[2017] FWC 2627
FAIR WORK COMMISSION

DECISION


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

Mr Andrew Tomlinson
v
BHP Coal Pty Ltd T/A BHP Billiton
(U2016/14951)

COMMISSIONER SIMPSON

BRISBANE, 12 MAY 2017

Application for an unfair dismissal remedy – valid reason for dismissal – applicant not given opportunity to respond - dismissal was harsh, unjust and unreasonable – applicant awarded reinstatement

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Andrew Tomlinson who alleges that the termination of his employment with BHP Coal Pty Ltd T/A BHP Billiton (BHP) was unfair.

[2] Mr Tomlinson submitted that he commenced employment at BHP in April 2009 in the role of “Administrator Warehouse” until his dismissal on 30 November 2016. Mr Tomlinson was employed on a full time basis, and worked at BHP’s Peak Downs Mine in Moranbah (the Mine).

[3] On 12 November 2016 (the 12 November Incident) Mr Tomlinson was involved in a safety incident whereby a Mr Friske, a truck driver making a delivery to the mine, sustained injuries to his left hand. This incident lead BHP to terminate Mr Tomlinson’s employment.

[4] It was not in dispute that the Fair Work Commission (FWC) had jurisdiction to hear and determine the application on its merits. The matter was heard in Brisbane on 27 March 2017. Mr Tomlinson was represented by Mr A Rich of Slater and Gordon Lawyers, and BHP was represented by Ms A Freeman of Counsel, instructed by Ashurst. Mr Tomlinson and Mr Adam Guy were witnesses in Mr Tomlinson’s case. Mr Guy was not required for cross examination. BHP called two witnesses: Ms Shannon Wells the Warehouse Superintendent at the Peak Downs and Saraj Mines; and Mr Damian Cavill, the Warehouse Manager – East Coast for the Minerals Australia Business.

[5] On 30 November 2016, Mr Tomlinson was provided with a letter that contained reasons for his dismissal:

Termination with payment in lieu of notice

[6] Mr Tomlinson submitted he was not aware prior to the meeting on 30 November that BHP would take into account as being relevant, the incident that had led to him being issued with a written warning (the 15 October Incident), nor was he given an opportunity prior to his dismissal to address BHP in relation to the 15 October Incident, or BHP’s conclusion that he had not shown accountability for the 12 November Incident.

[7] Prior to working for BHP Mr Tomlinson spent 25 years working in logistics and warehousing. Between 1991 and November 2002 he was a Private in the Australian Army, attached to the Royal Australian Corps of Transport. Between 2002 and 2005 he worked as an owner/driver with his own transport business. Between May 2005 and November 2008 he worked as the Queensland Warehouse Manager for Polyflor Australia Pty Ltd. In December 2008 he was employed by Team Supply Logistics, a labour hire company to work for BHP Billiton/Mitsubishi Alliance’s Saraji Mine as a Warehouse Officer, before being employed at Peak Downs. 1

[8] Mr Tomlinson gave evidence that leading up to his termination he worked in a crew consisting of himself and three contractors engaged to perform the same role as him. He said his crew reported to the warehouse supervisor when working day shift, and to the workshop supervisor when working night shift. He said although the other workers in his crew were employed in the same role as him, he was the most senior and experienced worker on his crew. He said as a result the other workers on his crew would come to him with any issues that arose during a shift and he would provide them with instruction, assist them to deal with the issue and/or make any reports necessary to the supervisor. 2

Previous Performance Record

[9] Mr Tomlinson gave evidence that he valued safety highly and was always looking to improve safety around the warehouse and regularly reported potential safety breaches or safety issues that he became aware of.

[10] Mr Tomlinson gave examples of his reporting safety issues at his own initiative including:

[11] Mr Tomlinson also referred to his 2015 Performance Review in which his manager David Meyer commented under the heading “Note Manager Comments”:

[12] Mr Tomlinson said that unfortunately he did not always receive support from his supervisors in dealing with the issues that he raised. Mr Tomlinson provided an example of an issue that he raised at the morning pre-start meeting of 1 August 2016 with Melissa Pomare, Supervisor Warehouse, and Ms Wells about the security gate at the entrance of the warehouse yard. He said it was not working and was being left open. He said the result was that warehouse staff could not control access to the warehouse. He said because the warehouse yard is an operational circuit, positive communication is required in order to enter the area safely. He said without positive communication required to get through the security gate of the warehouse yard, drivers were able to enter the yard without having engaged in positive communication, compromising security in the yard. 7

[13] Mr Tomlinson said that on the same day there was an incident where a pallet dropped through racking in the warehouse. He said the following day, on 2 August, Ms Pomare and Ms Wells asked for a ‘safety share’ at the pre-start meeting. Mr Tomlinson said that he raised the issue of the racking and a discussion followed about the pallet dropping through the racking. Mr Tomlinson said that Ms Wells said to him: “accidents don’t happen”, and moved on to the next matter. It was put to Mr Tomlinson that Ms Wells did not make the statement: “accidents don’t happen” and he said he actually wrote that in his diary. 8 He accepted that Ms Wells did say that if a pallet were not placed correctly, such that it’s locked into a location, it wouldn’t matter if the racking was wide or narrow, it hadn’t been placed correctly by the operator.9

[14] Mr Tomlinson claimed that after responses he had received on safety issues he had raised with Ms Pomare and Ms Wells he felt he would not be listened to if he raised them again. He said as a result he decided to report the issues directly to Andrew Large, the Site Safety and Health Representative (SSHR). He sent Mr Large an email on 3 August 2016 outlining the issues he had reported on 1 August and 2 August. Mr Tomlinson said as a result the Site Senior Executive and Mine Manager, Sean Milful, was drawn into the issues.

Previous Written Warning – Incident of 15 October

[15] Mr Tomlinson said that on 15 October 2016 he was working in the warehouse yard. He said a contractor failed to make positive contact prior to entering the yard, which is a restricted work area. Mr Tomlinson said that the first he became aware of it was when the contractor drove his ute into the yard when another vehicle was already there loading parts. He said he sent the other vehicle that was already in the warehouse yard away so as to avoid two vehicles being in the yard at the same time. Mr Tomlinson said when maneuvering in the yard past the other vehicle the contractor backed into a pallet but no damage was done. Mr Tomlinson said he told the contractor to leave and make positive communication with him before re-entering. 10

[16] Mr Tomlinson said when the contractor re-entered the yard he spoke with him about the process for entering the yard and the fact that he had failed to follow the warehouse procedures. Mr Tomlinson said that as there had been no damage he proceeded to do a “Take Time Talk” with him about his obligations to make positive contact with the warehouse before entering the restricted warehouse area and report his “Take Time Talk” in the system. Mr Tomlinson attached to his statement a copy of the record of the “Take Time Talk” that he had with the contractor on 15 October 2016 11 that he entered into BHP’s system.

[17] Mr Tomlinson said that the following day he received a call from Mr Meyer, who had read the “Take Time Talk” report that Mr Tomlinson had entered into the system. Mr Tomlinson said as a result of the call he sent an email to Mr Meyer and Ms Wells about the 15 October incident.

[18] Mr Tomlinson said the next day he was called into a meeting with Ms Wells about the 15 October incident. Mr Tomlinson said Ms Wells told him that he had failed to report a potential positive contact breach and that he was being issued a written warning. Mr Tomlinson said he disputed that he had failed to report the potential breach, as he had emailed her and Mr Meyer about it the previous day. Mr Tomlinson said he was told he should have reported it on the same day. Mr Tomlinson said Ms Wells did not point to any procedure or document that imposed this obligation. 12

[19] Mr Tomlinson said that he understood that when entering the details of his Take Talk Time with the contractor that by indicating on the form entered into the system that there were behaviours/conditions at risk, that the report would be reviewed by his supervisors and investigated or followed up if they thought appropriate. Mr Tomlinson said he was not aware of any separate obligation to report an incident of the kind that took place to his supervisors. Mr Tomlinson also said that he did not agree that the Code of Conduct required him to report the 15 October incident in a particular way, and believed that his reporting to his supervisors through the online Take Talk Time form complied with his obligations under the Code of Conduct. 13

[20] Mr Tomlinson disputed that the breach in this instance was a breach of a ‘lifesaving rule’. 14 He also disputed that anyone was operating a forklift at the time.15 Mr Tomlinson said procedure required the person to make positive communication and to wait for a response. Mr Tomlinson said the procedure requires a reservation number, and that number has to be acquitted and then the items are picked and the person is allowed to come into the warehouse so the vehicle can be loaded.16

[21] Mr Tomlinson said he had been raising the issue about the broken gate for quite some time and a procedure was needed to be sent site wide so everyone understood that only one vehicle was allowed in the yard at a time. He said no one was taking it seriously, and:

[22] Mr Tomlinson said that he accepted that it was said on a number of occasions during “safety share” that everyone had an obligation to immediately report safety matters to their supervisor. He said when he entered the “Take Time Talk” into the system, he understood that by indicating “yes” to the question “Where any behaviours/conditions observed at risk?” his report would come to the attention of his supervisor. He said he did not understand that the online system for entering a “Take Time Talk” report was only a database. 18

[23] Mr Tomlinson was taken to the Code of Conduct 19 He was referred to page 11 of the Code in the section pertaining to Health and Safety and the following words:

[24] Mr Tomlinson accepted he entered information concerning the matter into the Field Leadership Database (the Database). 20 Mr Tomlinson agreed that the Database that the company has is to record safety conversations and observations.21

[25] Mr Tomlinson said he hadn’t been trained in this. 22 It was put to Mr Tomlinson that the process was that he was to actually go and report it to the supervisor. Mr Tomlinson appeared to respond that would be correct if it was an incident, and he believed this was not classed as an incident.23 He did not accept that he told Ms Wells during an interview with her on 18 October that he was aware that the procedure required him to report it.24 He accepted that he did not dispute the warning given at the time.25

[26] Mr Cavill said that he understood that Mr Tomlinson had received a written warning in relation to his failure to report a breach of a Life Saving Rule to his supervisor that occurred on 15 October 2016. He said he was not involved in the process, save that Ms Wells informed him of the outcome. 26

[27] Ms Wells said that a Field Leadership Database is maintained at the Mine, the purpose of which is to record safety conversations and observations for the purpose of sharing learnings with each other.

