DECISION

Fair Work Act 2009
s.604—Appeal of decisions

Pilbara Iron Company (Services) Pty Ltd t/a Rio Tinto Iron Ore
v
Michael Ballam
(C2017/6782)

Appeal against decision [2017] FWC 6248 and Order PR598093 of Deputy President Binet at Perth on 28 November 2017 in matter number U2017/505 – arguable case of appellable error established – satisfied that public interest is enlivened – permission to appeal granted.

Introduction

[1] Mr Michael Ballam (the Respondent) was dismissed from his employment with Pilbara Iron Company (Services) Pty Ltd t/a Rio Tinto Iron Ore (Rio Tinto; the Appellant) on 28 December 2016 and subsequently lodged an application for an unfair dismissal remedy.

[2] The application was heard by Deputy President Binet on 12, 13 and 14 June 2017 and a decision was issued on 28 November 2017. 1 In the Decision the Deputy President determined that Mr Ballam’s dismissal was unfair and ordered reinstatement.2 The Appellant has applied for permission to appeal that decision.

[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

Background

[4] Mr Ballam started employment with Rio Tinto in April 2016 as a Maintainer. He was dismissed on 28 December 2016 for breaching the Iron Ore (WA) Isolation Regulations (Isolation Regs) and Life Saving Commitment 7 (Commitment 7), both of which were generally referred to, collectively, as the ‘Rules’. It was said that Mr Ballam had entered the ‘footprint’ of a Grader on three separate occasions when it was not isolated, or where the machine was ‘live’. 4 The ‘footprint’ is the area within the shadow cast by the Grader.

[5] In the Decision the Deputy President sets out the background to Mr Ballam’s dismissal (at [13]-[57]), noting (at [14]) that he was dismissed on the ground that he breached the Rules on three separate occasions.

[6] The Deputy President addressed the s.387 considerations at [65]-[96] finding that:

➣ Rio Tinto did not have a valid reason for dismissing Mr Ballam (at [91]) (s.387(a));

➣ Mr Ballam was notified of the reason for his dismissal (at [92]) (s.387(b));

➣ Rio Tinto did not unreasonably refuse to allow Mr Ballam to have a support person present to assist at discussions relating to the dismissal (at [92]) (s.387(d));

➣ Rio Tinto did not give Mr Ballam a proper opportunity to respond to the reasons for his dismissal (at [93]) (s.387(c));

➣ Rio Tinto had not failed to raise performance concerns with Mr Ballam (at [92]) (s.387(e)); and

➣ Rio Tinto is a ‘large, well-resourced, employer with access to highly skilled human resources and employment law advice’ (at [93]) (ss.387(f) and (g)).

[7] The Deputy President concluded that Mr Ballam’s dismissal was harsh, unjust and unreasonable:

‘[95] Based on the evidence above, I am satisfied that Mr Ballam’s dismissal was unjust because he was not responsible for all of the instances of misconduct on which the employer acted. I am of the view that his dismissal was unreasonable because the decision to dismiss him was based on inaccurate information. I am satisfied that, given Mr Ballam’s age, employment record, and employment prospects, his dismissal was harsh in its consequences for his personal and economic situation. I am also satisfied that his dismissal was disproportionate to the gravity of the misconduct.’

[8] The Deputy President went on to deal with the question of remedy (at [97]-[108]) and decided to make an order requiring Rio Tinto to reinstate Mr Ballam to the position in which he was employed immediately before his dismissal ‘on the condition that he undertake training in accordance with the recommendation of the Safety Investigation’ (see [104]).

[9] The Deputy President also made an order in respect of continuity of employment and continuous service, but did not make an order for lost remuneration (see [105]-[106]).

The Appeal

[10] We now turn to Rio Tinto’s grounds of appeal.

[11] The essence of Rio Tinto’s case is that the Deputy President found that Mr Ballam had entered the footprint of the Grader three times while the Grader was not isolated. Mr Dalton submitted, if Rio Tinto was right on that point the Deputy President’s finding that there was no valid reason for dismissal would be called into question, as would her overall conclusion at [95] of the Decision.

[12] For reasons which will become apparent we need to only deal with one of the grounds of appeal, Ground 1A, which states:

‘1A. Having found that the respondent had gone into the footprint of the grader three times, the Deputy President erred in treating this conduct as being a breach of safety rule on only one of those occasions. Specifically, the Deputy President proceeded from the erroneous premise that as long as the machine’s isolation switch was in the “off” position, the safety rule prohibiting a worker from going into the footprint of the machine while the machine was “live” did not apply, even where the machine was not properly isolated from its energy source…’

[13] Rio Tinto submits that it is in the public interest for the Commission to grant permission to appeal based upon two matters:

(i) employers have strict statutory obligations to maintain a safe workplace and to ensure safe systems of work, especially in the mining and resources industries, where significant hazards exist. There are both significant sanctions and criminal sanctions for breaches of these duties in certain circumstances. It follows, according to Rio Tinto, that the Commission should affirm that a high standard of conduct is expected of employees in relation to safety-related matters, and that employers can enforce these standards; and

(ii) the Deputy President has erred in relation to the statutory task entrusted to the Commission, being the application of the criterion set out in s.387 of the Act and that raises a matter of public importance.

