DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Naresh Connolly-Manga
v
Global Mining Services Pty Ltd
(U2018/9095)

Application for relief from unfair dismissal – posing for photograph on mining equipment – Facebook post – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Naresh Connolly-Manga is an experienced underground coal mine worker who commenced employment with Global Mining Services Pty Ltd (GMS) on 6 February 2018. His duties involved performing secondary support work at Whitehaven Coal Limited’s (Whitehaven) underground coal mine in Narrabri (Mine). On 8 August 2018, Mr Connolly-Manga stood on top of an Eimco load, haul, dump (LHD) machine 1 (Loader) and posed for a photograph, which he later posted on Facebook because he thought “it’d look just as cool as hell”. GMS did not share that opinion. On 15 August 2018, GMS dismissed Mr Connolly-Manga as a result of his conduct in posing for the photograph and the risks to which that conduct gave rise. Mr Connolly-Manga alleges that his dismissal was harsh, unjust and unreasonable. GMS denies those allegations and contends that its dismissal of Mr Connolly-Manga was not in any way unfair.

[2] I decided that it was appropriate to hold a hearing rather than a determinative conference in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a hearing would be the most effective and efficient way to resolve this matter. The hearing was held in Newcastle on 30 November 2018. Mr Connolly-Manga gave evidence at the hearing. GMS adduced evidence from Mr Murray Tighe, Human Resources Manager, Mr Tony Vitnell, Chief Executive Officer, and Mr Tony Kessell, Project Manager for GMS’s secondary support works at the Mine.

Initial matters for consideration

[3] There is no dispute between the parties, and I find on the evidence, that the initial matters set out in section 396 of the Fair Work Act 2009 (Cth) (Act) are, insofar as they are relevant, satisfied in this case.

Was the dismissal harsh, unjust or unreasonable?

[4] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Connolly-Manga’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s.387(a))

Legal principles

[5] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 2 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4

[6] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 5 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁶

[7] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁷ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 8 In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.9

[8] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows:  10

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

Relevant context

[9] Mr Connolly-Manga was employed by GMS pursuant to a written contract of employment signed by him on 4 February 2018 (Contract). The Contract required Mr Connolly-Manga to comply with:

(a) lawful and reasonable directions given to him by GMS;

(b) any health and safety policies or procedures GMS may have in place; and

(c) any induction process and any health and safety policies or procedures at any site he was required to visit in the course of his duties with GMS.

[10] On 4 February 2018, Mr Connolly-Manga also signed a Health and Safety Declaration (Declaration). In signing the Declaration, Mr Connolly-Manga undertook to always perform work in a safe manner, follow safety directions and apply his skills in a safe and proper manner at all times to the standard of his training. 11

[11] On 6 and 7 February 2018, Mr Connolly-Manga participated in an induction process. Mr Connolly-Manga was inducted and trained by GMS’s staff on policies and procedures that applied to his employment, including the GMS Health Safety and Environment Policy (Policy). The Policy provides that working safely is a condition of employment, and that employees must work safely at all times to protect themselves and those working with them. 12

[12] As part of this induction process, Mr Connolly-Manga also participated in training organised by Whitehaven, which included training on Whitehaven’s “Safehaven Rules” (Rules). Rule 2 of the Rules relates to the isolation of machinery and states: 13

“Always confirm that equipment is correctly isolated and de-energised before commencing work... Isolated means disconnected from all possible sources of energy… De-energised means not connected to a source of energy or turned off and void of hazardous energies by way of disconnecting a power source, venting pressure, removing gravitational energies etc.”

[13] Mr Connolly-Manga commenced working at the Mine on 8 February 2018.

