In brief - the application of a consistent disciplinary action regime against workers who breach the safety procedures is paramount.
Dismissed for safety breach
At the Yallourn Open Cut Mine in the Latrobe Valley Mine in Victoria, an employed fitter was dismissed for serious misconduct following a vehicle collision at the mine site.
On 10 August 2020, the fitter was directed to attend a work area to top up the fresh water tank on the mobile site van. For the task, the fitter used a light vehicle with a water tank. When the fitter arrived at the site van, he stopped his light vehicle, allegedly applied the handbrake, alighted from his vehicle and checked the site van to find the fill point for the fresh water.
On finding the fill point, the fitter turned around to see his light vehicle rolling away from its parked location. The vehicle rolled down an incline for approximately 20 metres before colliding with a stationary truck. No-one was injured in the incident as most workers were in the crib hut on a break.
The fitter approached the vehicles and noted there was no damage. He then moved his light vehicle, inspected further, found no damage and drove his vehicle back to the site van to complete his task. He then drove his light vehicle back to the workshop, which was approximately six kilometres away.
Whilst driving back to the workshop, the fitter contacted his supervisor and advised him of the incident.
On the same day, the fitter was interviewed regarding the incident and was stood down that day. Following an investigation, the fitter was provided a show cause letter which stated his conduct had fallen short of the company's reasonable expectations of him with respect to safety such that disciplinary action was warranted. Further, a number of previous safety breaches were cited and the employer requested that the fitter respond as to why his employment should not be terminated.
Show Cause Letter Issued
On 28 August 2020, the fitter was issued with an amended show cause letter that stated the fitter had:
breached the Mine Traffic Management procedure and the statutory requirements for preserving an incident scene, which had been covered in Toolbox topics;
failed to park the vehicle in a fundamentally stable manner, noting the vehicle was parked facing down a slight slope, the engine was running, it was not in gear, wheel chocks were not used and the handbrake was applied, but that the fitter made no attempt to verify that the handbrake was functioning correctly;
failed to preserve the scene for an investigation to be conducted and instead moved the vehicle from the incident scene, conducted further work activities and returned to the workshop;
failed to immediately report the incident to his immediate supervisor noting that he continued to undertake work activities and reported the incident after he left the scene on his way back to the workshop.
Following further correspondence, the fitter's employment was terminated on 18 September 2020 and he subsequently filed an unfair dismissal application.
Employment Terminated - Unfair Dismissal Application filed
This matter was determined in Melbourne on 21 April 2021 following a hearing.
The Court determined that there was a valid reason for dismissal in that the misconduct was serious misconduct. It was found that the fitter had failed to park the vehicle in a fundamentally stable manner contrary to the procedure of the employer.
However, it was found that the dismissal was unreasonable and therefore he was unfairly dismissed. The Commission found that another worker at the same location had received differential treatment to that of the fitter.
The fitter had a history of two significant events whilst working at the mine site over the previous two years. One event occurred when he reversed a vehicle into an electrical cubicle causing damage to the busbars within the cabinet. Further, in January 2020, he was involved in an incident when operating a water spray for which he received a verbal warning.
The fitter sought to be reinstated to his previous position as the Commission had found he had been unfairly dismissed. However, the employer submitted that as the fitter had contravened the safety policies and in conjunction with his previous incidents, he demonstrated a careless disregard for the known safety requirements.
The employer stated it no longer had confidence in the fitter's ability to safely perform work at the mine site.
The Commission determined it was inappropriate to reinstate the fitter to his previous role. Compensation is yet to be determined.
The application of a consistent disciplinary action regime against workers who breach the safety procedures is paramount.
It is recommended that a consistent approach be taken to incidents that are determined to be serious misconduct. If a consistent approach is demonstrated then decisions to terminate workers will be found to be suitable in the conduct of the business.
Ensuring that all workers are safe and following the safety procedures will ensure the safety of all persons at the mine site.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.