[14] The short point advanced in Appeal Ground 1A is that the Deputy President made a ‘significant error of fact’ in finding that Mr Ballam only breached the Rules on one occasion. This error was said to arise because the Deputy President had an erroneous understanding of what was meant by ‘live’ in the application of the Rules.

[15] The error of fact is said to be significant because it had provided the basis for the Deputy President’s conclusion that there was no valid reason for the dismissal.

[16] We propose to first describe the Rules and the events of 1 December 2016 that led to Mr Ballam’s dismissal.

The Rules

[17] The safety Rules were ‘tightened up’ or ‘enhanced’ after the fatality of a worker on the Rio Tinto Paraburdoo mine site. 5 The worker killed was working on a drilling unit that was not properly isolated.6 In response to this tragic incident the Rio Tinto Managing Director of Pilbara Mines directed all Managers at the Pilbara mine sites to inform their teams of the fundamental principles of the Isolation Regs7 which relevantly included Commitment 7 which states:

‘I will ensure all energy sources have been isolated and my personal locks have been placed before working on any piece of equipment.’ 8

[18] In his evidence at first instance Mr Damon Fox, Otraco employee and colleague of Mr Ballam, outlined that the protocol for making sure that a piece of plant was not ‘live’ involved three steps:

a) shutting it down completely;
b) isolating the machine at the isolation point and attaching locks; and
c) testing for dead. 9

[19] The Appellant submitted that the switching of the isolation switch to the off position was part of the risk management procedure but that there was more to the process and more to the Rules. 10 In particular, the switch must be locked and it must be tagged with the personal tags or personal isolation locks of every worker who is working in or around that equipment. The reason for the additional layer in the procedure was said to be a recognition that part of the human condition is making errors of judgment and miscommunicating. It was submitted that there was always a risk that a machine that is not properly locked and not tagged can be reconnected to an energy source thereby exposing the workers to the risk. It was on that basis that the isolation tag, or personal isolation lock, procedure was submitted to be an important part of the safety rule.11

[20] The Rules provided that no one could be connected to, or be in the shadow (referred to as the footprint) of, a live machine unless they were:

(a) operating the machine for the cab, with no-one in the footprint; or
(b) outside the footprint; or
(c) working with a Job Hazard Assessment that had been signed off by the mine’s Registered Manager. 12

[21] In the Decision (at [69]) the Deputy President referred to the evidence of Mr James Simpson, Superintendent, that the revised Isolation Regs, Commitment 7 and safety procedures required that:

(a) no-one was to work on a live machine unless:

i. that work could be done from the cab; or
ii. no-one was in the machine’s footprint while the work was being done; or
iii. if the task required the machine to be running AND the work was covered by a JHA that had been signed-off by the Registered Manager; and

(b) no-one should be in the footprint of a live machine. 13

[22] It was clear on the evidence at first instance that Mr Ballam understood the relevant safety Rules 14 and had received training in relation to those Rules.15

[23] In the course of his evidence Mr Joel Arvidson (a ‘Maintainer’) explained that there were procedures for most of the tasks done. 16 Those procedures were referred to as Safe Working Practices (SWP) and in the absence of a SWP, a Job Hazard Assessment was done (JHA).17 A JHA allowed the worker to identify the risk and severity of those risks, and risk management measures.18 Mr Arvidson said that once completed the JHA had to be signed-off by everyone involved in doing the work and by a supervisor or leading hand.19

[24] For routine tasks or tasks that were done frequently, it was said that a ‘Take 5’ was completed. 20 A Take 5 was said to be like a JHA and could, in addition, be used when there was some change to the way that the job had been planned, or where there was a delay or interruption.21

[25] We now turn to the events that led to Mr Ballam’s dismissal.

Events on 1 December 2016

[26] On 1 December 2016 Mr Ballam was working a day shift that had commenced at 6 am.

[27] At some time after 4 pm, Mr Ballam and Mr Arvidson were given the task of putting a Grader on the apron in a bay of the workshop. Once on the apron they were to jack up the Grader and put stands under it. The purpose of this exercise was to allow Mr Fox to remove the tyres from the Grader.

[28] Before commencing the work of moving the Grader, neither Mr Ballam nor Mr Arvidson completed a JHA. However, Mr Arvidson completed a ‘Take 5’. Mr Ballam did not. Mr Ballam gave evidence that it was the first time that he had done this particular task. 22

[29] The Grader was moved onto the apron by Mr Arvidson. Mr Ballam directed him through the use of hand signals. Mr Ballam then used a forklift to fetch two stands that would be placed under the back of the Grader in order to stabilise it for the removal of the tyres.

