DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ritchie Wilson
v
Boart Longyear Australia Pty Ltd T/A Boart Longyear
(U2018/13349)

Application for an unfair dismissal remedy.

[1] This matter involves an application made on 21 December 2018, by Mr Ritchie Wilson (Mr Wilson or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Boart Longyear Australia Pty Ltd T/A Boart Longyear (the Respondent).

[2] The application proceeded to conciliation but was not resolved and so has been referred to myself for determination.

[3] Mr Wilson’s employment was terminated on 7 December 2018. He was paid in lieu of notice.

[4] The reasons for his termination concerned off-site travel Mr Wilson had completed on Saturday, 10 November 2018. The letter of termination mentions findings against him concerning his failure to complete a Journey Management Plan, not correctly completing and gaining necessary approval for a significant risk journey, breaching the Respondent’s Rules of the Road, ignoring a direction that the Environmental, Health, Safety and Training (EHS&T) team no longer perform delivery duties to operations, failing to address the lack of adherence to safety rules by others, not driving to the prevailing road conditions, demonstrating a lack of understanding of how risk is assessed, and a lack of remorse and ownership for his role in a light vehicle incident.

[5] Evidence at the hearing was given by the following witnesses:

•  Ritchie Wilson, the Applicant;

•  Oliver Krcoski, former EHS&T Manager of the Respondent, called by the Applicant;

•  Jeffrey Mark David Boyce, former Driller and Drilling Supervisor of the Respondent, called by the Applicant;

•  James Laws, EHS&T Manager, called by the Respondent;

•  David Thomas Parker, EHS&T Advisor, called by the Respondent;

•  John Jeffery Kirkwood, Regional Director Drilling Services, called by the Respondent.

Factual findings

[6] Mr Wilson first worked for the respondent in 2011 for a period of one year and five months. He was then employed again by the respondent in 2014 and has since then worked in the position of Environmental, Health, Safety and Training Adviser.

[7] Mr Wilson’s evidence is that his main duty was to enforce at the worksite the safety procedures of the Respondent and their clients, and to provide hands-on support to the field supervisors and key client representatives. He also ensured compliance with safety standards. He says that each client of the Respondent had different compliance guidelines and his task was to ensure adherence to the requirements of the clients as well as adherence to the Respondent’s standards 1

[8] Mr Wilson’s contract of employment 2 requires him to familiarise himself with all the policies and procedures of the company. The contract states in clause 3 that the Respondent is committed to maintaining a safe, healthy, injury free and environmentally responsible workplace, and he is required to perform his duties in accordance with the Occupational Health & Safety legislation, as well as the Respondent’s policies and operating procedures. This is reinforced again at clause 11 and clause 21.

[9] The evidence of Mr Laws, which is not disputed, is that the Respondent’s policies include the EHS Standards 2018, the Rules of the Road, and the EHS Management plan 2018, and that employees are provided with copies of these policies and trained accordingly.

[10] The Respondent’s training records disclose that Mr Wilson has been trained in, amongst other things, the following:

•  Distracted Driving in 2016 and again in 2017;

•  Golden Rules of Safety in 2017;

•  Rules of the Road in 2017;

•  Stop Work Authority in 2017;

•  EHS Policy in 2017;

•  Hazard and Risk in 2017;

•  Operating a Light Vehicle in 2014.

[11] Mr Wilson holds a number of qualifications, including in relation to undertaking risk assessments and monitoring compliance. 3

[12] Mr Wilson explains he was tasked to look after three sites, being his base site of Sunrise Dam goldmine, plus St Ives goldmine, and West Musgrave’s.

[13] Mr Wilson would drive between the three sites as was necessary. His evidence is that St Ives was approximately 500 km from Sunrise Dam, and West Musgrave’s was 830 km away from Sunrise Dam.

[14] On 9 November 2018 a supervisor at the Leinster Nickel Mine Site required vehicle parts which the Respondent had at Sunrise Dam. The distance between the Leinster site and Sunrise Dam is approximately 320 km. Mr Richie’s evidence is that he agreed that the supervisor would drive from the Leinster site to Leonora, and he would drive from Sunrise Dam to Leonora, which is approximately halfway between the Leinster site and Sunrise Dam. He would meet the supervisor and hand over the necessary parts.

[15] His evidence was he agreed to drive this trip as explained above to support the operations team.

[16] Mr Laws, the Respondent’s Environmental, Health, Safety and Training Manager – Asia Pacific Region, gave evidence that he commenced work with the respondent on 14 September 2018.