[28] Ms Wells said that at the start of every shift, we ask for a “safety share”. Ms Wells said that it is emphasised that during those discussions everyone had an obligation to report safety matters immediately and directly to their supervisor. Ms Wells said accordingly all employees know that it is not sufficient to make an entry in the Database, as it may not be reviewed that day or at all. 27 Ms Wells made the point that it would be impractical to require supervisors to be waiting at a computer to monitor entries in the Database in real time and it would make it exceptionally difficult to discharge their duties in the warehouse. Ms Wells said for this reason, supervisors are only required to perform random quality checks of the Database.28

[29] Ms Wells agreed she was not at a meeting on 28 September 2016, referred to in her statement 29 where she said records indicate reporting of safety matters immediately and directly to supervisors was reiterated.30

[30] Ms Wells accepted that the four field leadership activities or observations are required to be entered each month, or in the order of 80 a month. Ms Wells accepted there are two supervisors meaning one or two would have to be reviewed per day. 31 Ms Wells appeared to accept that Mr Tomlinson was not told that it was not appropriate to report an incident like the incident of 15 October through the online reporting system.32

[31] In re-examination Ms Wells sought to clarify earlier oral evidence to make clear she also relied on the part of the Code that obliges employees to report to your supervisor or manager any incident. 33

[32] BHP never sought to address in any detail Mr Tomlinson’s protest that the gate was broken, that he had been complaining it was broken and this was the reason the second vehicle could be in the yard without making positive contact. It is also clear Mr Tomlinson did make a report of the issue, however it was the manner of how Mr Tomlinson reported the incident that led to the warning.

[33] It does not appear from the evidence that it was ever made explicit to employees that entries made in the Database regarding safety would not be regarded as reporting of an incident. BHP’s case appears to be that employees should have just understood that was the case because they had been told they had to report the issue immediately.

[34] It appears also to be the case that employees were not explicitly told that a report of an incident through the Database may never be read by anyone.

[35] Ms Wells said in her evidence that Mr Tomlinson knew that completing the report in the Database was not the correct procedure for reporting the issue. 34 Her evidence is that she informed Mr Cavill that in her view, Mr Tomlinson had not complied with the requirement, and that she informed Mr Cavill that in her view Mr Tomlinson’s conduct was unacceptable and contrary to the Code of Conduct and Charter Values.35

[36] I am not satisfied Ms Wells was correct in her view that Mr Tomlinson knew that what he did was not the correct procedure. It seems unusual that employees are encouraged to make entries into a Database concerned with safety but that those entries may not be read.

[37] I accept Mr Tomlinson’s evidence that he believed at the time that reporting the “Take Time Talk” as he did was consistent with his obligation to report the issue to his supervisor because he had an expectation his entry made into the database would be read by his supervisor.

[38] Mr Tomlinson said that immediately upon discovering that a further report was required he reported the issue in detail to his supervisor and cooperated fully over the issue. It is likely that if anyone from BHP had advised Mr Tomlinson that entries in the Database may not be read that he would not have made the entry and spoken directly to his supervisor instead as he said he would have. 36

[39] Ms Wells said that she commended Mr Tomlinson for having had a safety discussion with the individual concerned, and emphasised to him that he should have known that he was obliged to report the matter straight away to the relevant supervisor. 37 The evidence in her statement at this point appears to infer the possibility that at the time Mr Tomlinson did not know this was the procedure, even though her evidence in this matter has been that she believed he did know. Certainly Mr Tomlinson’s evidence is that in the course of his meeting with Ms Wells on 18 October she was insistent that he did know the procedure. Mr Tomlinson conceded in the course of the meeting that he did know he should have reported the matter immediately but he said he did this because he was tired and just wanted to go home.38

[40] Ms Wells said that as Mr Tomlinson had accepted accountability and responsibility for his actions she formed the view that his response mitigated the severity of the appropriate disciplinary action, however had he failed to acknowledge that he had not followed the correct procedure he may have been given a first and final warning given the seriousness of the matter. 39

[41] I have considered all the circumstances of the matter including BHP’s conclusions about Mr Tomlinson not reporting the incident immediately to his supervisor and instead making a report about the incident on the Database, Mr Tomlinson’s proactive history of addressing safety issues, Mr Tomlinson’s earlier complaints that the gate was broken not being addressed by BHP, Mr Tomlinson taking pro-active steps to address the potential hazard on the day by directing the driver out of yard and Mr Tomlinson’s pro-active steps to educate the driver on the day. I have accepted Mr Tomlinson’s evidence that while he conceded that he said at the meeting with Ms Wells on 18 October he knew he had to report the issue in the manner she explained, in fact he believed at the time he made the report on the Database that he had reported the matter.

[42] In all of the circumstances a warning that included the prospect of further disciplinary action including possible termination on the basis of his “misconduct” 40 was excessive. BHP’s warning lacked proportionality. On that basis I have concluded the warning does not warrant significant weight being attached to it in support of BHP’s subsequent decision to afford weight to it in later deciding to terminate Mr Tomlinson.

Incident of 12 November 2016

[43] Mr Tomlinson was the only witness in the matter who could give direct evidence about the incident that occurred on 12 November 2016.

[44] Mr Tomlinson in his witness statement gave evidence concerning different considerations when loading a vehicle as compared to unloading a vehicle, and this included the need for larger items to be centred on the truck to avoid them becoming a hazard when driving, and the requirement for items to be placed on rubber mats to avoid them sliding, particularly for metal items. Mr Tomlinson said for items to be accurately placed on mats it sometimes requires a “spotter” to assist, who is almost always the driver who can perform this by standing at the rear of a flat bed truck, but must get onto the deck of an enclosed truck. 41 Mr Tomlinson said it can be difficult to manage this issue safely, particularly because drivers take responsibility for their vehicles, and know their vehicles better than the forklift operator loading the truck, and often seek to assist. Mr Tomlinson said these issues were not dealt with in the Unloading and Loading Standard Work Instructions (U&L SWI).42

[45] Mr Tomlinson said the driver involved in the incident, Wayne Friske, was a regular driver who Mr Tomlinson knew, who delivered items to Peak Downs each day. After a BMA Safe had been completed and barricading placed around the truck Mr Tomlinson completed a Freight Hazard Analysis Form (FHA Form). 43

[46] BHP submitted that in preparing the unloading area, Mr Friske moved the curtain along the back half of his truck far enough to access the items for delivery but had not opened the curtain all the way to the front of the truck. After Mr Tomlinson had finished unloading the truck, he commenced loading the cage onto the back of the truck but the cage made contact with the end of the curtain which had fallen.

[47] BHP submitted that Mr Friske said words to the effect of: “it's hitting the curtain, back off and I'll pull it out of the way.” Mr Friske attempted to move the curtain. Whilst he was doing this, Mr Tomlinson moved the forklift forward. BHP submitted that as a consequence, Mr Friske's hand was caught between the curtain rod and the roof support bar on the truck and he subsequently sustained a laceration to one finger and a dislocation to another.

[48] Mr Tomlinson said in his evidence Mr Friske opened the curtain along the back half of his truck, so as to clear the side-curtain away from the section of the truck where the items for delivery to Peak Downs were located, the side-curtain was removed to the main support upright in the middle of the truck. The side curtain was pulled back from the section of the truck to be unloaded and Mr Tomlinson said that it was not obstructing the unloading area when he commenced to unload those items. Mr Tomlinson said after untying the items to be unloaded he marked on the unloading form that it was safe to unload. Mr Tomlinson said Mr Friske moved to the end of the truck, into the exclusion zone and Mr Tomlinson then set about unloading. 44

[49] Mr Tomlinson said that after he finished unloading he found an empty cage in the warehouse to replace the cage full of items that he had unloaded from the truck. 45

[50] Mr Tomlinson said he had a discussion with Mr Friske about where he wanted the cage put. He said Mr Friske got up on the back of the truck and put rubber matting down for the cage to be placed onto. Mr Tomlinson said he then jumped back down again and stood to the side of the truck outside the exclusion zone. 46

[51] Mr Tomlinson explained the truck was a curtain-side truck, meaning that the truck was an enclosed truck with a roof over the tray of the truck, held up by steel supports along each side of the truck, and a solid panel at the rear, but with curtains along each side of the truck able to be pulled open. The end of the curtain had a metal rod inserted into it to hold the curtain rigid from the roof to the floor of the truck when the curtain was secured closed. As noted the curtain had not been opened all the way to the front of the truck. 47

[52] Mr Tomlinson said that he got back in the forklift to lift the cage back into the truck. He said the loading area of the truck appeared to be clear for loading. He said when he was lifting the cage into the back of the truck it made contact with the end of the curtain which had fallen to hang by the curtain rod at an angle across the area that he was trying to load the cage into. 48

[53] Mr Tomlinson said that from his vantage point when driving the forklift he could see the top of the front of the cage that he was lifting and he could see the bottom half of the curtain rod. He said he could not easily see the top of the curtain rod where the cage had connected with it. 49

[54] Mr Tomlinson said that Mr Friske called out: “It’s hitting the curtain, back off and I’ll pull it out of the way.” 50

[55] Mr Tomlinson said that because long haul truck drivers like Mr Friske are in their truck all the time, they usually know their trucks and their loading and unloading capacity very well, and are more familiar with the truck than himself. Mr Tomlinson said that he wrongly trusted that Mr Friske had correctly considered that the curtain could be safety restrained and that he could and would be able to do so while Mr Tomlinson reloaded the cage. Mr Tomlinson accepted that he exercised poor judgement in allowing Mr Friske to do as he suggested. 51

[56] Mr Tomlinson said that after stopping to allow Mr Friske up onto the deck of the truck, Mr Tomlinson went to reload the cage with the forklift again, moving slowly and carefully. Mr Tomlinson said the cage again hit the curtain rod at the end of the curtain, though higher up the curtain rod on this occasion. 52 Mr Tomlinson accepted that it was incumbent on him as the operator of the forklift to make sure that persons are clear of the forklift before he starts operating it.53 Mr Tomlinson claimed during re-examination that Mr Friske was standing to the side of where he was loading, so he wasn’t directly in front of the cage or the forklift.54

[57] Mr Tomlinson identified by marking an “x” on a second copy of a photograph of the back of the truck, where it was he said Mr Friske was standing in proximity to a pole and the curtain. It was Mr Tomlinson’s evidence that the curtain was not at an angle as depicted in the photograph, and was more upright the second time (the cage was attempted to be loaded) because Mr Friske was holding it and he was standing on the side of the pole. 55

[58] Mr Tomlinson said he saw Mr Friske move the curtain out of the way. 56

[59] Mr Tomlinson said that Mr Friske said to “back up”. Mr Tomlinson said he backed up, put the cage on the ground and went over to Mr Friske. Mr Tomlinson said that because of the location in which Mr Friske had put his hand when holding the curtain, his hand was caught between the curtain rod and the steel upright on the truck. 57