[30] Mr Arvidson lowered the rippers to the ground which caused the rear body of the Grader to push off the ground. Mr Ballam reports having given Mr Arvidson a signal to stop. Mr Arvidson is said to have showed him his open hands (indicating that his hands were not placed on Grader’s operating controls) and Mr Ballam then pushed the right hand stand under the Grader using both hands and feet.

[31] The Appellant referred to various photographs and diagrams to assist us in understanding the nature of the Alleged Isolation Breaches. The photographs and diagrams are attached to this Decision at Attachments A, B and C. Attachment C includes reference to various positions on the Grader. Those positions are referred to when describing the Alleged Isolation Breaches.

[32] The first photograph, Attachment A, 23 shows the Grader. In the foreground of the photograph is the rear of the Grader and what the Deputy President refers to in her Decision as the rippers.24 There are two sets of tyres that can be seen on the right-hand of the Grader.25 These are the rear tyres of the Grader. There is another two sets of tyres on the left-hand side that were to be removed.26  If one looks toward the background of the photograph the blade of the Grader is protruding to the right of the second tyre.27 

[33] Counsel referred us to a diagram that was an imprint of the side view of the Grader labelled with various numbers, Attachment B. 28 At the left-hand side of the diagram is the rear of the Grader with the rippers. The cabin is in the middle of the Grader, just below the cabin to the right-hand side, is the blade, and to the far right-hand side are the front tyres.29 

[34] An overhead view of the Grader was provided in another diagram, Attachment C. 30 This diagram showed the various tyres and the tyre positions which were numbered 1, 2, 3, 4, and 5.31 

[35] Counsel explained that the back rear tyres that were to be removed were tyres 3 and 5. The area for the placement of the stands, which were the subject of the First Alleged Isolation Breach, are shown through the use of arrows and there are dark shaded points. The location can be seen between the rear tyres and the ripper. The isolation switch is a black dot inside tyre 3, between the tyre and the main body of the cabin, on the main body of the Grader. One has to go inside tyre 3, lean over into the space to flick the switch and to attach personal isolation locks. 32

[36] On the other side of the vehicle, inside tyre 4, there are more arrows. The Appellant submitted that he thought this was an attempt to depict where Mr Ballam was with his arm leaning over when he was adjusting the articulation pin, to which we will refer to shortly. 33

First Alleged Isolation Breach

[37] Mr Fox arrived at Bay 5 between 4pm and 4:30pm. On arrival he observed Mr Ballam in the Grader’s footprint under the ripper near tyre Position 6, which is best viewed at Attachment C. Mr Ballam was positioning a stand under the rear of the Grader while Mr Arvidson stood nearby. In the Decision the Deputy President referred to this as the First Alleged Isolation Breach. 34 In his witness statement Mr Fox said:

‘When I arrived, Michael was under the ripper with his feet near the tyre in Position 6 and his upper body angled toward the tyre in Position 5. It appeared to me that he was trying to position a stand on the rear left of the machine. Joel was standing at the grader’s right rear, near Michael’s feet. 35

[38] While the Deputy President stated that she was ‘satisfied that Mr Arvidson embellished his recollection of the Incident to paint Mr Ballam in a more unfavourable light’, 36 no such adverse comment was made regarding Mr Fox’s evidence.

Personal isolation locks

[39] Mr Fox proceeded to the isolation point near the tyre at Position 3 to attach his personal isolation lock and observed that the isolation switch was off, but neither Mr Ballam nor Mr Arvidson’s personal isolation locks were attached. Importantly, Mr Fox informed Mr Ballam that the Grader must be isolated before he positioned the stands under the Grader.

[40] In the course of his evidence at first instance, Mr Ballam conceded that he had not placed his personal isolation lock on the Grader and could not recall precisely where it was, whether it was on the dozer he had been working on, the tool trolley, or on himself. 37 However, Mr Ballam did take issue with whether he was required to have his personal isolation lock on the Grader.38 Mr Ballam gave evidence that he responded to Mr Fox along the lines of being able to do the task without a personal isolation lock, or that it was part of spotting.39

[41] After the discussion between Mr Ballam and Mr Fox, Messrs Ballam, Fox and Arvidson proceeded to place their personal isolation locks on the Grader. The requirement to put on a personal isolation lock is referred to in the Commitment 7. 40 Mr Arvidson gave evidence that Mr Fox considered it a big deal that Mr Ballam did not have his personal isolation lock on the Grader because Mr Ballam was under the machine at the time when he observed him.41

[42] It was clear that Mr Ballam was aware that there was a requirement to place a personal isolation lock or tag on a machine or plant when isolating it, in his evidence he said:

‘If you want to isolate the machine obviously you'll be the last person off the machine and most machines have stored energy, which is a pipe with accumulators and bits and pieces, and there is procedures and bits and pieces in place to release the energy from those accumulators.  Then you obviously hop off the machine, just go down to the isolator, turn the isolator off, put a master isolation lock on it and everyone would put a scissor clip on it and they will also put a tag on it.  You must have a tag on there.  You must have a master isolation officer tag.  It's a danger tag.’ 42

[43] Mr Simpson also gave evidence about personal isolation locks or tags:

‘MR HEATHCOTE:  I just have a couple of quick questions for you, Mr Simpson.  Can you explain for us the significance or the use of a scissor clip master lock personal lock?