[17] His evidence was that on 19 October 2018 he conducted a team meeting via WebEx. WebEx is an online audio video conferencing application. 4

[18] An invitation to the team, including Mr Wilson, was sent out prior to the meeting. Mr Wilson had replied to the invitation advising he would be on annual leave on this day but would try his best to dial in. 5

[19] Mr Laws’ evidence was that he recalls Mr Wilson being in attendance at that meeting and providing a safety share to the team regarding an investigation he had completed at Sunrise Dam. He also explained he distinctly remembers Mr Wilson attending because he has a distinctive voice.

[20] The meeting on 19 October 2018 was the first team conference call that Mr Laws had convened.

[21] Mr Laws’ evidence was that during this meeting he gave the team, including Mr Wilson, a direction not to undertake parts deliveries for operations.

[22] Mr Parker also participated in the team meeting conference call on 19 October 2018. Whilst the call was being conducted, he sent an email to the other team members participating which included Mr Wilson. His evidence was that he recalls Mr Wilson’s distinctive voice and believes that he did attend that WebEx meeting.

[23] Mr Parker also recalls Mr Laws’ direction that the team was no longer to provide support to operations, such as parts deliveries.

[24] Some documentary evidence was provided that indicated Mr Wilson was logged on to his computer at the time this WebEx meeting was held. That evidence however, whilst suggestive that he participated in that meeting, is not by itself conclusive of that fact.

[25] Mr Wilson’s evidence was that he did not participate in that meeting. His evidence was that he had commenced a period of annual leave that day which was to continue through to 7 November 2018. 6 He says he had other work to do which was more important, and he was busy arranging to leave for his holiday.7 Mr Laws’ evidence however was that this work, concerning safety statistics Mr Wilson says he was compiling, was not time critical such that this would explain why Mr Wilson was too busy to participate in the meeting.

[26] Considering the conflicting witness evidence as to whether Mr Wilson was in attendance at the WebEx meeting on 19 October 2018, I prefer the weight of evidence which is that of Mr Laws and Mr Parker over the evidence of Mr Wilson. My finding is that Mr Wilson did participate in this meeting, and so was made aware of Mr Laws’ direction that the EHS&T team were no longer to undertake parts deliveries. That of course is not to say that Mr Wilson was paying attention during that meeting or that at a later date he was conscious of, and recalled Mr Laws’ direction. Mr Wilson says he does not remember being given the direction. 8

[27] This new directive was not communicated to other employees outside this meeting by Mr Laws. 9

[28] The evidence of Mr Kirkwood, the Regional Director of Drilling Services, is that whilst drilling is a hazardous activity, the Respondent is very conscious that the most likely way of someone being killed is when employees are driving to or from work, or performing other work-related driving activities. Mr Laws in his evidence reinforces that driving involves serious safety risks for employees. This is reflected in the conclusions of a study undertaken by the Respondent into Near Miss/Critical Incidents across its operations globally between 2013 and 2017. 10

[29] In order to mitigate the risks posed by driving, one of the controls in place is the requirement for employees to complete a Journey Management Plan (JMP).

[30] The EHS Standards 2018 outline the circumstances in which JMPs are required for trips using company vehicles. These include, amongst other things, where distances over 200 km, or travel times above two hours, or travel is on isolated roadways, and/or subject to poor telephone communication coverage.

[31] It is a requirement that the JMPs shall be prepared and approved before travel begins.

[32] The JMP is a standard form which requires the driver completing it to identify a proposed journey so that adequate controls can be put in place. The second part of the JMP logs the employee’s journey, and vehicle details can be then provided to police in the event the employee does not reach their planned destination as scheduled.

[33] The risk assessment component of the JMP requires the employee to identify the risks, give each risk a rating, and then tally their score. The score determines what level of approval is required for their journey.

[34] For example, a score between 25 and 49 means the journey is considered a “significant risk” and approval for the journey is required from both the Operations Manager and EHS Manager. After the relevant persons have approved the JMP, employees are able to start their journey.

[35] Mr Laws evidence is that since he began working with the respondent in September 2018 he has reviewed and approved a number of JMP’s including those submitted by members of the EHS&T team. 11

[36] Mr Kirkwood’s evidence was that the JMP process tempers an employee’s temptation to rush, which is known to often lead to safety incidents occurring and this process ensures the journey is undertaken in a controlled manner.