[14] On 26 May 2018, Mr Connolly-Manga was assessed as having fulfilled the training requirements to operate a Loader. Part of this process included Mr Connolly-Manga being trained and assessed in the Isolation Procedure for LS 170 & LS 190 LHDs (Procedure). 14

[15] In early July 2018, GMS was advised by Whitehaven that there had been a number of recent injuries sustained by GMS’s employees at the Mine. Whitehaven directed GMS to take steps to prevent these incidents from occurring, including the development of a safety action plan to address such incidents. GMS developed a safety action plan which outlined to Whitehaven the steps that it would take to address its safety performance at the Mine and make sure those injuries would be reduced. One of these steps was to organise training for GMS employees working at the Mine on risk assessment and hazard awareness. 15

[16] On 24 July 2018, Mr Connolly-Manga participated in the training on risk assessment and hazard awareness. 16 At that training, GMS told Mr Connolly-Manga that there had been a number of recent injuries at the Mine and emphasised to him the need to follow the rules and to reduce risk taking behaviour at the Mine.17 The message of the training was to refocus the actions and behaviours of GMS employees at the Mine, in order to improve safety outcomes.18 The training identified risks from behaviour (such as distraction, attention, focus, slips, lapses, mistakes and violations) as being capable of being managed by employees.19

[17] On 8 August 2018, Mr Connolly-Manga was directed by GMS to stay on the surface of the Mine for the duration of his shift due to poor conditions underground. He was given alternate duties to clean up the surface of the Mine. 20

[18] It is not disputed, and I am satisfied on the evidence and having regard to the Briginshaw standard, that during his shift on 8 August 2018 at the Mine, Mr Connolly-Manga:

(a) climbed on top of a Loader that had not been isolated and had its engine running; and

(b) posed for a photograph while standing on top of the Loader (approximately 1.6 metres above the ground) holding a metal roof bolt in his right hand and raising his leg so that his foot was resting on the Loader’s cab.

[19] In relation to the above conduct, Mr Connolly-Manga gave the following evidence: 21

“… at the time the photo was taken everyone in my crew was basically standing there doing not a lot. We’d gone and picked up rubbish, I was moving equipment around. It didn’t necessarily need to be moved, it was just a matter of looking busy at the time of day. And the instruction that we had been given on the day was more a measure to make us look busy as well, as opposed to being on a client’s site doing nothing.” 22

[20] Mr Connolly-Manga gave evidence that he did not consider posing for the photograph on top of the Loader as unsafe for the following reasons: 23

(a) in the performance of his duties he was sometimes required to operate a Loader;

(b) he has witnessed other mineworkers operate Loaders;

(c) he has had experience with Loaders in his previous employment;

(d) when checking the Loader to see if it had enough coolant, or filling the Loader with coolant, it was necessary to climb on top of the Loader;

(e) the top of the Loader provided a safe and stable platform and as such, the Loader would also be used as an elevated working platform; and

(f) on any given day at the Mine, he might witness five or more colleagues using the Loader as an elevated working platform in the performance of their duties, generally with tools, notwithstanding the fact that the surfaces of the Mine were generally uneven and that visibility when working underground was significantly poorer than equivalent work on the surface during daylight hours.

[21] Mr Connolly-Manga gave evidence that at the time he posed for the photograph on 8 August 2018, the Loader was on an even surface, it was daylight and there were no obstacles or walls nearby the Loader. 24 He also gave evidence that the person taking the photograph was approximately 8 metres from the Loader at the time that the photograph was taken and there was no one else in the vicinity of the Loader.25

[22] In cross-examination, Mr Connolly-Manga gave evidence that there was a “slim” risk that he could have fallen from the Loader, 26 before refusing to accept that there was any risk that he could have fallen.27 He agreed that his conduct was “out of line”,28 however, he did not accept that he breached a policy or procedure.

Alleged breaches of employment expectations and findings

[23] GMS submits that Mr Connolly-Manga breached the expectations that applied to his employment by way of his conduct on 8 August 2018, as reflected in:

(a) the Declaration;

(b) the Policy;

(c) the Rules;

(d) the Procedure; and

(e) his common law and contractual obligations to comply with GMS’s lawful and reasonable directions (including to perform work safely) and similarly comply with the applicable policies and procedures.