[60] Mr Tomlinson said he took Mr Friske to the paramedics at the ambulance station, and then went and advised his supervisor what had happened. He said he then returned to the ambulance station to see that Mr Friske was alright, and then rang Mr Meyer to advise him. 58 Mr Tomlinson said he visited Mr Friske after work that day at the Moranbah Hospital and apologised to him. Mr Tomlinson said that Mr Friske said it was not Mr Tomlinson’s fault and that he had no broken bones or dislocations.59

ICAM Investigation

[61] Mr Cavill said he travelled from the Perth office during the week commencing 14 November 2016 to be part of the “ICAM” investigation, which stands for Incident Cause Analysis Method (ICAM). He said the ICAM was facilitated by Shane Dobie, Warehouse Superintendent for South Walker Creek and Hay Point Services. Mr Cavill said the other members of the investigation team were Ms Wells, Sian Rose (Health and Safety Advisor for the Mine), Alasdair Riley (Warehouse Operator at the Mine) and Karen Thompson from Redline Freight. 60

[62] Ms Wells said that she co-ordinated the investigation into the incident. Ms Wells said the investigation team met for a number of hours to discuss and identify the root cause of the incident. The documents reviewed as part of the investigation were listed by Ms Wells. 61 Ms Wells set out what she said the investigation team concluded were the causes of the incident62 and conclusions that the root cause or contributing factors in terms of individual factors for the incident included that Mr Tomlinson should have communicated to Mr Friske to get down from the deck of the truck and to move out of the “red zone” before commencing to operate the forklift, and intended human error, namely Mr Tomlinson had shown he understood the risks and appropriate controls as he signed the U&L SWI, completed the 12 November BMA Safe, and completed the FHA Form but still proceeded to load the empty cage onto the deck while Mr Friske was in the “red zone” in the line of fire.63

Show Cause meeting and letter of 21 November

[63] Mr Tomlinson accepted that Ms Wells gave him a show cause letter 64 at the meeting of 21 November 2016, and that Ms Wells read the letter out at the meeting. Mr Tomlinson accepted that Mr Guy attended the meeting by telephone as his support person. Mr Tomlinson accepted that the letter contained a section including advice that the potential outcome of the process included the possibility of termination.65

[64] Mr Tomlinson accepted that the second page of the letter specifically referred to his currently being on a written warning, and that would be a factor in deciding the outcome. 66

[65] Mr Tomlinson submitted that his support person requested but was not provided with the information that BHP had relied upon in determining the allegations proven.

[66] Mr Tomlinson submitted that the first time he was advised of the allegations against him was in the show cause letter, in which Ms Wells advised that she had determined that his conduct constituted a breach of the SWI, the Code of Conduct and Our Charter Values.

[67] Mr Tomlinson agreed he did not ask for a copy of the Code of Conduct or Our Charter Values documents at the show cause meeting, or clarification as to what was meant by the allegations. 67

[68] Mr Guy said that on 21 November 2016, he attended a show cause meeting by teleconference. He said at the meeting were Mr Tomlinson, Ms Shannon Wells and Ms Lauren Westbrook as a note taker. 68

[69] Mr Guy described the meeting as being ‘incredibly brief’ and that during the meeting Ms Wells read out a stand down letter, a copy of which she gave to Mr Tomlinson at the conclusion of the meeting. Mr Guy said that toward the end of the meeting Mr Tomlinson asked for a copy of the investigation documents referred to in the stand down letter and that Ms Wells informed Mr Tomlinson that BHP would not provide Mr Tomlinson with that information. 69

[70] Although Mr Tomlinson provided an incident report immediately following the incident, Mr Tomlinson was never interviewed in BHP’s investigation undertaken prior to BHP making the findings or finding the allegations proven against him and the allegations were never put to him for him to respond to.

[71] Mr Tomlinson was never advised in the show cause letter or in the meeting of 23 November how it was alleged that he breached the Code of Conduct or Our Charter Values so as to enable him to fairly respond to these matters.

Response of 23 November 2016

[72] Mr Tomlinson accepted that Mr Guy checked his written response that he provided to the show cause letter. 70 Mr Tomlinson accepted he did not raise in his response that the SWI was unclear to him.71 The response from Mr Tomlinson described his actions as a “momentary lapse of judgement.” 72

[73] Ms Wells said that she read the Show Cause response a number of times. She said the clear impression that the Show Cause left on her was that Mr Tomlinson was indicating that he had put productivity over safety, which is a breach of the Charter Values of Sustainability. Ms Wells said that she formed the view that Mr Tomlinson was trying to suggest that this was an excuse for his conduct and intentional breaches of the U&L SWI, Code of Conduct and Charter Values. Ms Wells said that Mr Tomlinson’s response was completely inconsistent with the Charter Value of Sustainability. 73

Termination 30 November

[74] Mr Tomlinson submitted that never, prior to the decision to terminate his employment was he advised that the question of whether he had taken accountability for his actions, or his conduct in the 15 October Incident may be relied upon. He was not, as a result, given an opportunity to address BHP in relation to these matters prior to the decision to terminate his employment.

[75] Mr Guy said that he attended a meeting with Mr Tomlinson on 30 November 2016 at one of BHP’s offices just outside the township of Moranbah. Mr Guy said that present at the meeting were Ms Wells, Mr Damian Cavill who attended by video link and Ms Westbrook who attended by telephone. Mr Guy said the meeting was brief and Mr Cavill explained that he was the decision maker in Mr Tomlinson’s disciplinary process, and Mr Guy’s presence was only as a support person. 74

[76] Mr Guy said Mr Cavill then read out a letter terminating Mr Tomlinson’s employment. Mr Guy said Mr Tomlinson was asked if he had any questions and he replied that he did not. 75

[77] Ms Wells confirm in her evidence she discussed the letter with Mr Cavill before it was given to Mr Tomlinson, and that she agreed with everything in the letter. Ms Wells was taken to her statement 76 and confirmed in her oral evidence that the non-reporting of the issue was Mr Tomlinson’s failure to adhere to procedure in regard to the warning.77 When asked to explain the positive obligation under the Code of Conduct Ms Wells was referring to in her statement78 she said it was to “raise questions and concerns immediately”.79 Ms Wells said Mr Tomlinson was also in breach of the Charter Values of Sustainability and Integrity.

[78] Mr Cavill said that the final decision in relation to employment issues with personnel in the East Coast Warehouses sat with him. 80 Mr Cavill accepted that he had decided before going into the meeting on 30 November that Mr Tomlinson was going to be terminated.81 He accepted that he had never spoken to Mr Tomlinson about the allegations prior to the termination meeting on 30 November.82 He said he could not recall ever talking to Mr Tomlinson.83 Mr Cavill attended the termination meeting on 30 November by video conference in Brisbane.84

[79] Mr Cavill agreed with the proposition that his reasons for terminating Mr Tomlinson were that he reached the view Mr Tomlinson had deliberately failed to comply with the U&L SWI, and it was a conscious decision. 85 Further that he had a demonstrated history of breaching safety process, and also that he did not admit that he breached the requirements of the U&L SWI.86 Mr Cavill accepted that the way the meeting proceeded he read out the termination letter, and Mr Tomlinson was given the letter by Ms Wells who was in the room with him and at that point Mr Tomlinson was terminated.87

[80] Mr Cavill in his statement said as follows:

[81] Mr Cavill said in his statement that he closely followed the Discussion Planner document that was prepared for him. 89 There is nothing in that document that suggests that Mr Cavill was open to reconsidering the decision to terminate.

[82] Mr Cavill’s basis for maintaining Mr Tomlinson’s breach was deliberate was based he said on the findings of the ICAM, based on Mr Tomlinson’s qualifications, and that had the U&L SWI rolled out to him and he signed off that he acknowledged he read it and understood it and was willing to comply with it. 90

[83] Mr Cavill’s evidence at paragraph 59 of his statement suggested an opportunity of some kind existed for Mr Tomlinson at the meeting of 30 November. It is at odds with Mr Cavill’s evidence that he had decided to terminate Mr Tomlinson before the meeting, and that the meeting proceeded by him reading the termination letter. It is hardly surprising that Mr Tomlinson did not respond in any detail at the time given it would appear on the evidence any response was pointless given it was made entirely clear to him that the decision to terminate him had been made, was communicated to him, and handed to him in a written letter before any response could be made.

REASONS FOR TERMINATION

[84] The primary issues to be determined in this matter involve questions concerning whether Mr Tomlinson did or did not:

[85] Mr Tomlinson’s case involved an exploration of the history that led to the U&L SWI being in the form it was as at 12 November 2016. Mr Tomlinson gave evidence that in late 2015 he was involved in a team that developed Job Step Analyses (JSA’s) and consequent upon these SWI’s for the Warehouse. Mr Tomlinson explained that this process led to the development of a number of SWI’s including the U&L SWI. 91 Ms Wells accepted that the U&L SWI was developed based on the JSA and identified the JSA.92

[86] A document was also tendered as part of Mr Tomlinson’s case that was titled “Unloading Freight in a Controlled Environment”. 93 Mr Tomlinson said that the document was a standard work procedure created by himself, Nicky Gifford and Gary Weatherly in 2012 and was used until the current SWI applied.94

[87] Mr Tomlinson said that the U&L SWI (applying at the relevant time) came into operation at Peak Downs in about August 2016. Mr Tomlinson attached to his statement a copy of the JSA he took part in developing on which the U&L SWI was based. 95 He pointed out that the description of the task or activity the JSA described was as follows:

[88] Mr Tomlinson said the JSA only addressed loading insofar as it considered the backloading of a delivery vehicle and this was also reflected in the U&L SWI. Mr Tomlinson gave evidence that to the extent that the U&L JSA and the U&L SWI address the loading function, they do not address the manner in which the loading function is performed. He said they do not consider any different risk, or increased risk, in the loading function compared to the unloading function. 96

[89] Mr Tomlinson submitted that U&L SWI paid insufficient attention to the loading of goods and was incomplete in its treatment of the loading of goods. In relation to the requirements of Section 4 of the U&L SWI, it was submitted for Mr Tomlinson that:

[90] Mr Tomlinson submitted that in its terms Section 5 of the U&L SWI applies to “unloading of delivery vehicle.” Mr Tomlinson submitted that the first allegation is premised on the assumption that Section 5 also applied to the loading of items onto a delivery vehicle.