[37] Mr Kirkwood who has worked for the Respondents since 1995 acknowledges that in the past there have been times when the JMP approval process was not strictly adhered to, however, those instances became learning opportunities and have seen the Respondent evolving as a business and making significant changes in recent years to address this.

[38] Mr Wilson’s evidence is that in the past he had sent JMPs to his manager and very few of these were responded to and approved. His evidence was that he inferred from this past experience that he could proceed with the journey after sending through a JMP.

[39] Mr Wilson’s evidence was that on 10 November 2018 when he awoke there was a slight drizzle but after he came out of the dining room at 5:00 AM the rain had stopped.

[40] On the JMP completed by Mr Wilson and sent by email at 7:12 AM 12 he lists the road as paved, and the weather conditions as normal. The total risk score was a 21.

[41] The JMP form states clearly under a heading “Guidance” that the JMP is to be submitted to his supervisor for approval, however it also states immediately above this that the score will determine the risk level, and therefore the approval level required for the journey.

[42] If Mr Wilson had identified the weather conditions as raining that would have added three points to the total score, and if he had also identified that the road was compact unpaved that would have added one more point to the score, bringing the total to 25.

[43] A score of 25 is a risk level which is identified as significant on the JMP. The JMP form states that the approval required where the score denotes a significant risk is from both the Operations Manager and the EHS manager.

[44] Mr Laws’ evidence is that the records show Mr Wilson requested approval for his journey by sending through a JMP just after 7:00 AM on the Saturday morning. However Mr Wilson commenced his journey at 8:04 AM. 13 He had not been granted approval to undertake the journey before he commenced it.

[45] He says that as he began his journey, shortly after 8:04 AM, the road was slightly wet but it was passable and he was initially able to proceed in two wheel drive.

[46] His evidence was that after about 30 km he noticed the road was slippery and so engaged four-wheel-drive. He conceded it had been raining during the night prior to him completing the JMP. 14

[47] When Mr Wilson completed his JMP he gave the journey a moderate risk rating of 21, on the basis that there were no unpaved roads or rain in the area. Mr Laws’ evidence is that he knows from travelling on these roads previously that approximately 50 km of the road was unsealed and during the subsequent investigation in speaking to Mr Wilson, Mr Wilson had agreed that the area had received rain the previous night. Mr Laws’ opinion therefore was that at the time the JMP was completed by Mr Wilson the journey should have been given a significant risk rating and a score of 28, which would have required both his approval and that of the Operations Manager before the journey was commenced. 15

[48] Under cross-examination Mr Wilson agreed that he was required to have his completed JMP approved by Mr Laws and the Operations Manager Mr Hopkins before commencing his journey but he did not do so. 16

[49] The evidence of Mr Krcoski confirmed that because part of a journey is on an unsealed road the JMP should reflect this by showing a higher risk score for that type of road surface. 17

[50] The JMP form is a two-page document that is quite self-explanatory.

[51] Mr Krcoski’s evidence was that someone experienced and qualified in health and safety would be expected to be able to identify that driving on an unsealed road is a higher risk than driving on a sealed road. 18

[52] Mr Laws’ evidence is that in subsequent meetings in November 2018 Mr Wilson admitted that having reviewed his JMP he had not accurately accounted for the road conditions and the weather despite being aware that part of the road was unpaved 19 and there had been rain in the area the night before.

[53] During Mr Wilson’s journey on an unpaved section of road 35 to 40 km from Sunrise Dam his evidence is that the vehicle hit a bad patch of the road and veered to the left. He applied the brakes to attempt to manoeuvre or correct the direction of the vehicle, causing the vehicle to enter an uncontrolled spin. The vehicle rolled over once.

[54] Mr Wilson received a few minor cuts on his fingers and both hands. He used the satellite phone in the vehicle to get in touch with his supervisor and notify him of the incident. He then waited for Respondent staff to arrive.

[55] The vehicle Mr Wilson was driving was written off at a cost to the Respondent of approximately $55,000.

[56] The Respondent undertook an investigation into the vehicle rollover. 20

[57] The Root Cause Summary concluded that Mr Wilson did not drive to the prevailing road conditions and was using a Bluetooth mobile device whilst travelling at speed of 70 to 80 km an hour, in four-wheel-drive, on a wet unsealed road 600 mm from the road shoulder.

[58] The investigation found that contributing factors were that the risks associated with remote area travel on unsealed roads after rain were not assessed correctly, and therefore not controlled appropriately. Also the JMP process, with the requirement to obtain necessary approval before travel was not followed. It had become accepted practice for personnel to not follow the JMP process correctly or gain the appropriate level of approval for off-site travel.