[24] I accept that Mr Connolly-Manga had experience operating Loaders, and at the time he posed for the photograph on 8 August 2018 the Loader was on an even surface, it was daylight and there were no obstacles or walls nearby the Loader. However, I reject Mr Connolly-Manga’s submission that he did not engage in any conduct that could cause risk to his own safety on 8 August 2018. In my opinion, there was a real risk that Mr Connolly-Manga could have fallen from the Loader on 8 August 2018. The three following aspects of Mr Connolly-Manga’s conduct support such a finding:

(a) Mr Connolly-Manga’s failure to isolate the Loader. I accept Mr Kessell’s evidence that because the Loader was not isolated, there was a risk that the Loader could have moved. At any time machinery is not isolated, there is the risk it may move unexpectedly. For example, as Mr Kessell explained, another employee could have got into the Loader and operated it at the time that Mr Connolly-Manga was standing on the top of the Loader;

(b) the unbalanced position in which Mr Connolly-Manga posed for the photo. I accept Mr Kessell’s evidence that Mr Connolly-Manga only had two points of contact with the Loader, and that he had one leg raised and not carrying equal weight to the other. 29 This is clearly demonstrated by the photograph Mr Connolly-Manga posted on Facebook.30 By standing on top of the Loader in such a position, Mr Connolly-Manga put himself at risk of losing his balance and falling from the top of the Loader; and

(c) Mr Connolly-Manga was holding a roof bolt while posing for the photograph on top of the Loader. I accept Mr Kessell’s evidence that Mr Connolly-Manga could have fallen onto the roof bolt or been hit by it (in the process of falling) and that if he had lost grip of the roof bolt, he could have overbalanced and fallen in an attempt to regain his grip or balance. 31

[25] Given that Mr Connolly-Manga was standing on top of the Loader at a height of approximately 1.6 metres and accepting that the Mine is an inherently dangerous environment, 32 I am satisfied that the risk posed to Mr Connolly-Manga on 8 August 2018 was a serious one. If he had fallen from the Loader, there was a real likelihood that he would have seriously injured himself.

[26] Based on the above findings, I am satisfied that on 8 August 2018 Mr Connolly-Manga breached:

(a) the Declaration by failing to perform work in a safe manner and apply his skills in a safe and proper manner at all times to the standard of his training;

(b) the Policy by failing to work safely at all times to protect himself; and

(c) the Contract by failing to comply with the Policy.

[27] Although it cannot be established on the evidence that Mr Connolly-Manga presented a risk to any other person on 8 August 2018, I am satisfied that these breaches were substantial breaches due to the seriousness of the risk Mr Connolly-Manga posed to himself.

[28] I am also satisfied that Mr Connolly-Manga breached rule 2 of the Rules and the Procedure by failing to isolate the Loader before climbing on top of it to pose for the photograph. I set out below my reasons for reaching these conclusions.

[29] Mr Connolly-Manga submits that the Procedure did not apply to him at the time he posed for the photograph. I reject that submission for the following reasons:

(a) Mr Connolly-Manga was trained and assessed as competent to operate a Loader at the Mine. As part of that training and assessment, Mr Connolly-Manga was trained in the Procedure. 33 I accept Mr Kessell’s evidence that although the Procedure is stated to apply to work performed on Sandvik LDHs, it is also used to provide the isolation requirements for Eimco LHDs at the Mine.34 Accordingly, the Procedure applied to the Loader on which Mr Connolly-Manga posed for the photograph on 8 August 2018;

(b) the purpose of the Procedure is to “provide instruction for safe isolation of the … LHDs for maintenance and repair purposes at the Mine”. The scope of the Procedure is described as “the procedure for safely isolating … LHD’s for but not limited to the following tasks-

1. All maintenance and servicing requirements.

2. Any work required in articulation areas.

3. All work required where access under the LHD is required.

IF THE TASK TO BE PERFORMED IS OUTSIDE THIS SCOPE, DO NOT PROCEED” (underlining emphasis added)