[91] It was Ms Wells’ evidence that the U&L SWI steps through the process for identifying hazards and implementing appropriate controls related to the tasks involved in loading and unloading freight from delivery vehicles to the warehouse Ms Wells said the U&L SWI covers each step in the process. 98

[92] Ms Wells also said Step 4 of the U&L SWI provides that the delivery driver, as a visitor, is to remain under the direction of the forklift operator at all times and identifies that unloading is to cease when the vehicle driver is on the deck of the vehicle. Ms Wells said that these requirements are of critical importance and gave as an example if there was uncontrolled movement while the vehicle driver was on the deck, they would be in the line of fire, as there is limited space on the deck to allow the driver to move away and they could injure themselves if, for example, they had to jump off the deck. 99

[93] Mr Tomlinson said in response that this is correct in regard to unloading, however when loading there is plenty of room on the deck, and that prior to August 2016 when the U&L SWI was introduced, it was not unusual for the driver to remain on the deck of the truck during loading. Mr Tomlinson said that the occasion when the incident occurred was the first time that he had loaded a vehicle when the driver sought to stand on the deck of the truck since the introduction of the U&L SWI. 100

Had an earlier custom and practice existed of drivers spotting in the red zone when loading?

[94] Mr Tomlinson said that in the months leading up to the incident on 12 November 2016, he regularly observed the NQX, Redline and Neverfail Water delivery drivers regularly in the “red zone” when loading, assisting with spotting and moving pallets around to assist in the loading while the forklift was still moving. He said that this was known to the management team. He said to his knowledge no action was taken by Mr Meyer or Ms Wells, either to do a “safety stop”, or otherwise investigate or discipline the forklift operator or other BHP employees involved. Mr Tomlinson said that this contributed to a lack of clarity around the proper procedure for loading or unloading freight. 101

[95] Ms Wells said that she expected that a competent coal mine worker would easily be able to comply with the U&L SWI, in particular the requirement that the forklift is stopped when any persons are in the “red zone” including on the deck of the delivery truck. 102

[96] Ms Wells was asked for her response about Mr Tomlinson’s evidence that in the months prior to 12 November drivers were regularly in the “red zone” when loading, and she said that she had no knowledge of delivery drivers being in the “red zone.” She was invited to elaborate on the issue and declined to do so. It is notable that Ms Wells did not directly refute that it was possible Mr Tomlinson’s evidence on the point could be correct, and limited her evidence to say that she had no knowledge of it. 103

[97] However in her written statement Ms Wells did deny that there was any custom and practice of having a spotter stand on the deck of the truck while a forklift is operating and loading the truck. In her statement Ms Wells said such conduct would be in violation of the U&L SWI, the Code of Conduct and the Charter Values. 104 Ms Wells accepted that it would not have been a breach of the procedure that applied prior to it.105 Ms Wells agreed that she was not familiar with the earlier policy.106

[98] Mr Rich directed me to the previous procedure 107 and the language at clause 3.1. I am satisfied that the arrangement as described in the previous procedure does not make expressly clear that a truck driver cannot be on the deck of a truck if there is positive communication for a truck driver to assist the forklift operator and help is required.

[99] On the evidence I am inclined to accept Mr Tomlinson’s evidence that it was not uncommon for drivers to act as a spotter in the “red zone” on the deck of truck in the months leading up to the incident. There was no clear evidence to contradict Mr Tomlinson’s on this point.

[100] Given Ms Wells accepted it was not a breach of the previous procedure it seems it should have been apparent to place some emphasis on ensuring employees there had been a change under the new U&L SWI introduced in August 2016.

How did the U&L SWI apply to loading?

[101] Ms Wells was taken through the U&L SWI while under cross examination. She accepted that the substeps within each of the steps were intended to be taken in chronological order. 108

[102] Ms Wells accepted that Step 4, substep 1 was directed at unsecuring load. 109 Ms Wells accepted that Mr Tomlinson and Mr Friske completed that step and did not breach that step.110 Ms Wells accepted there was no need to review the Exclusion Zone and mark a spotter location for the unloading stage.111

[103] Ms Wells accepted that the last step 4 substep 7, the last of the steps to be taken in chronological order in accordance with Step 4 was a clear direction in relation to unloading, and only addressed unloading. 112 Ms Wells accepted that step 4 substep 7 had been complied with.113

[104] Ms Wells was taken to her statement where she said that Step 4 of the U&L SWI expressly provides that the delivery driver is to remain under the direction of the forklift operator at all times and identified that unloading is to cease when the vehicle driver is on the deck of the truck. Ms Wells said in her statement that this requirement applies equally to backloading of the delivery vehicle. 114 Ms Wells gave oral evidence that she accepted that Mr Tomlinson did nothing wrong in the unloading process.115 Ms Tomlinson accepted there was no breach of step 5 of the U&L SWI.116

[105] Ms Wells was taken to the Investigation Report. 117 Ms Wells accepted that the Investigation Report took no issue with how the vehicle was unloaded.118 In oral evidence when Ms Wells was asked if she accepted that there is no allegation of any breach in relation to step 6 of the U&L SWI she said there was.119 Ms Wells was unable to point to this allegation having been included in the Show Cause Letter of 21 November 2016.120

[106] Mr Cavill accepted that the U&L SWI and the Hazard Analysis Form were separate documents. 121 He accepted that the U&L SWI does not say that loading is to cease when the vehicle driver is on the back of the truck.122 He agreed with the proposition that it was his contention that Step 4 of the U&L SWI and Step 6 of the U&L SWI when read with the Hazard Analysis Form together and in conjunction show the overarching intent of both documents.123

[107] In response to Mr Tomlinson’s contentions that he did not breach Sections 4 or 5 of the U&L SWI, BHP submitted that Section 4 of the U&L SWI required Mr Tomlinson and Mr Friske to complete the PDM FRM FHA Form. This form has three sections to be completed – Freight Hazard Analysis, Unloading and Loading. The form completed by Mr Tomlinson on 12 November 2016 does not have the section entitled "Loading" completed when it is apparent that there were loading activities being performed at the relevant time. BHP submitted that therefore, Mr Tomlinson did not comply with Section 4 of the U&L SWI in this regard. Ms Wells addressed this in her evidence. 124

[108] BHP further submitted that the form contains a diagram entitled “Exclusion Zones- use for unloading and loading freight”. BHP submitted this diagram clearly demarcates the areas that are considered unsafe for the spotter to be in during such activities. These are marked as “red zones”. This diagram also clearly identifies that in relation to the “red zone” identified as the deck of the truck, persons should only enter under direction of the forklift operator and when the forklift has stopped. Ms Wells also addressed this matter in her evidence. 125

[109] BHP submitted that when Sections 4 and 5 of the U&L SWI are read in conjunction with the FHA Form, the documents establish that a person should not enter the deck of the truck unless at the direction of the forklift operator and when the forklift is stopped. It submitted that Mr Tomlinson clearly failed to comply with this requirement on 12 November 2016 and caused Mr Friske an injury as a direct result. Ms Wells said that the cumulative effect of the U&L SWI and the FHA Form is that a truck cannot be loaded or unloaded while any person, including the delivery driver and/or spotter, is on the deck of the truck. She said the only circumstances in which a person can enter the “red zone” and climb onto the deck of a truck, regardless of whether the truck is being loaded or unloaded, are if;

[110] Ms Wells said that there are no circumstances in which a spotter should be on the rear of a truck while the forklift is in operation, and this is confirmed by Step 4, 5 and 6 of the U&L SWI and the FHA Form. Ms Wells said if the forklift operator has impeded vision, then they should not move the forklift until they have clear view and have ensured all persons are out of the “red zone.” 127

[111] Mr Tomlinson said there are different considerations and pressures that come to bear when loading, as opposed to when loading. He said the U&L SWI was not clear on the way that it dealt with loading procedures and that he did not intentionally breach the U&L SWI. 128

[112] Mr Tomlinson accepted that having someone on the deck of the truck when he was moving a forklift posed a risk. 129 He accepted that his visibility was obstructed.130 He accepted that it was incumbent on him as the forklift operator to ensure that persons are clear of the forklift before he starts operating it.131 He accepted that was why a “red zone” is depicted as part of the task because of the danger.132

[113] Ms Wells’ own evidence supports a conclusion that step 4 and step 5 of the SWI did not apply on their own terms to the loading of the vehicle, they applied to the unloading component.

[114] Further the U&L SWI does not expressly say that loading must cease when a driver is on the deck of a truck. I am satisfied this created a degree of ambiguity about how the forklift operator and truck driver undertake the loading process.

[115] Mr Cavill gave evidence that when the U&L SWI Step 4 and 6 and the Hazard Form are read together the overarching intent is clear. However the FHA Form itself had been subject to a number of amendments from late 2015 to the date of the incident. The Hazard Form is not part of the U&L SWI. It is not attached to the U&L SWI. The U&L SWI in the section that pertains to unloading refers specifically to exclusion zones, and there is no similar reference in the loading section.

[116] BHP emphasised in closing submissions that the U&L SWI identified the PDM FRM FHA Form as one of the tools required on its first page, and that the Hazard Form was again referenced for completion at step 4 of the U&L SWI and at step 5 the exclusion diagram on the Hazard Form is replicated. The difficulty is that in Ms Wells own evidence the U&L SWI steps apply in chronological order and step 4 and 5 do not apply to loading.

[117] Step 6 of the U&L SWI does however say at the last step, that the relevant section of the Hazard Form is to be completed. Further the Hazard Form says at the top of the first page, ‘Complete prior to unloading or loading Medium or Heavy Vehicle in conjunction with the Delivery Driver’. However certain steps at step 3 in the Hazard Form concerning loading cannot be completed until after loading. In summary the evidence pointed to a lack of clarity around proper procedure when loading as compared to unloading.

Was the compete removal of Curtains required by U&L SWI?

[118] It was put to Mr Tomlinson that best practice would have been to retract the curtain of the truck all the way to the front of the truck. Mr Tomlinson responded that there was no need to pull the curtain all the way forward. 133 It was put to Mr Tomlinson that the incident occurred because the curtain had not been taken back to the front of the truck and he responded that there were no issues with the curtain while he was unloading the truck.134 It was also put to Mr Tomlinson that the only reason Mr Friske was fixing the curtain was because the curtain was not taken back to the front of the truck.135

[119] BHP submitted that, Section 4 of the U&L SWI requires that all curtains and tarps are to be removed prior to the removal of any load restraints. It submitted that in this case Mr Tomlinson failed to ensure that this requirement was complied with as Mr Friske had not opened the curtain all the way to the front of the truck. This created an obstruction when the cage was being loaded back onto the truck which led to Mr Friske being injured.