[59] Mr Laws’ evidence was that the investigation finding that referred to it having become accepted practice to not follow the JMP process correctly was a reference to Sunrise Dam and not his experience in other parts of the business. I note this finding of the investigation however is consistent with Mr Wilson’s evidence of his experience.

[60] Evidence was led to demonstrate that in the past there have been occasions where JMPs had not been responded to when they had been completed and sent through by employees, nor have they been approved prior to the employee commencing their journey.

[61] Evidence was given by Mr Boyce who had worked for the respondent for 10 years, and who knows the Applicant from his period of employment. Mr Boyce was a drilling supervisor. His evidence was that he had responsibility for approving JMPs for the people under his management, and he approved those when they were submitted to him. Even as a drilling supervisor he was required to make a JMP when he planned to make a journey.

[62] He found however that lower management took JMPs seriously and adhered to them while the higher management in the company did not.

[63] Mr Boyce himself had a light vehicle accident in 2015. The vehicle skidded on a wet road and the vehicle rolled over. Mr Boyce was not disciplined.

[64] Subsequently the Respondent issued a safety bulletin regarding Mr Boyce’s incident to alert employees to the dangers of light vehicle driving. 21

[65] Mr Boyce’s employment ended in February 2018. 22

[66] Mr Krcoski, in cross examination, agreed that in the mining industry in Western Australia vehicle use poses a critical risk to health and safety, and that vehicle incidents on unsealed roads need to be proactively managed from a health and safety point of view.

[67] His evidence was that when he started with the Respondent in 2010 they had already implemented JMPs. His employment with the Respondent ended in 2015. 23

[68] He agrees that JMPs are a self-assessment tool, and it’s important that the person driving completes the form. 24 He explained that there were times when JMPs would be completed together with a driver as a method of coaching on how it should be done. They would guide the person through the process.25

The investigations and meetings

[69] On 12 November 2018 Mr Wilson was stood down on full pay pending an investigation into the vehicle rollover incident.

[70] As part of the investigation Mr Laws met with Mr Wilson on 12 November 2018.

[71] I accept Mr Laws’ evidence, which was not challenged in cross examination, that during this meeting Mr Wilson admitted he had not accurately accounted for the road conditions and weather in his JMP, and he advised that the journey was to deliver a steering box.' Mr Wilson also said he was writing JMPs for site supervisors, although he knew that they should be completing the plans themselves, because he thought it would help them. Further, he told Mr Laws that he had been on his phone, using hands-free Bluetooth, when the vehicle incident occurred. 26

[72] Relevantly Mr Wilson’s evidence regarding this meeting included that he told Mr Laws that if the risk assessment he made on the JMP was wrong he should be given further training. His evidence was also that the journey was 75% on paved roads and “I had assumed the risk ranking on the JMP should have been on the larger part of the journey which was paved. I was told I had wrongly assessed this risk.” His evidence was also that in the JMP he had indicated the weather conditions were normal “…as the road was slightly wet from the light drizzle earlier in the night and it was not raining at the time I completed my JMP at 7:10 AM.” 27

[73] This evidence demonstrates Mr Wilson didn’t understand the basic principles of risk assessment involved in a JMP.

[74] In his witness statement Mr Wilson did not mention that he had completed JMPs for other employees. In his oral evidence at the hearing, in response to the witness statement of Mr Laws dealing with this issue, Mr Wilson said that JMP’s do need to be completed by the driver but that when they had a new person who is going to perform the drive, Mr Wilson would be sitting with the driver and both of them would do the JMP using his computer because most drivers do not have a company issued computer. 28

[75] I accept the evidence is that Mr Wilson did not give this explanation that he was merely assisting drivers fill out the JMP in his first meeting with Mr Laws on 12 November 2018, nor in the show cause meeting on 23 November 2018. Indeed, under cross-examination Mr Wilson confirmed he did not discuss this in the 23 November meeting, complaining that no opportunity was given for him to do this, but also agreeing that the meeting went for two hours. 29

[76] Mr Wilson agrees that this issue was raised by Mr Laws in the meetings to the point where it was put to him that he should have been using his Stop Work Authority knowing that people were not completing their own JMPs, but even then he failed to explain his reasons for doing so was because he was assisting new employees unfamiliar with JMPs who did not have access to a computer.