(c) Mr Connolly-Manga was not undertaking maintenance, servicing or repair work on the Loader at the time he climbed on top of it to pose for the photograph, nor was he working in an articulation area or where access under the Loader was required. However, the scope of the Procedure is not limited to these particular activities. So much is clear from the reference in the scope of the Procedure to it applying to “the procedure for safely isolating a … LHD for but not limited to the following tasks …” Furthermore, the scope also states that “if the task to be performed is outside this scope, do not proceed.” Thus, to the extent that a task is to be performed on a Loader which is outside the scope of the Procedure, the Procedure makes clear that employees should not proceed with it;

(d) the purpose of the Procedure is to ensure that Loaders are isolated whenever there is a risk that a worker could be injured by an unplanned movement of the Loader. Such risks arise during maintenance and repair work. They also arise when workers climb on top of, or work in close proximity to, the Loader. Having regard to this purpose, the broad scope of the Procedure in its application to “safely isolating a … LHD” and the clear warning in the Procedure not to proceed if the task to be performed is outside the scope of the Procedure, I am satisfied that a reasonable person who had been trained in the Procedure at the Mine would understand that (a) it applied to activities such as climbing on top of the Loader in order to pose for a photograph and (b) it required the Loader to be isolated before climbing on top of it;

(e) Mr Connolly-Manga contends that the Loader is used as an elevated work platform without being isolated, with the result that it was acceptable for him to stand on top of the Loader (without it being isolated) to pose for a photograph. Mr Kessell responded to this issue in his witness statement by saying that although “the ... [Loader] is used as an elevated work platform from time to time... work would only be performed on top of the... [Loader] when it was not running and properly isolated”. 35 It was not clear from Mr Kessell’s witness statement whether he was referring to a circumstance in which a Loader was used as an elevated work platform by attaching a man basket to it or a circumstance in which a worker climbed on top of a Loader to reach work at height.36 Mr Kessell clarified this issue in his oral evidence. In particular, Mr Kessell gave oral evidence that, in the latter scenario, the requirement is for the Loader to be isolated and to his knowledge the Loader is isolated when such work is undertaken at the Mine.37 By contrast, in the former scenario, Mr Kesell explained in his oral evidence that the Loader does not have to be isolated because there must be someone operating the Loader for the man basket to be used,38 and the man basket has a solid platform and handrail around it, so the possibility of falling is eliminated.39 I accept the oral evidence given by Mr Kessell in relation to the two ways in which the Loader is used as an elevated work platform, and prefer that evidence to Mr Connolly-Manga’s evidence on the same topics. Mr Kessell’s evidence is inherently plausible in circumstances where employees are working at heights and the purpose of isolation is to prevent the unplanned movement of machinery. In addition, Mr Kessell has considerable experience in the mining industry, he has operational oversight of GMS’s secondary support work at the Mine, which includes managing the work performed by GMS’s employees, and his oral evidence in relation to these matters was consistent.

[30] Mr Connolly-Manga submits that rule 2 of the Rules did not apply to him at the time he posed for the photograph. I reject that submission. The purpose of the Rules is stated “to provide practical guidance for implementing a set of Health and Safety rules at Whitehaven Coal (WHC) operations with the aim of preventing critical risk Health and Safety events”. The Rules apply “to all WHC controlled areas, operations and workers”. Rule 2 concerns isolation of energy. Rule 2 imposes an obligation to “always confirm that equipment is correctly isolated and de-energised before commencing work”. The clear purpose of rule 2, like the Procedure, is to ensure that equipment is isolated whenever there is a risk that a worker could be injured by an unplanned movement of the equipment. Mr Connolly-Manga contends that he was not “commencing work” on the Loader at the time he climbed on top of it to pose for a photograph. In my view, this construction of rule 2 is too narrow. Having regard to the purpose and scope of the Rules generally and rule 2 in particular, I am satisfied that a reasonable person would construe the expression “before commencing work” in rule 2 to mean before commencing any activity on or in close proximity to the equipment in question. To accept Mr Connolly-Manga’s contention to the effect that skylarking at work is not “work” would largely defeat the purpose of rule 2. I am therefore satisfied that rule 2 applied to Mr Connolly-Manga at the time he climbed on top of the Loader and posed for the photograph. Mr Connolly-Manga breached the rule by failing to isolate the Loader before climbing on to it.