MR SIMPSON: That's there for isolating all hazardous energies from a piece of equipment or machinery.

MR HEATHCOTE: What does a scissor clip do?

MR SIMPSON: The scissor clip is attached to the isolation switch and it's locked through the isolation switch and then from there there's a master lock which is placed on to that scissor clip prior to being - having personal isolation locks attached.’ 43

Second Alleged Isolation Breach

[44] Mr Fox decided that two additional stands were required and that an articulation lock pin (Pin) needed to be put in place.

[45] The Pin is stored on the chassis of the Grader near tyre Position 4. The articulation lock (Lock) consists of two metal brackets attached to the back and front frames of the Grader. When the Grader is centrally aligned, the Pin can be placed through holes in each of the three pieces of metal which make up the brackets. If the Grader is not centrally aligned, the Pin will drop through the first hole but not the second or third hole. The Pin is used to join the brackets and prevent any sideward movement of the Grader. 44

[46] Mr Fox removed the Pin from its storage position and put it in the Lock. However, the Pin only passed through the first hole, meaning that the Grader was not centrally aligned. 45

[47] Mr Fox went to the isolation point to de-isolate the Grader, and Mr Arvidson climbed into the cab to operate the Grader’s controls to align the Grader so the Pin would pass through all three holes.

[48] Mr Ballam states in his witness statement:

‘With The [sic] Otraco fitter Damien and with Joel now agreeing, they removed the artic locking pin from its location and stood the pin in the hole. The lock pin was put in place without me seeing and had lent over in the hole.

I have walked to the r/h side of the machine, noticed the locking pin was leaning over looked up at Joel and gave him a signal to stop. He gave me open hands. I stepped in, stood the pin up right [sic] and stepped out.’ 46

[49] In the Decision the Deputy President stated ‘Mr Ballam reached forwards between tyre Position 4 and the body of the Grader to adjust the Pin (Second Alleged Isolation Breach)’. 47 [Emphasis added] When giving his evidence Mr Ballam said:

‘You described hand signals to Joel.  Is that correct?---Yes.  I've looked up at Joel, basically with my hand, as well, and then I've just walked in, straightened that pin up and stepped straight back.’ 48

[50] Mr Fox and Mr Arvidson said that Mr Fox took his hands off the controls only after Mr Arvidson saw Mr Ballam step inside the Grader’s footprint. It is agreed by the witnesses that Mr Ballam was in the Grader’s footprint for a matter of seconds. 49 In his Incident Report prepared on the same day, Mr Ballam admitted that he had stepped inside the footprint of the Grader and that this was a ‘lapse in thought judgement’ for which he was ‘sorry’.50

Third Alleged Isolation Breach

[51] Having adjusted the Pin, Mr Ballam is said to have directed Mr Arvidson to steer the Grader to the right slightly 51 and that it was then he realised Mr Fox was standing behind him giving opposing directions, so he stopped giving directions. Mr Ballam said Mr Fox realised he was giving incorrect directions, and directed Mr Arvidson to steer the Grader in the direction originally proposed by Mr Ballam.52 

[52] In his witness statement, Mr Ballam states he observed the Pin slide fully into position and he gave Mr Arvidson the signal to stop. 53 In the decision the Deputy President stated ‘Mr Arvidson removed his hands from the controls of the Grader so Mr Ballam stepped forward and secured the Pin (Third Alleged Isolation Breach)’.54[Emphasis added]

[53] Mr Arvidson says that he took his hands off the controls only after he saw Mr Ballam step inside the Grader’s footprint. 55 This evidence was disputed. According to the notes of Mr Simpson that were taken during his interview with Mr Fox the day following the events of 1 December 2016, he had noted that Mr Arvidson had shut down the Grader before Mr Ballam stepped into the Footprint to secure the Pin.56 However, Ms Kylie Butson, HR Advisor (Ms Butson) is said to have reported that during the investigation interview held on 8 December 2016, Mr Ballam stated that the Grader was still live when he stepped into the footprint to secure the Pin.57

[54] The events were reported to the leading hand, Mr David Nilson, who subsequently reported them to Mr Simpson. Mr Simpson then reported the events to Mr Simon Mallard, Maintenance Manager Tom Price and Marandoo, informing him that a safety investigation and HR investigation would be conducted into the cause of the isolation breach. Mr Mallard endorsed these actions. Mr Ballam was instructed not to attend work while the investigations were conducted.

Disciplinary investigation

[55] On 2 December 2017, Mr Simpson interviewed Mr Ballam, Mr Nilson, Mr Arvidson and Mr Fox.