[120] Ms Wells for BHP said that Step 4 of the U&L SWI deals with the preparation of the unloading/loading area and provides a reminder that “all curtains and tarps are to be removed prior to the removal of any load constraints”. Ms Wells said that this requirement is of critical importance, as unless all curtains and tarps are completely removed by pulling them all the way back, the hazards of impeded visibility of the forklift operator and of damage to the vehicle and/or curtain cannot be adequately controlled. 136

[121] Ms Wells appeared to contradict herself on this point while under cross examination to the extent that she appeared to at first agree that the warning in regard to curtains and tarps contained in the U&L SWI at step 4 was intended to be directed to the issue of the curtains or tarps being removed “prior” to removal of load restraints, and not a requirement that curtains or tarps be completely removed from the truck. 137

[122] When Ms Wells was taken to her statement on this issue she then appeared to revert to the opinion that the warning required the complete removal of curtains or tarps, however it applied in circumstances where visibility is impaired. 138 Ms Wells’ evidence appeared to be to the effect that it was for the judgement of the employee at the relevant time as to whether tarps or curtains should be removed completely or not depending on the extent to which there visibility is impaired. This is at odds were her statement that it was a requirement that all curtains and tarps are completely removed by pulling them all the way to back. Ms Wells accepted that the curtains and tarps were removed prior to the removal of the load restraints.139

[123] Ms Wells was taken to her statement where she said that she was satisfied that Mr Tomlinson had breached the U&L SWI by failing to ensure the curtain was removed by pulling it all the way back prior to removing the load restraints required by step 4 of the U&L SWI. 140

[124] Ms Wells accepted in oral evidence that the amended U&L SWI issued on 19 December included in the reminders section at Step 3 “All curtains are to be fully retracted for the unload and load process”. Ms Wells accepted that the requirement about the curtains was not about taking them off. 141

[125] I am satisfied the warning contained in the U&L SWI in relation to the curtains was intended to be directed to the matter of the timing of the removal of curtains and tarps not the manner of their removal. It was not intended that the U&L SWI would establish an absolute requirement that curtains and tarps be completely removed in all cases, and the extent of their removal would be a matter of judgement depending on the extent to which they may interfere with visibility. I am satisfied from the evidence that the U&L SWI as it applied at the relevant time did not require side curtains to be removed all the way to the front end of the deck of the truck.

[126] To the extent that Mr Tomlinson was found to have been in breach of the U&L SWI for failing to move the curtain to the back of the deck of the truck, this is not a correct reading of the U&L SWI as it was worded at the relevant time and prior to amendments.

Failure to complete all of Hazard Form

[127] Mr Tomlinson was taken to the FHA Form he completed before unloading commenced. He agreed he did not mark the spotter location for unloading, and said that was because he unloaded the truck and a spotter wasn’t required at that stage. 142 He accepted the deck of the truck was within a “red zone” as shown on the diagram on the second page of the Form.143 He accepted the diagram said the “red zone” was only to be entered under direction of the forklift operator and when the forklift operator is stopped.144

[128] Mr Tomlinson accepted that he did not fill in the Section 3 loading part of the FHA Form. 145 He claimed he and Mr Friske discussed and agreed on a load strategy and completed other steps set out in the Hazard Form however these steps were not marked on the Form.

[129] Mr Tomlinson accepted that the exclusion zone on the Hazard Form said you cannot operate a forklift when someone is in the “red zone”, and that he did operate the forklift that day with Mr Friske in the “red zone.” 146

[130] Mr Tomlinson accepted that the Form required him to review the exclusion zone and mark a spotter location if applicable, and he accepted that he did not do this. 147 He agreed with the proposition that he had decided that there was no need to mark a spotter location on the Hazard Form. He also accepted that Mr Friske was inside the “red zone” depicted in the Hazard Form.148

[131] Ms Wells said that Step 4 of the U&L SWI provides that in preparing the unloading/loading area, the Warehouse administrator and delivery driver are to complete the Hazard Form. The first page of the Form says that it is to be completed in conjunction with the delivery driver prior to unloading and loading. Item 2 and Item 3 of the Hazard Form provide the exclusion zone mandatory checks on the second page of the Hazard Form are to be reviewed and the spotter location is to be marked on the diagram. 149

[132] Mr Tomlinson said in his reply statement that standard practice was to complete the unloading portion of the Hazard Form relating to unloading prior to unloading, and to complete the portion of the form that related to loading in Section 3 after loading was completed. Mr Tomlinson noted that the heading of Section 3 does not specify it must be completed prior to loading unlike Section 2. Mr Tomlinson said he did not receive any training in relation to the FHA Form which had changed 3 times over the preceding 6 months. 150

[133] His oral evidence was consistent on this point and to the effect that some parts of the form in Section 3 cannot be completed until the cage or item is actually on the truck and secured to the truck. A copy of the FHA Form attached to Mr Tomlinson’s statement 151 indicates he did not tick any of the boxes in Section 3 of the Form. There appears to be 12 separate matters in Section 3 that require the person completing the Form to mark as either not applicable in one column, or mark with a tick or a cross. At the top of the Form on the first page it says as follows:

[134] Mr Tomlinson accepted that he failed to tick the boxes but said he had the conversations. 152 I would accept the third item concerning whether the load is positioned for weight distribution may well be a matter which cannot be ticked until after loading has been completed. The seventh item concerning whether all freight is restrained would also appear to be a box that could not be ticked until after loading. Item nine as well, concerning the securing of gates and tarps would seem to be a matter that could only be ticked after loading. However whether a number of the 12 items could not be ticked until after loading does not explain why the other items were not ticked before loading, or why the other items were not ticked after loading.

Was there sufficient Training in use of the U&L SWI and Hazard Form?

[135] Mr Tomlinson said he held a high risk work ticket for the operation of forklifts and agreed that in 2012 he had undergone theory and practical assessment in the operation of a forklift that was current at the time of his termination. 153 He accepted that ensuring no pedestrians or people were in front of the forklift when he moved it forward was a basic safety measure.154

[136] Ms Wells said that her supervisors focus on having daily safety discussions with Warehouse Operators in relation to their understanding of the procedures in the U&L SWI. She said she personally drives and initiates these discussions when she is on site at the Mine. She said there are not always formal discussions with individual operators, and they might take the form of a discussion as part of a pre-start meeting for the oncoming crew, or it might be that a supervisor has a discussion with a particular operator and goes through the U&L SWI to make sure that the operator can demonstrate their understanding.

[137] Ms Wells did not know the date in August 2016 that the U&L SWI was implemented. 155 Ms Wells said she was not present when Mr Tomlinson was provided with a copy of the U&L SWI after returning from leave on 20 August 2016.156 Ms Wells said she did not know whether or not Mr Tomlinson was provided a copy of the FHA Form at the same time he was provided the U&L SWI.157 Ms Wells could not give evidence on the process followed when Mr Tomlinson was handed the U&L SWI and agreed there was no record of what sort of training or what was said to him about the work instruction.158

[138] Ms Wells accepted that the FHA Form had changed a couple of times in the preceding 6 months leading up to the introduction of the U&L SWI. 159 Ms Wells indicated the reasons for the changes were because “we engaged field leadership with the FHA Form with Mr Tomlinson and other operators.”160 Ms Wells did not give specific evidence about when she said employees were trained in the changes however her evidence appeared to be that it occurred throughout the day or when there was a truck in the yard.161

[139] Ms Wells’ evidence is far from conclusive about the matter of whether Mr Tomlinson or employees were at a particular date or time ever taken through the U&L SWI and the amended Hazard Form and given a proper explanation about the manner in which BHP intended that its employees would apply both documents.

[140] Mr Tomlinson said there was never any training on the U&L SWI or the Hazard Analysis Form. He said to his knowledge no action was taken by Mr Meyer or Ms Wells, either to do a “safety stop”, or otherwise investigate or discipline a forklift operator or other BHP employee involved. He said that this contributed to the lack of clarity around the proper procedures when loading. 162

[141] Mr Tomlinson rejected the proposition that he had been taken through the SWI by one of his supervisors. 163 He said he was on leave when the SWI was introduced. He accepted that he had signed a copy of the SWI on 20 August 2016 and confirmed at the time he understood it.164 He said in his evidence that he identified errors in the SWI and advised his supervisor David Meyer of these errors and he put in a process through the “Take Time Talks” to address this.165

[142] Mr Tomlinson said that Ms Wells never initiated a discussion with him in relation to his understanding of the U&L SWI. He said in his experience the safety discussions initiated on site were, (a) a pre-start meeting where a supervisor would usually ask for a “safety share”, and workers would offer examples, (b) at pre-start meetings the supervisor would read out incidents that had occurred over the previous 24 hours on the site and ask whether anyone had a comment, and (c) during a shift Ms Wells or a supervisor may call a “safety stop” if they observed an unsafe practice taking place, or if an incident had occurred on another site, collect the crew and relay the issue to them. Mr Tomlinson said at no time did he recall Ms Wells or a supervisor raising, either at a pre-start meeting or in a “safety stop”, the operation of the U&L SWI. 166

[143] It was my impression Mr Tomlinson took active note of matters concerned with safety and it is likely he would have a good recollection of the discussion of safety issues. Ms Wells’ evidence in relation to how training in regard to the U&L SWI was general in nature. I am inclined to accept Mr Tomlinson’s evidence that Ms Wells or a supervisor did not raise in detail the operation of the U&L SWI at a either a pre-start meeting or a “safety stop” that he attended and explain how the new U&L SWI and amended Hazard Form were to be operate.

[144] Given I have earlier accepted Mr Tomlinson’s evidence that drivers did remain on the deck of trucks during loading prior to the introduction of the U&L SWI, and Ms Wells accepted that it was not a breach of the previous procedure to do so, it would have been appropriate to train employees in the operation of the new procedure when it was introduced, and I have not been satisfied on the evidence that occurred in a meaningful way. BHP Should have done more to provide instruction to its employees about what was expected of them following the introduction of the new U&L SWI and amendments to the Hazard Form.

Why was the U&L SWI Amended?