[31] In failing to follow the Procedure and the Rules by not isolating the Loader, Mr Connolly-Manga also breached the Declaration, which required him to follow safety directions (such as those contained in the Rules and Procedure).

[32] Finally, I am satisfied that Mr Connolly-Manga breached his common law and contractual obligation to comply with GMS’s lawful and reasonable directions. On 8 August 2018, Mr Connolly-Manga was clearly not performing the work of cleaning up the pit top, which he had been directed to do, 40 when he climbed on to the Loader and posed for the photograph. In cross-examination, Mr Connolly-Manga accepted that there no reason for him to be on top of the Loader and gave evidence that “it was purely a photo opportunity.”41

Alleged risk to GMS’s reputation, viability and profitability and findings

[33] GMS submits that Mr Connolly-Manga’s conduct on 8 August 2018 had the real likelihood of damaging its commercial relationship with Whitehaven and, in circumstances where Whitehaven is a key client of GMS, this put GMS’s reputation, viability and profitability at risk.

[34] I accept Mr Vitnell’s evidence that Whitehaven is GMS’s largest client and that contracts with Whitehaven account for approximately 90 percent of GMS’s revenue in a given year. 42 I also accept Mr Vitnell’s evidence that, in early June 2018, he had a conversation with a Whitehaven superintendent, Mr Mick Morton, to the following effect:43

Mr Morton: Troy, there have been a range of injuries occurring with your guys at the mine. You need to start doing something about this. There have been five injuries in the past three weeks with the longwall move.

Mr Vitnell: Mick I am aware of and understand the importance of this, and will get on to it. Thanks for drawing it to my attention again.

Mr Morton: We need to see a lot from you. I am talking safety days, toolbox talks, briefings everything. This is serious. We also need you to confirm in writing the steps you are going to take to prevent these injuries occurring. We need you to develop a safety action plan to address these injuries.

[35] I accept Mr Vitnell’s evidence that it was in response to this conversation that GMS developed a safety action plan and organised the hazard awareness and risk management training in which Mr Connolly-Manga participated on 24 July 2018.

[36] In cross-examination, Mr Connolly-Manga accepted that it would be reasonable to assume that Whitehaven would be concerned if they saw the photograph and that this could cause problems for GMS’s relationship with Whitehaven. 44

[37] In circumstances where Whitehaven is a key client of GMS, GMS had been advised by Whitehaven less than a month earlier that it needed to improve its safety performance at the Mine and the photograph was posted on Facebook, I am satisfied that Mr Connolly-Manga’s conduct on 8 August 2018 put GMS’s reputation, viability and profitability at risk.

[38] This provided GMS with a sound, defensible and well-founded reason for dismissing Mr Connolly-Manga.

Conclusion re valid reason

[39] For the reasons set out above, I am satisfied that Mr Connolly-Manga engaged in substantial breaches of the Policy, Declaration, Procedure and Rules. As a result, GMS had a valid reason for his dismissal.

[40] I am also satisfied that GMS had a valid reason for dismissing Mr Connolly-Manga because he acted in a manner contrary to the direction given to him to clean up the surface of the Mine. I am further satisfied GMS had a valid reason for Mr Connolly-Manga’s dismissal because his conduct in posing for the photograph on 8 August 2018 put GMS’s reputation, viability and profitability at risk.

Was Mr Connolly-Manga notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))?

[41] It is necessary to consider and take into account whether Mr Connolly-Manga was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his conduct.

[42] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[43] The criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 45

[44] GMS first became aware of Mr Connolly-Manga’s conduct two days after he posed for the photograph when Mr Adam Hellyer, GMS Drilling Operations Manager, saw the photograph Mr Connolly-Manga had posed for on Facebook and showed it to Mr Vitnell.