[56] On 8 December 2016, Mr Simpson and Ms Butson met with Mr Ballam and his support person. In the Decision the Deputy President finds (at [51]) that during this meeting Mr Ballam admitted:

a) he did not lock on when he and Mr Arvidson started working on the Grader;
b) Mr Fox had spoken to him about not being locked on;
c) he was aware that he was not supposed to be in the footprint of a live machine; and
d) he had entered the footprint of the Grader to the position the Pin. 58

[57] On 21 December 2016, Mr Simpson and Ms Butson met with Mr Ballam and his support person. Mr Simpson informed Mr Ballam that despite being aware of the isolation procedures, he had breached the Isolation Regs and Commitment 7 by stepping into the footprint on three separate occasions and as a consequence Rio Tinto was considering terminating his employment. Mr Ballam was asked to provide any mitigating circumstances for consideration. Mr Simpson’s evidence was that Mr Ballam subsequently changed his approach and began to deny that the breaches had occurred, producing diagrams and photographs. 59 In his evidence Mr Ballam says that having reviewed ‘Version 2.2, 2012’s Isolation Regulations’ he had concluded, based on the definition of ‘footprint’ in that document, that he was not actually in the footprint of the Grader.60

[58] On 22 December 2016, Mr Ballam asked for an extension of time in which to provide a response and obtain legal advice. Rio Tinto granted an extension until 23 December 2016 and on that same date informed Mr Ballam that in the absence of any further information Rio Tinto intended to finalise its decision. Mr Ballam was informed of his dismissal on 28 December 2016.

[59] We now turn to the Deputy President’s consideration of these issues and the basis for the Appellant’s contention that the Deputy President made a ‘significant error of fact’.

[60] It will be recalled that Mr Ballam was dismissed because he had breached the Rules on three separate occasions. The Deputy President rejected the proposition that Mr Ballam had ‘repeatedly or deliberately disregarded the Rules’ (at [73]). The Deputy President found that Mr Ballam had only breached the Rules on one occasion. At [74] the Deputy President made the following finding:

‘On the evidence before me, I am satisfied that Mr Ballam encroached into the Footprint of the Grader while the Grader was live when he adjusted the Pin [Second Alleged Isolation Breach]. I am not satisfied that the grader was live when Mr Ballam encroached into the Footprint of the Grader to secure the Pin [Third Alleged Isolation Breach] or when he positioned the stands [First Alleged Isolation Breach].’

[61] The meaning of the word ‘live’ was a central issue in the hearing at first instance. Before us the Appellant submitted that it was not well understood by everyone at the first instance hearing that ‘live’ did not simply mean that the plant, or in this case the Grader, was running. This was submitted to be an issue of significance because if ‘live’ simply meant that the machine was running then it would appear that the breach was limited to only one incident, namely the Second Alleged Isolation Breach.

[62] However, if ‘live’ were of broader import and captured not only the running of the Grader, but the isolation switch not being in the off position and the personal isolation locks not attached or on, then it would follow that the First Alleged Isolation Breach and the Third Alleged Isolation Breach would be breaches of the Rules.

[63] The Respondent submitted that where one sees the words ‘live’ and ‘isolated’ or ‘unisolated’ juxtaposed they actually have a different meaning, and that ‘live’ in those contexts refers to when the machine was running. 61 

[64] There was no dispute that the Grader remained ‘unisolated’ for the three procedures that took place within a short period of time but the Respondent submitted that to the extent that the breach could be characterised as a failure by Mr Ballam to isolate the relevant work area, it was appropriately characterised as a single breach that continued over a short period of time. 62

[65] It followed, according to the Respondent that if the Deputy President had fallen into error regarding her findings as to the number of safety breaches it was an error of fact that was not significant.
[66] It is common ground that the Grader was at all relevant times ‘unisolated’. 63 The issue in dispute is about whether the Grader was ‘live’ and if there was one breach as submitted by the Respondent, or three distinguishable breaches of the safety Rules as the Appellant contended.

[67] The significant error of fact contended by the Appellant is said to arise from the Deputy President’s misunderstanding of the term ‘live’ and ‘isolated’ or ‘unisolated’.

[68] It was submitted that the Deputy President had proceeded on the erroneous premise that as long as the machine’s isolation switch was in the ‘off’ position the safety rule prohibiting a worker from going into the footprint of the machine while the machine was ‘live’, did not apply. This was the case even where the machine was not properly isolated from its energy source.

[69] We are satisfied that the Deputy President erred in concluding that the Grader was only ‘live’ if the engine was running or the isolation switch was in the on position.

[70] The importance of the meaning attributed to the word ‘live’ was not lost on the Deputy President. It was evident from the cross examination of Mr Mallard that attempts were made to discern the meaning of ‘live’ and its relationship to the word ‘unisolated’:

‘DEPUTY PRESIDENT: But in your statement you also say that there’s a JHA required if they’re stepping into the footprint. It says, “to work on live machines or to be in the footprint”? – Yes, so I don’t believe they needed to work on a live machine in order to do the task.