[145] It is relevant that the U&L SWI was amended after the termination of Mr Tomlinson to now include an amended section on loading, which was not the case before the termination of Mr Tomlinson. 167

[146] Ms Wells said in her statement that all of the SWI’s that apply in Minerals Australia Warehouses have recently been reviewed in an attempt to align and standardise procedures, including the U&L SWI. Ms Wells said that the review was not a result of the incident that occurred on 12 November 2016. Ms Wells claimed that the U&L SWI always had a section on loading, being step 4, 5 and 6 and incorporated reference to the FHA Form. 168

[147] However under cross examination Ms Wells was then taken to the recommendations of the Investigation Report that included the recommendations under a heading ‘Corrective Action Path’ to update the SWI to reflect the corrective actions suggested. Ms Wells accepted that the recommendation to update the SWI to reflect that loading/unloading is to cease if driver on the deck was really referring to updating the SWI to reflect ‘loading’ was to cease if the driver was on the deck. 169 Ms Wells accepted that U&L SWI did not previously say that.170

[148] Ms Wells accepted that the U&L SWI was amended and she identified the amended version 2 dated 19 December 2016. 171 Ms Wells accepted that the amendments reflected the recommendation of the Investigation Report.172

[149] Ms Wells accepted that the amended U&L SWI issued on 19 December included in the reminders section at Step 3 “No access to deck of truck during unloading and loading”, and “All curtains are to be fully retracted for the unload and load process”. Ms Wells accepted that the requirement about the curtains was not about taking them off. 173 Ms Wells accepted that the new Step 4 made clear in the reminders section that no access to the deck of the truck applied to loading as well.174 Ms Wells accepted these requirements were not clearly defined in U&L SWI that applied at the time of the incident on 12 November.175

[150] It appeared to be inferred in Ms Wells’ statement that the amendments made to the U&L SWI were unrelated to the incident of 12 November as a review was occurring anyway. The amendments followed recommendations from the ICAM investigation into the incident. Ms Wells was involved in that preparation of the report. If it was intended to suggest the amendments to the U&L SWI and the incident were not related this is clearly not so.

[151] It is apparent that the Investigation Report had identified a deficiency in the U&L SWI and its recommendations were directed to make clear that was expected of employees when loading as well as unloading.

Did Mr Friske say good to go or words to that effect?

[152] Mr Tomlinson was shown a photograph admitted into evidence 176 from which he identified the redline truck, the curtain hanging down and a metal pole around the midpoint of the tray of the truck.177 In oral evidence Mr Tomlinson said when Mr Friske said it was right to go he then moved the cage back into the truck. Mr Tomlinson appeared to accept this evidence was not in his written statements.178

[153] Mr Tomlinson was also taken to the written statement he made on 12 November 2016 regarding the incident 179 and it was put to him that he did not say in that document that Mr Friske had told him he was good to go. Mr Tomlinson appeared to indicate it was on the understanding that the curtain had been pulled upright.180 Mr Tomlinson’s evidence appeared to suggest that it was just understood between the two men that he could proceed to move forward however it was not entirely clear.

[154] Further, Mr Tomlinson did not say in his show cause response that Mr Friske gave him the go ahead. Ms Freeman suggested I should be skeptical about accepting Mr Tomlinson’s oral evidence on this matter. Mr Tomlinson was the only witness to the event who gave evidence at the hearing.

[155] Whilst it would have put the matter beyond doubt had Mr Tomlinson included reference to the matter in his witness statement, I am not inclined to draw an adverse inference about his not referring to it in his show cause response given that document was not a response to the particulars of the incident, but a response as to why he should not be terminated.

[156] This conflict in the evidence draws attention to one of the difficulties in BHP’s approach in proceeding to reaching conclusions about the incident without having interviewed either Mr Tomlinson or Mr Friske. BHP now seeks to rely on a brief statement from Mr Friske in the absence of any evidence from Friske before the Commission. The only witness evidence I have on whether Mr Friske told Mr Tomlinson he was good to go was that of Mr Tomlinson. Mr Tomlinson has not contradicted himself on the issue, the issue is he did not make specific reference to it in his statement. I found Mr Tomlinson’s evidence otherwise to be direct and consistent. On that basis I am inclined to accept his evidence on both the point about where Mr Friske was standing at the time he moved the forklift forward, and that he could see Mr Friske was to the side of the upright metal post, and Mr Tomlinson’s evidence that Mr Friske said he was “right to go”, “good to go” or some words to that effect.

HARSH, UNJUST OR UNREASONABLE

s.387(a) Valid Reason

[157] BHP reasons for termination are as dealt with in detail above but in essence are based on the conclusions that Mr Tomlinson failed to follow procedure, resulting in breaches of the said procedures and the Code of Conduct and Values, his previous breach of Code in connection with the warning of 15 October and his lack of accountability.

[158] BHP determined that the breach of the U&L SWI was an intentional action not to follow procedure.

[159] It appears that Mr Tomlinson’s actions in driving the Forklift forward and seeking to load the cage onto the deck of the truck whilst Mr Friske was standing on the deck of the truck may be inconsistent with the intent of the diagram on the Hazard Form stating that the “red zone” only be entered under the direction of the forklift operator and when the forklift is stopped. However the question of whether the Hazard Form made it expressly clear that Mr Friske could not act as a spotter from a position on the deck of the truck is debatable. The language “only enter under direction of the forklift operator and when the forklift is stopped” does not say a spotter must leave the “red zone” before the forklift recommences operation. The language employed under the Mandatory Checks set out next to the diagram on the Hazard Form leaves some room for debate about the issue. It includes the following points:

[160] Whilst the language makes clear the default position is the driver should be outside the “red zone”, it contemplates the driver being inside the “red zone” under certain conditions. This, in combination with the deficiencies in the version of the U&L SWI and the evidence concerning previous practices makes it probable that Mr Tomlinson simply did not believe allowing Mr Friske to act as a spotter from the deck of the truck was inconsistent with approved procedure. Mr Tomlinson was consistent in his evidence that he did not intentionally breach the U&L SWI. 181

[161] I am not satisfied that Mr Tomlinson deliberately or knowingly breached the U&L SWI. It is clear that Mr Tomlinson made a wrong decision and misjudged the hazard causing the injury to Mr Friske’s hand which thankfully was not; it seems from the evidence a serious injury.

[162] Having reached the conclusion that his actions were not intentional, the issue then becomes whether his action in moving the forklift forward when Mr Friske was spotting from the deck of the truck was of itself a valid reason for dismissal on the basis as argued by BHP. 182

[163] BHP submitted that Mr Tomlinson had 25 years’ experience of operating forklifts, had been at the company for a number of years, he did this task daily, filled in the form daily and would be well aware of the obvious hazards involved in that task and therefore the Commission should be skeptical about the claim that his was a momentary lapse of judgement. 183

[164] I have accepted that there was a lack of clarity around the proper procedures when loading. I accept that Mr Tomlinson had a good record in regard to safety issues. I have found his previous warning was disproportionate to the circumstances concerning that warning. I accept that there was a practice of drivers spotting on the deck of trucks prior to the introduction of the U&L SWI. I have found that the U&L SWI itself was ambiguous in terms of the procedure for loading and that step 4 and 5 did not apply to loading as asserted by BHP. I have found the U&L SWI did not require the complete removal of curtains as asserted by BHP.

[165] I have found that Mr Tomlinson failed to complete step 3 of the Hazard Form however a number of items that were required to be ticked appear to only be able to be ticked after loading is completed. I have found BHP should have done more to provide instruction concerning the new U&L SWI and amendments to the Hazard Form. The U&L SWI was amended after the termination of Mr Tomlinson on the basis of recommendations from the Investigation Report that it was deficient concerning loading. I have also preferred Mr Tomlinson’s evidence that Mr Friske did say he was good to go when he moved forward with the forklift.

[166] Mr Tomlinson should have completed all of the Hazard Form including marking the x on the second page where there is a diagram pertaining to the loading, and this could have led to a decision that Mr Friske move out of the “red zone” before Mr Tomlinson started to move the forklift he was operating forward however it was not so clear it was obvious this was required.

[167] It is appropriate for BHP to adopt a very strict approach to safety in the dangerous work environment that is a coal mine. But for BHP to be entitled to fairly apply a strict approach it must have clear procedures. The U&L SWI was not clear. BHP’s decision to address this deficiency by amending the document is evidence of this.

[168] Importantly Ms Wells said that if Mr Tomlinson had accepted accountability for his conduct and acknowledged that he had breached the U&L SWI then she might have come to a different conclusion. Ms Wells said that if he had indicated some insight into his conduct and breaches, then she thought she could have worked with that and provided him with coaching sufficient to satisfy her that he could safely return to operational work at the Mine. 184

[169] Contary to Ms Wells evidence that Mr Tomlinson refused to accept accountability for his conduct, the show cause response of Mr Tomlinson said expressly that what had occurred on 12 November 2016 was a “momentary lapse of judgement on my part”. This is an acknowledgement that what he did was wrong. It is plain from the evidence that the heart of the matter from Ms Wells’ perspective was that she formed the view that Mr Tomlinson’s conduct was a deliberate and intentional breach, whereas Mr Tomlinson’s evidence is that it was unintentional. On that dispute, the evidence supports the conclusion that Ms Wells was wrong to form the view Mr Tomlinson acted intentionally.

[170] The second allegation was that Mr Tomlinson breached the Our Expectations of You 185 and Health and Safety186 of the Code of Conduct. If Mr Tomlinson did breach the Code of Conduct insofar as he breached the U&L SWI or did not complete the Hazard Form he did not do so for the reasons BHP determined that he had.

[171] Ms Wells identified the section under the heading “Our Expectations of You” and the expectation to “raise all questions and concerns immediately” within the Code of Conduct as being breached by Mr Tomlinson. Ms Wells accepted she did not make this known to Mr Tomlinson before his termination. 187 Ms Wells said when the U&L SWI was introduced Mr Tomlinson did not ask questions, he understood it and signed it.188

[172] Ms Wells was also referred to her letter of 21 November to Mr Tomlinson where she also said Mr Tomlinson breached Health and Safety page 10 and 11 within the Code and she was asked what obligations Mr Tomlinson had breached. Ms Wells answered by referred to the obligations to:

[173] Ms Wells agreed that the requirement to immediately stop any work that appears unsafe as referring to the employees objective assessment of whether it appears unsafe. Ms Wells accepted that it was not suggested that Mr Tomlinson saw what he was doing as unsafe. 189

[174] The third allegation was that Mr Tomlinson breached the Charter Values of Sustainability and Integrity. Ms Wells accepted that the Values of Sustainability and Integrity needed to be read in the light of what the company was requiring its employees to do, measured by BHP’s procedures in place. 190 Ms Wells accepted the proposition that the values in the charter have to be viewed in light of what the procedures of BHP are.191

[175] In the light of all of the findings set out above, I am satisfied that to the extent Mr Tomlinson’s conduct may be been in breach of either the Code of Conduct or the Charter Values the breach was not of a nature that would warrant termination. I accept Mr Tomlinson’s evidence that he had a momentary lapse of judgement. The evidence was that the injury to Mr Friske’s hand was not serious.

