are to remain alert for any hazards as it is a high traffic area.” 36

[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;

“Basically that there was a possibility they could have been talking to each other on the way up - with his passenger - and still talking when they were going into the crosscut.” 41

[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;

“MS MASTERS: Mr De Meillon, there's a number of allegations that were made against Mr Harvey in this matter, one of them is that he's failed to preserve the scene of the incident where he's contacted the IT basket. Can you explain to the Commission, from your perspective, what's the importance of preserving a scene when there's been an incident?---The importance of preserving the scene is, one, there's a legal requirement for us to do it, for significant incidents. So when we have incidents that we need to report through to the Mines Department it's the requirement that they will release the scene. So this wasn't a significant incident but what we want our operators to do is to preserve the scene so we can go in and do an investigation and find all the facts. Then generally the shift boss will release the scene so that we can make sure we've done the investigation thoroughly and properly.

What's expected of an employee when there's been an incident, in terms of preserving the scene?---The expectation for the employees, and it's fairly well understood, that if there's an incident things are left in place as they are. We look to make sure there's no risk to other people, we make the area safe so that no one else will get injured or any further damage will come out of the incident and then we notify our supervisor immediately.” 43

[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;

“Now, one of the allegations against Mr Harvey was that he failed to preserve the scene of the incident. What do you understand to be the important of preserving the scene when there is an incident in the mine?---First and foremost, it's s statutory requirement. A lot of my experiences been in WA, but the brief experience I have had in Tasmania, there is definitely a focus on preserving the scene so that further investigations can be conducted and so that the root cause of any incident can be found.

Do you consider, in this case, that Mr Harvey preserve the scene?---No, I don't.

What would you expect Mr Harvey to have done to comply with the requirement to preserve the scene?---He left the scene in a manner that anyone else in the mine could have come in and moved any of the pieces of equipment, or been involved in a further incident in the area. I would have expected, if he did have to leave the area, that he would barricade it off or call on the radio and get someone else to the area to ensure that no-one else could come in and cause any disturbance to the scene.

So what is the concern, if there is some disturbance to the scene, before it is reviewed by a supervisor? What's the concern from MMG?---First and foremost, it's - we want to be able to determine the root cause of any incident and actually have the scene preserved, so that we can have photos, if required survey pickups of location of any equipment or any infrastructure in the area, and the other one, from the safety side of things is as he left the scene, there was ability for anyone else to drive into that area and make the situation worse.

So what do you mean by that? Someone could have driven in and made the situation worse?---Where he left the truck, it was half in the stock pile. Anyone else coming around the corner, which - you know, off the main decline into that truck loop - yes, he left the truck in the way of it. So the situation he's described with the IT, he's done exactly that with the truck.” 44

[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;

“16. … I noticed the IT and Basket parked in the Parking Bay. I applied the brakes. By 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. After assessing the damage, I proceed to the crib room to report the incident to the shift supervisor Grant Howard. I was aware from radio traffic earlier in the shift that Grant Howard was in W level which was about half an hour from 46K level. Rather than using the radio in the truck to report the incident I decided that as the crib room was close by I could report the incident to the shift supervisor from the radio in the crib room and could have my crib while I was waiting for the shift supervisor to arrive.

17. After about 40 minutes Grant Howard arrived. Grant and I then proceeded to the incident site where we took photos of the Truck and IT basket. Grant than Directed another truck driver in the area to transport my truck from where it was parked on 46 K level to 47 Level. Grant and I then proceeded outside to do a drug test, alcohol test and fatigue management test. I passed all of the tests. After all the tests Grant proceeded to return me back to my truck. I then started hauling ore to the surface. …” 46

[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;

“I do not agree that Mr Harvey reported the incident promptly. The standard procedure is to report the incident immediately using the radio in the truck. This procedure is made aware to all employees in the induction process. I believe that Mr Harvey did not report the incident immediately and stay at the scene as he did not believe it was significant enough.” 47

[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;

“After the Incident, Mr Harvey walked to the crib room (which is approximately 300 metres from where Mr Harvey had the Incident) and then got his lunch out and started heating it up before then using the radio in the crib room to report the Incident. This demonstrates that Mr Harvey did not consider the Incident to be a serious one at all and is consistent with the complacent attitude that Mr Harvey has towards safety and which was demonstrated through his prior performance/disciplinary history as well as his attitude to responding to the Incident.” 50

[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;

“So leaving the scene of an incident unattended, in your evidence, for over 40 minutes you say is consistent with preserving the scene of an incident?---The way that my truck was parked no other vehicles would have been to access that location anyway.

So preserving the scene of an incident requires more than leaving vehicles in place or other vehicles accessing the area, doesn't it?---I'd imagine.

So preserving the scene of an incident is not simply preventing other vehicles accessing the area, is it?---Correct.

Other people could have attended the incident and they could have, for example, moved the truck, they could have moved the IT basket, couldn't they?---I doubt anyone would have, considering that I called Grant up and explained what had happened, over the radio.

You didn't take any other steps to preserve the scene of the incident, did you?---No, I never. Your evidence is that it was approximately 40 minutes before Grant, your supervisor, arrived?---It was 30 to 40 minutes, yes.

You were in the crib room for that period?---I was.” 52

[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;

“Now, you've said that you don't believe anyone would have accessed the area where you had the incident with the IT basket because you'd called Grant over the radio. Can you just elaborate on that and explain what you're talking about?---When I called him up I explained that I'd had an incident and required him at the truck parking area at the crib room.

So because you'd radioed him, that means all other employees would be aware of it, does it?---The truck operators would have been.

What if you weren't a truck operator?---The LVs usually use the other side entrance to the crib room for the K or drive up around past the workshop, which is in the bottom part of the loop line.” 53

[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;

“There is no reasonable explanation for the Applicant’s failure to comply with the Respondent’s procedures – he simply did not consider it necessary to do so which is indicative of the Applicant’s complacent attitude towards safety and compliance with the Respondent’s policies and procedures in the workplace.” 55

[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

• In April 2015, a warning was issued about damage to property, with Mr Harvey being warned that he is required to be vigilant and take care when operating equipment;



• In May 2015, he was warned about not wearing safety glasses and informed he was required to comply with MMG standards, policies and procedures and follow reasonable management direction;



• In June 2015, he was warned after an unapproved absence that he must comply with MMG standards, policies and procedures and follow reasonable management direction;



• In August 2015, he was again warned about unapproved absences and again informed that he must comply with MMG standards, policies and procedures and follow reasonable management direction;



• In September 2015, he is alleged to have been counselled about his failure to use an MMG real-time data-recording system tool (“Pitram”) and adherence to the company’s requirements about parking of his truck at the end of a shift. While that counselling is denied by Mr Harvey, I consider on the balance of probabilities that it took place.

[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.

CONCLUSION

[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.

COMMISSIONER

Appearances:

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

Ms S Masters of Page Seager Lawyers for the Respondent.

Hearing details:

2016.

Hobart:

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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