Now you’ve said that but in your statement at 2.3 you say that:

The new rules oblige employee not to work on live machines or to be in their footprint unless they have a JHA.

? – That’s to be in their footprint while it’s live or un-isolated.

Well, that’s not what the sentence says.

MR HEATHCOTE: Well, it is.

THE DEPUTY PRESIDENT: It says:

The new rules oblige employees not to work on live machines or be in their footprint unless –

So the employees not work on live machine or be in their footprint. So what is your evidence, that it’s both together -- ? – Un-isolated, un-isolated inside the footprint.

It’s ok to be in the footprint as long as it’s not live? – Un-isolated is probably the preferred term. So to be in the footprint of the machine un-isolated they need to have a JHA signed off by the registered manager. Unless they’re – yes, operating the machine in the cabin – in the cab.

So that should be “and” rather than “or” – Yes, I should have said “in the footprint un-isolated unless”’  64

[71] The reference to ‘live’ when used by Mr Simpson and Mr Mallard was not a model of precision and this may have understandably led the Deputy President into error.

[72] Mr Mallard used the word ‘live’ in his written statement but in the paragraph that immediately followed that he also said that the whole purpose of the rule was to separate people from energised machines, and then gave evidence clarifying the scope of the rule in answer to the Deputy President's questioning above.

[73] Further, Attachment JS-1 of the Witness Statement of Mr Simpson sets out the importance of not working on equipment or plant that was not isolated, and went to some length to explain what is required to isolate, and states within the context of addressing isolation:

‘It is a fundamental principle that repair work is not undertaken on live equipment. There is no grey here. You do not work on live equipment. FULLSTOP – it cannot happen. It is a mandatory requirement to isolate any equipment before conducting work on it.’ 65

[74] Mr Fox’s statement at paragraph [4.10] states that the protocol for making sure that a piece of plant wasn’t ‘live’ involved three steps:

(a) shutting it down completely;
(b) isolating the machine at the isolation point and attaching locks; and
(c) testing for dead. 66

[75] The evidence of Mr Arvidson is telling when questioned about the aforementioned protocol:

‘The protocol for making sure a piece of plant wasn’t live involved three steps. Shutting the machine down completely; isolating the machine at the isolation point and attaching locks and testing for dead.

Right? Now ---

MR HEATHCOTE: Tim, where are you on ---

MR KUCERA: … I was reading from a different statement from Mr Fox. But do you agree that they’re the steps that you need to follow when you isolate a machine? ---Yes.’

[76] It is not the case that ‘live’ simply denotes that an engine was running or the isolation switch was in the on position. When one considers all of the evidence it is apparent that the Rules are not limited in such a manner.

[77] There was uncontroversial evidence from Mr Fox, Mr Arvidson and Mr Mallard that the Rules encompassed the regulation of unisolated machines, separating people from machines that were energised or where they could be energised. In this respect the Deputy President erred in her understanding of the meaning of the term ‘live’ in this context.

First Alleged Isolation Breach

[78] As to the First Alleged Isolation Breach the Deputy President accepted the evidence of Mr Fox 67 that Mr Ballam was within the Grader’s footprint positioning a stand under the rear aspect. However, the Deputy President was not satisfied that the Grader was ‘live’ when Mr Ballam positioned the stands.68

[79] The evidence of Mr Fox and Mr Ballam was that at the time Mr Ballam positioned the stands within the footprint of the Grader his personal isolation lock was not on it. 69 Mr Ballam’s personal isolation lock was on the machine he had last worked on. The Deputy President found:

‘Given Mr Ballam’s evidence that he positioned the stands with his hands and feet, and the evidence of Mr Fox that Mr Ballam was within the Footprint of the Grader when he arrived at the worksite, I am satisfied that Mr Ballam’s hands and/or feet encroached into the Footprint of the Grader when positioning the stands. I accept the evidence of Mr Fox that the Grader’s isolation switch was off at the time and the Grader was not live.’ 70 [Emphasis added]

[80] At footnote 65 of the Decision the Deputy President said:

‘Mr Ballam gave evidence that he pushed the stands under the Grader with his arms and feet. Mr Fox and Mr Arvidson gave evidence that Mr Ballam encroached into the Footprint whilst doing so. While there were a number of discrepancies in Mr Arvidson’s evidence, I found Mr Fox to be a consistent and credible witness. However, it is agreed that Mr Ballam’s tag was not attached to the isolation point at the relevant time.’ [Emphasis added]

[81] Although the Deputy President had accepted that Mr Ballam’s tag or personal isolation lock was not attached to the isolation point at the relevant time she nevertheless found that the Grader was not ‘live’. 71 Contrary to the Deputy President’s conclusion a finding that the personal isolation locks were not in place must necessarily have meant that Mr Ballam had breached the Rules. However, the Deputy President did not make such a finding and as such we are satisfied that she erred in that respect.