[45] On Tuesday 14 August 2018, Mr Tighe and Mr Matt Dyson, GMS Operations Manager, phoned Mr Connolly-Manga to discuss the photograph that had been posted on Facebook. After the call, Mr Tighe sent Mr Connolly-Manga an email inviting him to show cause, as follows:

“As discussed today via telephone it has come to our attention that there has been a very serious safety breach committed onsite at our Narrabri Coal Operation contract.

The nature of the breach(es) as follows:

1. Posing on the top of an Eimco (underground mobile equipment), whilst the engine was running with one foot on the roof, the other on the top of the machine.

2. Having your photo taken on top of the Eimco with what appears to be a roof bolt in your hand.

3. Posting the photo on social media.

We request that you provide us with a written explanation for this conduct and show cause as to why your employment should continue with the business…

From discussions with you today our position currently is that the breach amounts to serious misconduct which placed yourself and others at risk of injury.

Your conduct does not instil trust or confidence in us which is inherent to the employment relationship…”

[46] On 14 August 2018 at 7:20pm, Mr Connolly-Manga responded to Mr Tighe’s email from earlier that day. In that email, Mr Connolly-Manga stated: 46

“As per our earlier discussion; my explanation as to why this incident occurred, is neither valid nor justifiable, short of myself thinking it’d just look cool as hell.

The photo was taken on wednesday 8/8/18 at approximately 15:40, on the surface near the ADS containers, by a person I have elected not to name.

I had committed this foul and apparently life-threatening act with full confidence (as a competent and experienced operator) that neither myself nor anyone else was at risk of being injured/harmed.

Despite popular opinion - I had not held any disregard toward the recent hazard awareness training sessions or safety focus meetings.

Personally, I’d consider drinking Narrabri tap water a far riskier proposition than standing with a raised knee on top of a parked machine, but that’s not for me to decide.

I can only hope that I have served as a meaningful scapegoat for which you have made an example of. Maybe the others will get the idea now.

Despite all that, thanks for having me on board, and do send my regards to Mel, Tony, and anyone else I’ve missed.”

[47] On 15 August 2018, Mr Tighe sent Mr Connolly-Manga an email terminating his employment. 47 The email sets out GMS’s reasons for termination as follows:

“Thank you for your time yesterday and your response to the relevant conduct allegations.

After considering your response and the balance of facts in relation the incident the company’s position is as follows:

• Your conduct was deliberate and presented undue risk to yourself and others.

• Caused a serious risk to the reputation of the business and relationship with a key client.

• Is conduct that is inconsistent with the continuation of your contract of employment.

• We consider that your actions constitute serious misconduct warranting summary dismissal. Effective immediately.”

[48] Although the show cause email sent to Mr Connolly-Manga on 14 August 2018 did not specify the particular policies, procedures and contractual obligations breached by Mr Connolly-Manga, it did identify the unsafe conduct which was alleged to constitute a breach of these safety obligations. I am satisfied that Mr Connolly-Manga understood the nature of the alleged safety breach; his response to the show cause email did not demonstrate any confusion nor did he seek clarification in relation to GMS’s alleged “serious safety breach” at any time.

[49] For the reasons set out above, I am satisfied that Mr Connolly-Manga was notified of a valid reason for his dismissal (acting in an unsafe manner by climbing on top of the Loader) and he was given an opportunity to respond to that reason prior to his dismissal. This weighs against a finding that Mr Connolly-Manga’s dismissal was unfair.

[50] I accept that Mr Connolly-Manga was not notified of, nor given an opportunity to respond to, the valid reasons of failing to comply with a lawful direction or putting GMS’s reputation, viability and profitability at risk. These matters weigh to some extent in favour of a finding that Mr Connolly-Manga’s dismissal was unfair.

Was there an unreasonable refusal to allow Mr Connolly-Manga to have a support person present (s.387(d))?

[51] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.