[176] However, I have had regard to the decision of a Full Bench of Fair Work Australia in IGA Distribution (Vic) Pty Ltd v Cong Nguyen 192 where the Full Bench said as follows about the matter involving a forklift driver being involved in a collision:

[177] The evidence was that the injury to Mr Friske’s hand was caused by Mr Tomlinson’s ‘lapse of judgement’ and wrong decision. There are a range of reasons as set out above that could tell against a conclusion that BHP had a valid reason, however it is accepted by Mr Tomlinson that he made a wrong, and unsafe decision to move the forklift forward when he did, and that he failed to complete all of the Hazard Form. These undisputed facts point to the conclusion which I have reached, that BHP did have a valid reason for termination. However the range of issues discussed above are squarely relevant to the broader issue of fairness.

s.387(b) Whether Person was notified of that reason

[178] It was never indicated to Mr Tomlinson that the facts that led to the warning were considered relevant to demonstrate the subsequently determined pattern of behaviour. Further Mr Tomlinson was not given an opportunity to address BHP in relation to the conclusion that he had not shown accountability. It was also not put to Mr Tomlinson that he breached the Hazard Form.

[179] It was put for Mr Tomlinson that the recent decision in Crawford v BHP Pty Ltd 193 was relevant insofar as similarly to this case, issues that weren’t put to the applicant prior to dismissal were relied upon to determine that the applicant had not shown remorse for his actions.194 I accept the submission that there are parallels between the criticism made in that decision195 of BHP’s failure to put to the employee allegations relied upon to terminate him, and what has occurred to Mr Tomlinson and this tells in favour of a finding the dismissal was unfair.

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

[180] Mr Tomlinson submitted he was not given an opportunity to respond to either the findings or the allegations. By the time Mr Tomlinson was informed of the findings and the allegations against him a decision had already been made by BHP in relation to those determinations.

[181] Mr Tomlinson said that no investigation or inquiry was ever made into his understanding of the requirements of the U&L SWI. 196 Ms Wells accepted that in relation to the ICAM investigation no interviews took place.197 She accepted the findings made in her letter of 21 November were based on the ICAM investigation.198 Ms Wells also accepted that the ICAM Investigation did not make any findings of breaches and that those were her conclusions.199

[182] Ms Wells accepted that at the meeting of 21 November she read out the letter of that date, and following that Mr Tomlinson asked for a copy of the ICAM Investigation report and she denied his request. 200

[183] Ms Wells accepted that determination had been made at the 21 November meeting, and Mr Tomlinson was being asked to respond to the letter with reasons why he should not be terminated. 201

[184] Ms Wells’ evidence indicates that she formed a subjective opinion that Mr Tomlinson decided to prioritise productivity over safety and on that basis was in breach of the Charter Values of Sustainability. It seems the only parts of the letter that could arguably provide support for Ms Wells having arrived at her stated view were contained in the fourth and seventh paragraphs as follows:

[185] Mr Tomlinson said that the point that he was trying to make in his letter was that it contributed to his exercising poor judgement and making the wrong decision to allow Mr Friske to do as he had suggested and get onto the back of the truck and pull the side curtain out of the way. He denied prioritising his tasks over safety, but said he felt stressed and in retrospect thought this contributed to his decision making and the incident. 202

[186] Mr Tomlinson’s explanation in this regard is plausible. Ms Wells accepted in oral evidence that Mr Tomlinson might have said what he did to explain that he was stressed and under pressure at the time. Ms Wells also accepted she did not ask Mr Tomlinson about why he used those words. Ms Wells accepted that she did not know why Mr Tomlinson wrote the words in his response letter and had no way of knowing her conclusion was correct as to what Mr Tomlinson’s words meant. 203

[187] Ms Wells accepted that she had reached the view that Mr Tomlinson knew what the U&L SWI required and despite that failed to comply with it. 204 Ms Wells accepted that she never asked Mr Tomlinson whether he understood the U&L SWI.205

[188] Ms Wells accepted her conclusion may have been different if Mr Tomlinson hadn’t understood the U&L SWI and therefore did not intentionally fail to comply with it. 206 Ms Wells accepted that she did not give Mr Tomlinson an opportunity to address whether he understood the U&L SWI or not.207

[189] Mr Cavill said in his evidence:

[190] It was put to Mr Cavill that at the point Mr Tomlinson was giving his show cause response Ms Wells had already found that he had breached the U&L SWI. Mr Cavill accepted that. 209 Mr Cavill accepted that Mr Tomlinson’s response that he reviewed was a response to the question of whether he should be terminated.210

[191] The response letter provided by Mr Tomlinson does not provide a sound basis for Ms Wells to have arrived at the view that Mr Tomlinson had prioritised productivity over safety and on a plan reading of the response is a bridge to far. To the extent that Ms Wells formed this view and that it contributed to the decision to dismiss Mr Tomlinson, it was unfair.

[192] The process did not give Mr Tomlinson an opportunity to respond to allegations that he had breached the U&L SWI. Ms Wells accepted that the process of determining whether Mr Tomlinson had breached the U&L SWI had already been determined by the time of the meeting on 21 November, and his response from that point was in regard to the reason he should not be terminated. 211 On 23 November Mr Tomlinson was simply told by Ms Wells findings had been made against him.

[193] The ICAM report was made on the basis of two brief incident reports from Mr Tomlinson and Mr Friske. It was never put to Mr Tomlinson that he was in breach of the Hazard Form. It was not a finding made by Ms Wells.

[194] Most importantly Mr Tomlinson was never given an opportunity to respond to BHP on the matter of whether he deliberately or intentionally breached procedure, before Ms Wells and subsequently Mr Cavill reached a concluded view that his actions were intentional. It is clear from the evidence that matter was fundamental in the decision to terminate Mr Tomlinson.

[195] Further BHP never afforded Mr Tomlinson an opportunity to respond to the allegation that he did not take accountability for his actions. In fact the evidence indicated that BHP had formed that view Mr Tomlinson had not accepted accountability for his actions before issuing the show cause letter of 21 November. 212

[196] BHP has relied on a decision of Sams DP in Slater v Patrick Port Logistics Pty Ltd 213 to argue that the show cause letter was an opportunity for Mr Tomlinson to defend himself. The circumstances in that matter are distinguishable from this case given it was found by Sams DP in Slater that “this claim of procedural fairness was so inconsequential as to go nowhere near to constituting a denial of procedural fairness or natural justice.”   In this case it is plain Mr Tomlinson had no opportunity to address findings made against him before they were made.

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

[197] BHP did not refuse Mr Tomlinson the opportunity to be assisted in discussions.

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

[198] Section 387 is not relevant in this matter as the matter related to alleged misconduct and not performance.

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

[199] BHP is a very large employer. Its size would be unlikely to impact on the procedures followed in effecting the dismissal.

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

[200] BHP accepts that it had dedicated human resources management and that section 387(f) is not relevant.

S.387(h) any other matters that the FWC considers relevant

[201] I have found that the U&L SWI was ambiguous, training in relation to it and the Hazard Form was not provided, and the previous procedure allowed drivers on the deck of trucks while loading. Mr Tomlinson had a good safety record and he will not readily find suitable alternative employment and was engaged on a temporary basis.

[202] BHP referred to the earlier written warning and submitted it was relevant as an additional matter that was relevant. For the reasons set out above I do not regard the earlier warning as affording BHP much assistance.

[203] Whilst I have been satisfied that there was a valid reason for termination, the dismissal was procedurally unfair. Matters I have considered under s.387(h) also favour Mr Tomlinson.

[204] BHP in its submissions relied on the Full Bench decision in Paramalat Food Products Ptd Ltd v Wililo. 214  That matter is distinguishable in that it involved an employee whose service was short and whose disciplinary record poor. The conduct was found to be deliberate and the employee was found guilty of serious misconduct. None of these elements are present in this case.

[205] BHP also relies on a Full Bench decision of the FWC in BHP Coal Pty Ltd v Schmidt. 215  That matter is also distinguishable from this case. In that matter the employee had received a number of earlier warnings about his conduct. In regard to the incident that led to termination it was concluded that the employee while operating a dozer caused damage to a fuel tank, was aware of the damage and the fuel leak and did not report the incident. Further in Schmidt BHP conducted two meetings with the employee before suspending him and then conducting further investigations. Only after those further investigations was a show cause letter issued setting out the findings of the investigation and the employee was then given a further opportunity to respond. It would be inappropriate given the evidence concerning Mr Tomlinson’s approach on safety matters that he should be considered in a similar category to the employee in Schmidt who failed to report what was a serious matter. Further, Mr Tomlinson had only one earlier warning which I have found was disproportionate, and Mr Tomlinson, unlike the case in Schmidt, was clearly denied procedural fairness.

[206] On the basis of having considered each of the matters that are relevant under s.387 I am satisfied that the dismissal was harsh, unjust or unreasonable.

[207] It was harsh because inadequate account was taken of Mr Tomlinson’s strong record in relation to safety. It was unjust because BHP improperly characterised the true circumstances concerning the incident and the associated ambiguity about its procedures. It was unreasonable in that BHP concluded Mr Tomlinson acted deliberately when he did not. For those reasons I have concluded the termination was unfair.

REMEDY

[208] Mr Cavill talked in his evidence about a loss of trust in the employer and employee relationship, and his concerns about the return of Mr Tomlinson to the workplace for fear of safety for Mr Tomlinson and others. 216 BHP submitted that this needs to be considered in the context of the onerous statutory obligations the company has under the Coal Mining Health and Safety Act 1999. BHP submits that it is untenable to have Mr Tomlinson back on site.

[209] I do not accept that submission. A Full Bench of the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd 217 said as follows in regard to the issue of trust and confidence:

[210] Further in the same decision the Full Bench said as follows;

[211] I have found Mr Tomlinson’s actions were not deliberate. The incident in question was an isolated lapse in judgement, and not recurring in nature. Mr Tomlinson had an otherwise good record concerning safety matters. The employer’s concerns that it has lost trust in Mr Tomlinson are not soundly and rationally based in all of the circumstances and I do not accept that trust cannot be restored. I have concluded the matter of trust in this case is not a proper basis to find that reinstatement is inappropriate.

[212] As at the time of the hearing Mr Tomlinson had obtained temporary employment with a labour hire employer contracting to the local council. He is 43 years of age. 218 Reinstatement remains the primary remedy pursuant to s.390(3).

[213] The effect of not reinstating will be significant. The evidence shows a failure to reinstate will result in Mr Tomlinson remaining in temporary and insecure employment on wages well over 50% lower than his rates of pay at BHP.

[214] I am satisfied that in the circumstances reinstatement is the appropriate remedy and I intend to order that Mr Tomlinson be reinstated to the position in which he was employed immediately before the dismissal with continuity of service.

[215] I consider it appropriate to make orders pursuant to s.391(1)(a) and s.391(2)(a) for reinstatement and continuity of employment.