Second Alleged Isolation Breach

[82] In the Second Alleged Isolation Breach, the Deputy President stated that Mr Ballam had conceded during the course of the investigation, and at the hearing that his limbs encroached into the footprint of the Grader to adjust the Pin. In his witness statement Mr Ballam said:

‘I have walked to the r/h side of the machine, noticed the lock pin was leaning over looked up at Joel and gave him a signal to stop. He gave me open hands. I stepped in, stood the pin up right and stepped out’.’ 72

[83] Following the events of 1 December 2016 Mr Ballam completed an Incident Statement Form which states:

‘Ive [sic] have used hand signals to tell operator not to move machine. I have had a lapse in thought judgement [sic] to step inside the footprint to make sure pin was free as it was cocked over. It [sic] the pin was free so moved back outside the footprint and we proceeded to give hand signals to steer to left about 10mm. The pin dropped in. I have made a poor judgement [sic], lapse of thinking. Sorry for this unfortunate incident’ 73

[84] Consequently, the Deputy President was satisfied that Mr Ballam encroached into the footprint of the Grader whilst it was live when he adjusted the Pin.

Third Alleged Isolation Breach

[85] In relation to the Third Alleged Isolation Breach the Deputy President was satisfied that Mr Ballam encroached the footprint of the Grader when securing the Pin. However, she found that at the relevant time the Grader was not live. The Deputy President stated:

‘…Mr Simpson’s notes of his interview with Mr Fox the day after the incident indicate the Grader was not live when Mr Ballam encroached the Footprint to secure the Pin. Mr Simpson also confirmed at the Hearing that it was his understanding that the Grader was shut down when Mr Ballam entered the Footprint to secure the Pin’ 74

[86] In his evidence Mr Ballam stated:

‘I proceeded to give Joel directions to steer the machine to the right slightly. While this is taking place the Otraco fitter was standing directly behind me. The pin has now slid 75% of the way into the locating holes.

The Otraco fitter has now said we need to go back the other way slightly for it to locate the last hole, which I could see was going to be the wrong way. I did not interfere with Otraco taking over the directions of this, as I know you don’t have two people giving directions.

We carried on and then realized it had to go the way we were previously going and the pin slid in perfect. I then looked up at Joel and gave him a signal to stop. He gave me open hands. I stepped in, turned the pin and stepped out.

Machine was now isolated and locked out. I and the Otraco fitter are discussing our stand issues…’ 75

[87] The Deputy President concluded that the Rules were not breached given that the Grader was ‘shut down’. However, as we have mentioned, the relevant Rules do not simply contemplate that the plant or equipment must be shut down to be considered not ‘live’ or ‘isolated’. The issue in this case was whether the Grader had been shut down completely, namely whether it had been isolated at the isolation point and personal isolation locks attached and whether it had been tested for ‘dead’. The evidence in respect of this issue is not entirely clear and it is not necessary for us to express a view given our conclusion is to the errors in the Decision.

[88] We are satisfied that the Deputy President made a significant error of fact in her consideration of the alleged isolation breaches, in particular in finding (at [74]) that the Grader was not ‘live’ when Mr Ballam positioned the stands (the First Alleged Isolation Breach).

[89] We do not agree with the Respondent’s submission that the Isolation Breaches should be considered as one continuous act.

[90] There were at least two distinct occasions when Mr Ballam breached the Rules. The absence of his personal isolation lock and encroaching on the footprint of a ‘live’ Grader to adjust the Pin. The actions differed in their particular circumstances and in the decisions that Mr Ballam made.

[91] Mr Fox observed Mr Ballam in the Grader’s footprint under the ripper near tyre Position 6. Mr Fox reports that at that time Mr Ballam’s personal isolation lock was not on the Grader. Mr Fox alerted Mr Ballam that the Grader must be isolated before Mr Ballam positioned the stands under the Grader. Mr Fox conveyed to Mr Ballam that his conduct fell short of that required by the Rules, he informed Mr Arvidson and Mr Ballam that personal isolation locks were required, and Mr Ballam retrieved the personal isolation locks. This event is distinguishable to that which subsequently occurred when Mr Ballam stepped into the footprint of the Grader whilst it was ‘live’.

[92] The significant error of fact is directly relevant to the Deputy President’s finding that there was not a valid reason for Mr Ballam’s dismissal. That finding was made on the basis of the erroneous conclusion that there had been only one breach of the Rules.

Conclusion

[93] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, as we have mentioned, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).

[94] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 76 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[95] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 77 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 78

[96] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 79 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.

[97] On the basis of the significant error fact set out above we are satisfied the Decision manifests an injustice which enlivens the public interest.

[98] We are satisfied it is in the public interest to grant permission to appeal. Accordingly, we grant permission to appeal, uphold the appeal and quash the Deputy President’s Decision and Order. The matter will be remitted to Deputy President Binet for rehearing.

PRESIDENT

Appearances:

Mr Dalton, of Counsel and Mr G Georgi for the Appellant.

Mr Crawshaw, of Senior Counsel and Mr T Kucera for the Respondent.