[77] I note that Mr Laws’ evidence was that Mr Wilson had told him at the 12 November 2018 meeting he had filled out JMPs for site supervisors rather than for new employees unfamiliar with the JMP forms. Under cross examination Mr Wilson confirmed that is what he told Mr Laws. 30

[78] Mr Wilson’s evidence that he was merely assisting new employees fill out JMPs also seems inconsistent with his explanation during the November 2018 meetings with Mr Laws that he was doing this because employees don’t like to be told they were wrong.

[79] I found Mr Wilson’s evidence under cross examination about why he completed other employees’ JMP’s unconvincing. I do not accept his evidence regarding these matters. His explanations were self-serving and inconsistent with the explanations he had given to the Respondent during the investigation and the show cause meetings. 31

[80] Consequently my finding is that Mr Wilson had previously completed JMPs for site supervisors rather than ensuring that they completed their own JMP. I do not accept there was an acceptable reason for Mr Wilson to have done this.

[81] The Respondent wrote to Mr Wilson on 19 November 2018 requesting he attended a disciplinary meeting on 20 November 2018 to discuss the vehicle incident that occurred on 10 November 2018. That letter detailed the findings of the investigation.

[82] The meeting was postponed until 23 November 2013. At that meeting Mr Wilson attended with his support person Mr Bradford.

[83] The purpose of the meeting was to discuss the preliminary findings of the investigation and give Mr Wilson an opportunity to address those.

[84] Mr Laws’ evidence was that during the meeting Mr Wilson was extremely hostile. He says Mr Wilson incorrectly stated that a JMP was not required for a trip the previous day on 9 November 2018, Mr Wilson again admitted he had allowed other employees not to follow the respondent’s safety procedures because “no one likes to be told they’re wrong “ or words to that effect and Mr Wilson referred to the vehicle incident on 10 November 2018 as an accident which did not have a cause, which troubled Mr Laws because Mr Wilson was a safety professional with experience in incident investigations. 32

[85] Mr Wilson’s evidence was that during the 23 November 2018 meeting he gave examples of the Respondent’s failure to follow the journey management system. He argued that the trip was a regular trip between Sunrise Dam and Leonora and so they did not need to file a JMP and this was the culture. Mr Wilson agrees that it was put to him in the meeting he had not used his Stop Work Authority when he had seen the Respondent’s Policies and Procedures being violated by others. 33

[86] On 7 December 2018 the Respondent met with Mr Wilson to advise him that, having considered all the information including his responses, it had decided to terminate his employment with one month’s pay in lieu of notice. This was confirmed by a letter of termination of the same date.

[87] Subsequently Mr Wilson commenced employment with another drilling company on 1 March 2019.

The Applicant’s Submissions

[88] For the Applicant it is submitted that the Commission should find that Mr Wilson was not present for the WebEX phone conference on 19 October 2018 and therefore could not have known about the direction given by Mr Laws to not deliver parts.

[89] It is submitted that there was a culture amongst the Respondent’s employees to not respond to JMPs, and the Applicant was not provided with any training on our how to complete such JMPs, and there is no policy or procedure on how to particularly fill out such JMPs.

[90] It is submitted that Mr Wilson did not drive too fast on the day in question for the road conditions. He adjusted his speed when he recognised the conditions required this.

[91] It is submitted he did properly assess the risks before commencing his journey on 10 November 2018 as evidenced by his completed JMP which was emailed that morning before his journey.

[92] The risk assessments contained within JMPs are subjective assessments, and Mr Wilson made his assessments based on what he perceived to be appropriate.

[93] It is conceded Mr Wilson did not receive approval before commencing his journey but there was a culture of non-approval of JMPs prior to journey commencement.

[94] The Applicant’s evidence was that he did not utilise his Stop Work Authority when other employees had commenced journeys without themselves having completed a JMP, but this was because there was a culture of this occurring which the Respondent was well aware of. He believed this was an acceptable practice. No other employee has been disciplined for not exercising the Stop Work Authority in the same circumstances.

[95] The Applicant did not knowingly fail to follow the Respondent’s policies and procedures.

[96] The Applicant had a long and unblemished record which weighed in his favour.

[97] It is submitted that the Applicant has been treated harshly in comparison with other employees who have been similarly involved in light vehicle incidents, including Mr Boyce.

[98] The Applicant seeks a decision from the Commission that his dismissal was unfair.

The Respondents Submissions

[99] There was a valid reason for termination related to Mr Wilson’s conduct. That conduct was the cumulative, serious breaches of the Respondent’s policies and the breach of the lawful direction not to perform deliveries. A breach of the policies also amounts to a breach of his Employment Contract which obliges Mr Wilson to comply with such policies.