[216] I have taken into account all of the circumstances of the case and also consider it appropriate to make an order pursuant to s.391(3). In determining the appropriate amount I have taken into account the matters required by s.391(4). To assist me I have had regard to the information provided to me after the conclusion of the hearing as agreed between the parties setting out Mr Tomlinson’s income before and after his termination.

[217] The Applicant was dismissed on 30 November 2016. His base salary was $94,410.00 and his gross annual roster allowance on termination was $23,150.04 equating to $117,560.04 per annum.

[218] Since termination Mr Tomlinson earned $800 as a truck driver for a removalist company, and worked from 10 January 2017 as a labourer working for labour hire company Work Pac engaged in work for the local council. 219 According to the email sent to chambers on 18 April 2017 he had earned $12,240 working for Work Pac by that time. Assuming Mr Tomlinson continues to earn the same amount of $27 per hour working Monday to Friday as he said in his witness statement I have assessed his weekly rate as $1,026 per week based on a 38 hour week. For the three weeks and three days between 18 April and the date of this decision I estimate he would have earned an additional amount of $3,693.60 in that time. Based on information provided I have estimated Mr Tomlinson’s earnings as totalling $16,733.60.

[219] The order I intend to issue will require that Mr Tomlinson is reinstated no later than Monday 29 May 2017. I estimate Mr Tomlinson is likely to earn a further $2,052 between the making of the order for reinstatement and the actual reinstatement, taking total earning since termination to $18,785.

[220] As Mr Tomlinson was dismissed on 30 November 2016 and the order for reinstatement will require he be reinstated by 29 May 2017 the amount he would have earned had he not been dismissed would have been just less than half of the combination of his annual base salary and annual roster allowance. I have estimated this to be a sum of approximately $58,000.

[221] The amount of $18,785 and $9,043.08 paid to him as four weeks’ pay in lieu of notice of termination need to be deducted from that amount equating to $30,171.92.

[222] I have also concluded that it is appropriate that there be a deduction from the amount ordered pursuant to s.391(3) on the basis of Mr Tomlinson’s admitted error, lapse in judgement and the resulting safety incident. I have decided that there should be a deduction of two months’ salary which I estimate to be $19,593.34 based on dividing $117,560.04 by 6. The deduction of two months’ pay is appropriate because despite finding the dismissal was unfair, there was a finding of a valid reason for termination and the deduction made is recognition of the need for deterrent against other breaches.

[223] On that basis I intend to order pursuant to s.391(3) that BHP pay Mr Tomlinson for lost remuneration likely to have been lost because of the dismissal, an amount of $10,578.60 gross taxed according to law.

COMMISSIONER

Appearances:

Mr A. Rich of Slater & Gordon Lawyers for the Applicant

Ms A. C Freeman of Counsel, instructed by Ashurst for the Respondent

Hearing details:

2017.

Brisbane:

March 27

 1   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [7].

 2   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [4].

 3   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 attachment AT 14 and 15.

 4   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 attachment AT 16.

 5   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [58].

 6   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [59], attachment AT 17.

 7   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [61].

 8   Transcript PN 512.

 9   Transcript PN 513-514.

 10   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [50].

 11   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [51], attachment AT 11.

 12   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [33].

 13   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [55].

 14   Transcript PN 446.

 15   Transcript PN 447.

 16   Transcript PN 450.

 17   Transcript PN 548.

 18   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [12].

 19   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at attachment SPW 4.

 20   Transcript PN 463.

 21   Transcript PN 466.

 22   Transcript PN 460.

 23   Transcript PN 483.

 24   Transcript PN 492.

 25   Transcript PN 501.

 26   Exhibit 9, Statement of Damien Matthew Cavill as amended and attachments, dated 3 March 2017 at [30].

 27   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [36].

 28   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [39].

 29   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [37].

 30   Transcript PN 899-915.

 31   Transcript PN 923-924.

 32   Transcript PN 925.

 33   Transcript PN 996.

 34   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [41].

 35   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [43].

 36   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [15].

 37   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [44].

 38   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [45]; Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [16].

 39   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [46].

 40   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at attachment SPW 6.

 41   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [14]-[15].

 42   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [16].

 43   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [22].

 44   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [23].

 45   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [24].

 46   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [25].

 47   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [26].

 48   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [27].

 49   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [28].

 50   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [29].

 51   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [30].

 52   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [31].

 53   Transcript PN 372.

 54   Transcript PN 523.

 55   Transcript PN 525.

 56   Transcript PN 231.

 57   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [32].

 58   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [33].

 59   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [36].

 60   Exhibit 9, Statement of Damien Matthew Cavill as amended and attachments, dated 3 March 2017 at [36].

 61   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [61].

 62   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [62].

 63   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [63].

 64   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at attachment AT 8.

 65   Transcript PN 403-410.

 66   Transcript PN 413-414.

 67   Transcript PN 417-418.

 68   Statement of Adam Guy dated 2 February 2017 at [12].

 69   Statement of Adam Guy dated 2 February 2017 at [14].

 70   Transcript PN 422.

 71   Transcript PN 425.

 72   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at attachment AT 9 p.2.

 73   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [87].

 74   Statement of Adam Guy dated 2 February 2017 at [18].

 75   Statement of Adam Guy dated 2 February 2017 at [19].

 76   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [35].

 77   Transcript PN 876-882.

 78   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [35].

 79   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at attachment SPW 1 p. 46.

 80   Exhibit 9, Statement of Damien Matthew Cavill as amended and attachments, dated 3 March 2017 at [15].

 81   Transcript PN 1042.

 82   Transcript PN 1044.

 83   Transcript PN 1046.

 84   Transcript PN 1052.

 85   Transcript PN 1060-1061.

 86   Transcript PN 1062.

 87   Transcript PN 1120-1123.

 88   Exhibit 9, Statement of Damien Matthew Cavill as amended and attachments, dated 3 March 2017 at [59].

 89   Exhibit 9, Statement of Damien Matthew Cavill as amended and attachments, dated 3 March 2017 at attachment DMC 1.

 90   Transcript PN 1082.

 91   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [8].

 92   Transcript PN 611-615.

 93   Exhibit 3, “Unloading Freight in a Controlled Environment” document.

 94   Transcript PN 70.

 95   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [10].

 96   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [13].

 97   Applicant’s Outline of Submissions at [30].

 98   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [14].

 99   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [18].

 100   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [3]-[4].

 101   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [11].

 102   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [27].

 103   Transcript PN 586-589.

 104   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [104](c).

 105   Transcript PN 666.

 106   Transcript PN 671.

 107   “Unloading Freight in a Controlled Environment” document.

 108   Transcript PN 685.

 109   Transcript PN 694.

 110   Transcript PN 700.

 111   Transcript PN 706-707.

 112   Transcript PN 738-741.

 113   Transcript PN 744.

 114   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [69](b).

 115   Transcript PN 761.

 116   Transcript PN 762.

 117   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at attachment SPW 13.

 118   Transcript PN 776.

 119   Transcript PN 780.

 120   Transcript PN 798.

 121   Transcript PN 1032.

 122   Transcript PN 1034.

 123   Transcript PN 1036-1037.

 124   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [19].

 125   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [21].

 126   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [23].

 127   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [104](b).

 128   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [10].

 129   Transcript PN 367.

 130   Transcript PN 369.

 131   Transcript PN 372.

 132   Transcript PN 374.

 133   Transcript PN 162.

 134   Transcript PN 199.

 135   Transcript PN 381.

 136   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [17].

 137   Transcript PN 712-717.

 138   Transcript PN 721-724.

 139   Transcript PN 733.

 140   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [69](a).

 141   Transcript PN 825.

 142   Transcript PN 327.

 143   Transcript PN 329.

 144   Transcript PN 331.

 145   Transcript PN 337.

 146   Transcript PN 382-383.

 147   Transcript PN 345.

 148   Transcript PN 394.

 149   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [19].

 150   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [5].

 151   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at attachment AT 4.

 152   Transcript PN 536.

 153   Transcript PN 127-129.

 154   Transcript PN 131.

 155   Transcript PN 618.

 156   Transcript PN 624-625.

 157   Transcript PN 631.

 158   Transcript PN 638-639.

 159   Transcript PN 645-648.

 160   Transcript PN 649.

 161   Transcript PN 655-658.

 162   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [11].

 163   Transcript PN 260.

 164   Transcript PN 276.

 165   Transcript PN 282.

 166   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [7]-[8].

 167   Exhibit 6, Statement of Adam Guy dated 2 February 2017 at [17].

 168   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [104](d).

 169   Transcript PN 813.

 170   Transcript PN 814.

 171   Exhibit 8, “Standard Work Instruction – December 2016” document.

 172   Transcript PN 821.

 173   Transcript PN 825.

 174   Transcript PN 827.

 175   Transcript PN 830.

 176   Exhibit 4, “Document One” – Photograph.

 177   Transcript PN 201-208.

 178   Transcript PN 228.

 179   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at attachment SPW 10.

 180   Transcript PN 250.

 181   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [10].

 182   Transcript PN 1248-1249; PN 1275-1276.

 183   Transcript PN 1283.

 184   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [91].

 185   Page 6.

 186   Pages 10-11.

 187   Transcript PN 854.

 188   Transcript PN 855.

 189   Transcript PN 866.

 190   Transcript PN 846-847.

 191   Transcript PN 851.

 192   [2011] FWAFB 4070.

 193   [2017] FWC 154.

 194   Transcript PN 1208.

 195   Crawford v BHP Pty Ltd [2017] FWC 154 at [322].

 196   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [22].

 197   Transcript PN 928.

 198   Transcript PN 931.

 199   Transcript PN 932.

 200   Transcript PN 933-935.

 201   Transcript PN 943.

 202   Exhibit 2, Reply Statement of Andrew James Tomlinson dated 22 March 2017 at [20].

 203   Transcript PN 957-961.

 204   Transcript PN 962-963.

 205   Transcript PN 965.

 206   Transcript PN 972.

 207   Transcript PN 974.

 208   Exhibit 9, Statement of Damien Matthew Cavill as amended and attachments, dated 3 March 2017 at [47].

 209   Transcript PN 1098-1105.

 210   Transcript PN 1110-1114.

 211   Transcript PN 946-951.

 212   Exhibit 7, Statement of Shannon Patricia Wells and attachments, dated 6 March 2017 at [70].

 213   [2012] FWA 7204.

 214   [2011] FWAFB 1166.

 215   [2016] FWCFB 1540.

 216   Transcript PN 1072.

 217   [1997] IRCA 15.

 218   Transcript PN 1235.

 219   Exhibit 1, Statement of Andrew James Tomlinson as amended dated 13 February 2017 at [70].

Printed by authority of the Commonwealth Government Printer

<Price code G, PR592880>