Hearing details:

2018

Melbourne:

9 January

Printed by authority of the Commonwealth Government Printer

<PR601458>

 1   [2017] FWC 6248.

 2   PR598093.

 3   This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   [2017] FWC 6248 at [70]-[74]; Appeal Book p. 567.

 5   Exhibit R7 at [2.3], Appeal Book p.489; Exhibit R8 at [2.5], Appeal Book p.491.

 6   Ibid.

 7   Exhibit R8 at [2.7] and Attachment JS-1; Appeal Book pp.496-503.

 8   Transcript of proceedings at first instance, 12 June 2017 at [1202]; Appeal Book p.141.

 9   Exhibit R2 at [4.10]; Appeal Book p.450.

 10   Transcript of proceedings, 9 January 2018 at [61].

 11   Ibid.

 12   Exhibit R2 at [4.7]; Appeal Book p.449.

 13   Exhibit R8 at [2].

 14   Transcript of proceedings at first instance, 12 June 2017 at [1213]-[1214]; Appeal Book p.141.

 15   [2017] FWC 6248 at [78]-[79]; Transcript of proceedings at first instance, 12 June 2017 at [591]-[607]; Exhibit B1 at [2.1]-[2.3].

 16   Exhibit R4 at [4.5]; Appeal Book p.462.

 17   Ibid at [4.5] and [4.6].

 18   Ibid [4.7].

 19   Ibid [4.8].

 20   Ibid [4.9].

 21   Ibid.

 22   Transcript of proceedings at first instance, 12 June 2017 at [937]; Appeal Book p.120.

 23   Exhibit A4.

 24   Transcript of proceedings, 9 January 2018 at [73].

 25   Ibid at [74].

 26   Ibid.

 27   Ibid.

 28   Exhibit A9.

 29   Transcript of proceedings, 9 January 2018 at [78].

 30   Exhibit A10.

 31   Transcript of proceedings, 9 January 2018 at [79].

 32   Ibid.

 33   Ibid at [80].

 34   [2017] FWC 6248 at [20].

 35   Exhibit R2 at [5.8]; Appeal Book p.450.

 36   [2017] FWC 6248 at [89].

 37   Transcript of proceedings at first instance, 12 June 2017 at [245] and [1031]; Appeal Book p. 52 and 127.

 38   Ibid at [1036]; Appeal Book p.127.

 39   Ibid at [240]; Appeal Book p.52.

 40   Ibid at [1202]; Appeal Book p.141.

 41   Transcript of proceedings at first instance, 13 June 2017 at [2120]; Appeal Book p.220.

 42   Ibid at [2462]; Appeal Book p.251.

 43   Ibid at [2799]-[2800]; Appeal Book p.281.

 44   Exhibit B1 at [3]; Exhibit R2 at [5].

 45   Exhibit A2 at [19]; Exhibit R2 at [5].

 46   Exhibit A2 at [19]-[20].

 47   [2017] FWC 6248 at [27].

 48   Transcript of proceedings at first instance, 12 June 2017 at [301]; Appeal Book p.57.

 49   Exhibit A2 at [20]; Exhibit R4 at Attachment JA-1; Transcript of proceedings at first instance, 12 June 2017 at [1592].

 50   Exhibit R9 at Attachment KMB-3.

 51   Exhibit A2 at [21]; Appeal Book p.386.

 52   Ibid at [21]-[23].

 53   Ibid at [23].

 54   [2017] FWC 6248 at [30].

 55   Exhibit R4 at Attachment JA-1.

 56   Ibid.

 57   Exhibit R9 at Attachment KMB-9 [7].

 58   Exhibit R8 at [4.16]; Exhibit R9 at [3.5].

 59   Exhibit R8 at [4.20].

 60   Transcript of proceedings at first instance, 12 June 2017 at [803]; Appeal Book p.102.

 61   Transcript of proceedings, 9 January 2018 at [150].

 62   Ibid.

 63   Respondent’s Outline of Submission, 29 December 2017 at [14].

 64   Transcript of proceedings at first instance, 13 June 2017 at [2680]-[2690]; Appeal Book pp. 271-272.

 65   Exhibit R8 at [2.7] Attachment JS-1.

 66   Exhibit R2; Transcript of proceedings at first instance, 13 June 2017 at [2020]-[2024]; Appeal Book p.212.

 67   Exhibit R2 at [5.8].

 68   [2017] FWC 6248 at [74].

 69   Transcript of proceedings at first instance, 12 June 2017 at [1031]; Appeal Book p.127.

 70   [2017] FWC 6248 at [70].

 71   Ibid.

 72   Exhibit A2 at [20].

 73   Exhibit R9 Attachment KMB-3.

 74   [2017] FWC 6248 at [71].

 75   Exhibit A2 at [21]-[24]; Appeal Book p.386.

 76   (2011) 192 FCR 78 at [43].

 77   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].

 78   (2010) 197 IR 266 at [27].

 79   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

Attachment A

Attachment B

Attachment C