[52] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”48

[53] Mr Connolly-Manga did not request a support person to be present to assist in discussions relating to his dismissal at any time. Accordingly, I am satisfied that there was no unreasonable refusal by GMS to allow Mr Connolly-Manga to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

[54] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[55] In this case, the reasons for dismissal related to Mr Connolly-Manga’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of GMS on procedures followed in effecting the dismissal (s.387(f))

[56] GMS is a reasonably large business enterprise, so that I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Connolly-Manga’s dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[57] GMS has dedicated human resource management specialists and expertise, so this consideration is not relevant.

Other relevant matters (s.387(h))

[58] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[59] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms: 49

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

Length and quality of Mr Connolly-Manga’s employment with GMS

[60] Mr Connolly-Manga was employed by GMS for just over six months prior to his dismissal. GMS had not taken any disciplinary action against Mr Connolly-Manga prior to his dismissal.

[61] I find that Mr Connolly-Manga was employed by GMS for a relatively short period of time. The fact that Mr Connolly-Manga had not been disciplined by GMS before his dismissal is of some significance and weighs in favour of a finding that his dismissal was harsh. However, the weight to be given to Mr Connolly-Manga’s absence of a disciplinary history is somewhat lessened by the short length of his employment with GMS.

Mr Connolly-Manga’s remorse

[62] GMS submits that Mr Connolly-Manga’s dismissive attitude, together with his lack of genuine remorse or acceptance of accountability during the ‘show cause’ process and these proceedings, is a factor suggesting his dismissal was not harsh, unjust or unreasonable in the circumstances.

[63] I accept that Mr Connolly Manga has not shown genuine remorse for his conduct in posing for the photograph on 8 August 2018. Although Mr Connolly Manga accepted at the hearing that his conduct in standing on the Loader was out of line and a silly thing to do, he ultimately refused to accept that there was any risk that he could have fallen from the Loader. He also refused to accept that his conduct amounted to a breach of policy or procedure. These refusals, together with the contents of his response to the ‘show cause’ request, demonstrate Mr Connolly Manga’s lack of genuine remorse and acceptance of accountability for his conduct. This weighs against Mr Connolly Manga’s contention that his dismissal was, in all the circumstances, harsh, unjust and unreasonable.

Gravity of Mr Connolly-Manga’s conduct

[64] Mr Connolly-Manga was summarily dismissed by GMS on grounds of serious misconduct. The summary nature of Mr Connolly-Manga’s dismissal must be weighed against the gravity of his misconduct in respect of which GMS acted in deciding to dismiss him. 50 In the circumstances, I am satisfied that Mr Connolly-Manga’s dismissal was not disproportionate to the gravity of his conduct, which I find meets the definition of serious misconduct in the Fair Work Regulations 2009 (Cth) (Regulation) for the following reasons:

(a) Mr Connolly-Manga’s conduct on 8 August 2018 was deliberate behaviour that was inconsistent with the continuation of the Contract. 51 There is no dispute, and I am satisfied on the evidence, that Mr Connolly-Manga’s conduct in posing for the photograph was a deliberate act. I am also satisfied that it was behaviour inconsistent with the continuation of the Contract. Mr Connolly-Manga had participated in risk assessment and hazard awareness training less than a month before engaging in the conduct that led to his dismissal. During this training, Mr Connolly-Manga was told by GMS to reduce risk taking behaviour due to the number of recent injuries that had been sustained by GMS employees at the Mine. Despite this, Mr Connolly-Manga not only engaged in conduct which I have found caused serious risk to his safety, he failed to show any real insight into the gravity of his conduct, describing “drinking Narrabri tap water a far riskier proposition” in his show cause response. Mr Connolly-Manga’s conduct and attitude towards the risks to which his conduct gave rise demonstrate to my satisfaction that he would have continued to consider himself free to act in a manner inconsistent with his obligations under the Contract and GMS’s policies and procedures had he remained in employment with GMS; and