[100] Although the Respondent relied upon individual breaches of policy as reasons for the termination, the Commission is not required to make findings regarding each of those specific breaches. It is open to the Commission to make a more general finding that Mr Wilson had engaged in conduct that was unsafe, or in breach of his obligations under his contract of employment, or both.

[101] Mr Wilson was notified on 19 November 2018 by way of a show cause letter of the reasons why the Respondent was considering dismissing him.

[102] There is ample evidence before the Commission showing that the Respondent has a zero-harm approach to safety and works with its workforce around the principle of reducing risk and preventing employees from being injured.

[103] Of significance in this particular case the evidence is that vehicle accidents are a significant hazard in the industry generally and the Respondent has been attempting to reduce this risk within its operations globally.

[104] Requiring compliance with its Rules of the Road and EHS Standards is an appropriate means of the Respondent meeting its statutory duty to minimise risk to its employees. The Respondent is entitled to take reasonable disciplinary action to ensure compliance with its policies.

[105] Separately, Mr Wilson’s contract of employment expressly says dismissal may follow serious breaches of policy.

[106] Journey Management Planning and the Rules of the Road are each considered by the Respondent to be an important part of its strategy to reduce risks involving vehicles. These are sound and compelling reasons why the Commission should not lightly interfere with the Respondent’s actions in attempting to uphold its standards, minimise harm, and create a culture consistent with its zero harm approach.

[107] Mr Wilson’s job description requires that he 'walk the walk and talk the talk'. He must not only comply with the Respondent’s EHS policies, he must encourage others to comply.

[108] At no stage, even during the hearing, has Mr Wilson’s responses to his involvement in the light vehicle incident satisfied the Respondent that such an incident is not going to be repeated by him in future.

[109] The roll-over incident on its own might not have led to the termination of Mr Wilson’s employment. However the information that came out of the investigation, from Mr Wilson himself, indicated he could not be trusted to make sound judgments. He showed no insight into how his actions had contributed to the roll-over incident and he did not demonstrate that he understood what needed to change and that this would change.

[110] This was apparent from Mr Wilson’s comments that the roll-over incident was an accident that could have happened to anyone and he had done nothing wrong. This is also apparent from his willingness to blame his deficiencies in risk assessment on inadequate training.

[111] In this regard it is important to bear in mind that it is not for the Commission to stand in the shoes of the employer. The correct approach requires a “fair go all round.”

[112] As to the submission from the Applicant that the Respondent has engaged in differential treatment to Mr Wilson’s detriment, the Respondent submits there is no evidence of more favourable treatment of an employee who had been involved in an incident that was comparable to that of Mr Wilson.

[113] The light vehicle rollover incident Mr Boyce was involved in occurred in 2015, and is not comparable because the Respondent’s approach to managing light vehicle risks changed after this occurred, and after the November 2017 Intersafe Report. Further Mr Boyce was driving at only 40 km/h, half the speed of Mr Wilson. Mr Boyce’s rollover occurred on a crest, rather than a flat and straight stretch of road in the case of Mr Wilson. Mr Boyce was not an EHS&T employee like Mr Wilson, who had been in the EHS&T team for over four years.

[114] Mr Boyce, the Respondent says, demonstrated remorse and insight into his actions. He willingly shared his experience through educative materials provided to other employees including a Flash Alert. By comparison Mr Wilson was aggrieved by the issuance of a Flash Alert concerning his light vehicle incident which was designed to reinforce to other employees the risk of light vehicle journeys. Mr Wilson’s view was this had damaged his reputation.

[115] Mr Wilson also committed numerous other breaches of the Respondent’s policies and contravened a lawful direction.

[116] Consequently the Respondent submits the termination of Mr Wilson’s employment was not harsh, unjust or unreasonable and the application should be dismissed.

Consideration

[117] The particular matters the Commission must take into account when considering whether an employee’s dismissal was harsh, unjust or unreasonable are prescribed in section 387 which is set out below.

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

Valid reason

[118] The Respondent argues that by agreeing to undertake the journey he did on 10 November 2018, Mr Wilson was ignoring the direction previously given by Mr Laws that he and other EHS&T staff were to no longer undertake deliveries for the Respondent’s operations.

[119] Whilst I have found that Mr Wilson was in attendance during the teleconference meeting where Mr Laws gave that direction verbally to staff, Mr Wilson in his evidence was adamant that he had no recollection of that direction which I also accept. 34

[120] These two facts can of course coexist. It is entirely possible that Mr Laws gave that direction during the telephone conference and that Mr Wilson was in attendance but for whatever reason Mr Wilson didn’t hear or wasn’t listening or simply forgot about the direction.

[121] It is of course Mr Wilson’s responsibility to pay attention, particularly when his manager is conducting a meeting, and Mr Wilson is responsible for his own inattention or poor memory.

[122] Mr Laws’ direction was given during a teleconference meeting that Mr Wilson attended. That teleconference was held on the day Mr Wilson commenced a period of 3 weeks absence. 35

[123] Mr Laws’ direction was a significant departure from the Respondent’s past practice. Previously it had been commonplace for Mr Wilson and other members of the EHS&T team to make journeys delivering parts.

[124] Unfortunately after the teleconference meeting there were no minutes issued to the attendees, nor was there a confirming memo or any other documentation sent around reinforcing Mr Laws’ oral direction. There is also no suggestion that the Respondent’s operations supervisors were advised that Mr Wilson and other EHS&T team members would no longer be assisting them by delivering parts. 36

[125] Considering all these circumstances, whilst Mr Wilson’s failure to obey Mr Laws’ direction cannot be excused, it should not be characterised as a deliberate failure to follow a lawful direction. Rather it should be characterised as Mr Wilson having failed to pay sufficient attention to what his manager said during the teleconference meeting. Consequently I do not accept that this failure to follow Mr Laws’ direction to not undertake deliveries was a valid reason for his dismissal.

[126] The Respondent also submits that Mr Wilson committed various breaches of its policies.

[127] With respect to the Rules of the Road policy I am not satisfied the evidence supports the conclusion that Mr Wilson was driving too fast for the conditions. Only Mr Wilson was present in the vehicle at the time he lost control of it. Certainly the investigation report, with hindsight, indicates he should have been driving more slowly and perhaps should not have been talking on the phone so that driving commanded his full attention. This however is not in my view conclusive to the point where I should find that the rollover incident occurred because of Mr Wilson’s poor driving. Mr Boyce’s evidence is instructive on this point where he explained that he, without warning, lost control of a vehicle, and rolled it, travelling at half the speed Mr Wilson was.

[128] I do however accept that Mr Wilson commenced that journey on 10 November 2018 without properly assessing and controlling the risks as he was required to. Mr Wilson in completing the Journey Management Plan as he did, failed to note part of the journey was on an unpaved road, which he knew, and inappropriately classified the weather as fine when he knew it had been raining.

[129] The Journey Management Plans are a self-explanatory document and there is no reason why Mr Wilson, who is an experienced Environmental, Health, Safety and Training Adviser, did not correctly complete the Journey Management Plan given his knowledge of the road he was to drive on and his awareness of the weather conditions. His failure to do so was a breach of the Respondent’s policy and was a valid reason for his dismissal.

[130] I accept, and it is not in dispute, that Mr Wilson on 10 November 2018 commenced his journey without having received approval to do so, which is a requirement of the Journey Management Plan itself. This was a breach of the EHS Management plan. This was also a valid reason for his dismissal.

[131] Finally I accept that Mr Wilson facilitated the violation of the Rules of the Road policy by other employees when he had, on occasion, completed Journey Management Plans for them rather than ensuring that they as the driver completed their Journey Management Plan themselves. I also accept that Mr Wilson, rather than enabling this breach of policy by other employees, should have used his Stop Work Authority when other drivers did not complete their own Journey Management Plans. This conduct was a valid reason for his dismissal.

[132] None of these valid reasons for dismissal were capricious, fanciful, spiteful or prejudiced.

Notification of the proposed reason for dismissal

[133] Mr Wilson was notified in the show cause letter dated 19 November 2018, before he was dismissed, of the reason the Respondent was considering dismissing him.

Opportunity to respond

[134] Mr Wilson had an opportunity to respond to the reason the Respondent was considering dismissing him at the meeting on 23 November 2018.

Support person

[135] The Respondent did not refuse to allow Mr Wilson to have a support person present at any discussions relating to his dismissal.

Warnings

[136] To the extent that it could be argued that the reasons for dismissal related to unsatisfactory performance, I note Mr Wilson had not previously been warned about that unsatisfactory performance.

The size of the employer’s enterprise, and the presence of Human Resource Management Specialists

[137] The Respondent is a large employer which does have human resource management specialists, and the procedurally fair process adopted reflects this as is to be expected.