(b) Mr Connolly-Manga’s conduct on 8 August 2018 caused serious and imminent risk to the reputation, viability and profitability of GMS’s business. 52 I have already found that Mr Connolly-Manga’s conduct caused risk to the reputation, viability and profitability of GMS’ business. I am satisfied that this risk was serious in circumstances where contracts with Whitehaven account for approximately 90 percent of GMS’s revenue in a given year. I am also satisfied that this risk was imminent. An “imminent” risk is one which is “likely to occur at any moment”.53 Given that Mr Vitnell’s conversation with Mr Morton regarding GMS’s safety standards at the Mine and the training which resulted from that conversation preceded Mr Connolly-Manga engaging in the conduct which led to his dismissal by a matter of weeks and the photograph was made publically available, I am satisfied that the risk to GMS’s reputation, viability and profitability of GMS’ was likely to occur at any moment.

[65] I am not satisfied that Mr Connolly-Manga’s conduct on 8 August 2018 caused serious and imminent risk to the health and safety of a person. 54 Although I have found that Mr Connolly-Manga’s conduct caused a serious risk to his health and safety, I find that this risk was not imminent, because although the risk was real and could have resulted in a serious injury, it was not “likely to occur at any moment”.

Conclusion

[66] There were valid reasons for Mr Connolly-Manga’s dismissal. I have determined that his conduct on 8 August 2018 was in breach of the Declaration, Policy and Rules, as well as Mr Connolly-Manga’s common law and contractual obligation to follow GMS’s lawful and reasonable directions. His conduct also caused serious and imminent risk to the reputation, viability and profitability of GMS’s business. Mr Connolly-Manga’s show-cause response demonstrates his lack of remorse and lack of insight into the gravity of his misconduct. I am not satisfied that the relevant matters under section 387(b), (c) and (h) of the Act which weigh in favour of a finding of an unfair dismissal outweigh those factors which support the opposite conclusion. Accordingly, after considering and taking into account each of the matters specified in section 387 of the Act, my value judgment is that GMS’s dismissal of Mr Connolly-Manga was not harsh, unjust or unreasonable. It follows that Mr Connolly-Manga’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr T Hakkinen, solicitor for Mr Connolly-Manga

Mr C Bell, solicitor for GMS

Hearing details:

2018.

Newcastle:

30 November.

Printed by authority of the Commonwealth Government Printer

<PR705115>

 1   Similar to a front end loader, but developed for use in mines.

 2   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 3   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 4   Ibid

 5   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

6 Ibid

7 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

 8   Ibid

 9   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

 10   [2013] FWCFB 6191

 11   Ex R1; attachment MT-2

 12   Ex R2; attachment TK-1

 13   Ibid; attachment TK-2

 14   Ibid; attachment TK-4

 15   PN103

 16   PN101

 17   PN102–111

 18   Ex R1 at [24]

 19   Ibid

 20   PN198

 21   PN280

 22   PN280

 23   Ex A1 at [7]–[12]

 24   Ibid at [20]

 25   PN150

 26   PN136

 27   PN209-210

 28   PN197

 29   Ex R2 at [31]

 30   Ex A1; annexure B

 31   Ex R2 at [31]

 32   PN332

 33   Ex R2 at [19]-[23]; see, too, para [14] above

 34   Ibid at [23]

 35   Ex R2 at [34]

 36   PN621-622

 37   PN623 & PN676-687

 38   PN617

 39   PN672

 40   PN196; PN217-221 and PN275-278

 41   PN156-157

 42   Ex R3 at [9]

 43   Ibid at [15]

 44   PN162-164

 45   RMIT v Asher (2010) 194 IR 1 at 14-15

 46   Ex R1; attachment MT-6

 47   Ibid; attachment MT-6

48 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

 49   [2013] FWCFB 6191

 50   Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]

 51   Fair Work Regulations 2009 (Cth) reg 1.07(2)(a)

 52   Ibid reg 1.07(2)(b)(ii)

 53   Hansen Yuncken Pty Ltd v Deegan & Ors [2013] FWC 7505 at [31], applying ABCC v CFMEU [2009] FCA 1092 at [114]

 54   Fair Work Regulations 2009 (Cth) reg 1.07(2)(b)(i)