Other matters

[138] In the past the requirement to have a Journey Management Plan approved before embarking on a light vehicle journey had not been universally applied, however the Respondent’s evidence was that this policy had been much more rigorously applied in the period immediately prior to Mr Wilson’s light vehicle rollover. Mr Wilson sought to rely on the earlier lax approach to JMPs to excuse the fact that he commenced his journey without having his JMP approved.

[139] This point in mitigation is outweighed by the fact that Mr Wilson had been employed for around four years by the Respondent as an Environmental, Health, Safety and Training Adviser. In his own words:

“My main duty was to enforce at the worksite all the safety procedures of the Respondent and the client. I ensured compliance with safety standards.” 37

[140] The Respondent therefore was entitled to expect Mr Wilson would be rigorously applying all of the Respondent’s safety policies at all times. This was a central requirement of his role. The evidence however is he clearly was not doing this. Mr Wilson fell well short of what would be expected of him in this role.

[141] Mr Wilson failed to properly identify the risks in the JMP he completed for the 10 November 2018 journey.

[142] Mr Wilson’s argument that this failure to properly identify the risks was because he had not been trained in completing JMPs demonstrates his unwillingness to accept personal responsibility for his errors. As an employee with around four years’ service as a EHS&T advisor, there is no reasonable basis for him to argue his deficiency in this regard was due to an absence of training in how to complete a self-explanatory risk assessment form he used regularly.

[143] The evidence was that a review of Mr Wilson’s JMP would probably have led to him being queried about the low risk rating he had calculated and potentially the JMP would have then been amended to include a higher risk rating. Had this occurred it may have focused Mr Wilson’s attention more on the relevant hazards. This in turn may have caused him to drive more attentively, and possibly the incident could have been avoided.

[144] Finally, Mr Wilson fundamentally undermined the self-assessment benefit of drivers completing Journey Management Plans themselves by completing these for supervisors himself. By doing this he arguably increased the risk to these drivers, who then undertook a journey driving a light vehicle without having consciously considered and reflected on the hazards and risks involved in that particular journey themselves.

[145] In the context where light vehicle incidents are responsible for a significant proportion of injuries and fatalities in the Respondent’s industry, the repeated failure to comply with the Respondent’s safety policies regarding light vehicle journeys was inexcusable for someone employed as an Environmental, Health, Safety and Training Adviser.

[146] Consequently, my decision is that Mr Wilson’s dismissal was neither harsh, nor unjust nor unreasonable. Mr Wilson was not unfairly dismissed.

[147] An order will now be issued dismissing this application.

Appearances:

Z Kalimeris of MKI Legal for the Applicant.

D Cosentino and L Wilmot of Minter Ellison for the Respondent.

Hearing details:

2019.

Perth:

April 29 to 30.

Final written submissions:

Applicant, 22 May 2019.

Respondent, 15 May 2019.

Printed by authority of the Commonwealth Government Printer

<PR710450>

 1   Witness Statement of Mr Wilson, paragraph 3.

 2   Witness Statement of Mr Laws, attachment JL 1.

 3   Ibid, paragraphs 11 -14.

 4   PN 1302.

 5   Witness Statement of Mr Laws, attachment JL 5.

 6   PN 625, 637.

 7   PN 659.

 8   PN 616, 617.

 9   PN 1163.

 10   Exhibit R 10, November 2017 Intersafe Report.

 11   Witness Statement of Mr Laws, paragraph 16 – 25.

 12   Exhibit R6, page 336.

 13   PN 215.

 14   Witness statements of Mr Wilson, paragraph 6.

 15   Witness statement of Mr Laws, paragraph 46.

 16   PN 531 and 532.

 17   PN 931.

 18   PN 927.

 19   Witness statement of Mr Wilson, paragraph 5 (j).

 20   Witness statement of Mr Laws, Attachment J L 15.

 21   Exhibit A9.

 22   PN 1069.

 23   PN 947.

 24   PN 951.

 25   PN 952.

 26   Witness statement of Mr Laws, paragraph 52.

 27   Witness statement of Mr Wilson, paragraph 10.

 28   PN 95.

 29   PN 567 – 570.

 30   PN 526.

 31   PN 564 – 595.

 32   Witness statement of Mr Laws, paragraph 67.

 33   Witness statement of Mr Wilson, paragraph 15 and 18.

 34   PN 616, 617.

 35   PN 117, 520, 521.

 36   PN 1163.

 37   Witness Statement of Mr Wilson, paragraph 3.