WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KENNETH ROY PORTER

APPELLANT

 -v-

 ELTIN UNDERGROUND OPERATIONS PTY LTD,

 ELTIN LIMITED

RESPONDENTS

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER S J KENNER

DELIVERED TUESDAY, 14 NOVEMBER 2000

FILE NO/S FBA 26 OF 2000

CITATION NO. 2000 WAIRC 01182

_______________________________________________________________________________

Decision  Appeal dismissed.

Appearances

Appellant   Mr A D Lucev (of Counsel), by leave, and with him

    Mr D C Heldsinger (of Counsel), by leave

Respondents   Mr A J Smetana (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

1                 This is an appeal against the decision of the Commission, constituted by a single Commissioner, made on 17 April 2000 in matter No 1295 of 1999, brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  The appeal is against the whole of the decision.  The decision is constituted by an order deposited in the Registry of the Commission on 17 April 2000, whereby the Commissioner dismissed an application by the appellant whereby he claimed that he was summarily and unfairly dismissed from his employment at the Granites Gold Mine at Callie in the Northern Territory.

GROUNDS OF APPEAL

2                 The appellant now appeals against the dismissal on the following grounds:-

   “1.  That the Senior Commissioner erred in law in finding that the summary dismissal of the Appellant was not harsh, unjust or unreasonable, when the alleged conduct did not, as a matter of law, constitute conduct warranting summary dismissal, in that it was not conduct which evinced an intention on the Appellant’s part not to be bound by the contract of employment.

    2.  The Senior Commissioner erred in law in failing to take into account a relevant consideration, namely whether dismissal on notice was appropriate in the circumstances of the alleged conduct; and further erred in law by failing to take into account a further relevant consideration, namely that if dismissal on notice was appropriate in the circumstances, whether that made the Appellant’s summary dismissal harsh, unjust or unreasonable.

  3. The Senior Commissioner erred in law and in fact in failing to find that the summary dismissal of the Appellant was harsh, unjust or unreasonable when the evidence disclosed that the Appellant’s conduct was condoned in relation to:

     (a)  The non-wearing of safety lanyards by the Appellant and his fellow worker Illie Napolioni (Napolioni) in that:

    (i) lanyards were not provided on the platform;

       (ii) messrs Thomas and Prock of the Respondents had looked at the rise, and there was no evidence of an instruction that the lanyards ought to be worn because it was dangerous;

       (iii) lanyards were hidden by other Alimak raise leaders;

       (iv) it was not common practice to wear lanyards;

       (v) the lanyards were not kept underground;

       (vi) none of the Alimak raise leaders seen by, or with whom Napolioni worked, wore lanyards;

       (vii) when Napolioni enquired of another Alimak raise leader he was told it was not normal to wear a lanyard and it would restrict him;

       (viii) the Alimak Raise Climber Manual (Manual) said nothing concerning the use of lanyards in non-breakthrough situations; and

        (ix) there was no formal training on the use of lanyards on the Alimak for either the Appellant or Napolioni.

       Alternately, the Senior Commissioner erred by failing to give sufficient weight to the evidence concerning the non-wearing of safety lanyards, and failed to give any, or any proper, effect to his finding "that there was a culture which appears to have been allowed to exist for some time presumably by the supervisors whereby lanyards were rarely if ever worn, despite the written requirement that they be worn."

     (b)  The meshing and bolting of the rock face in that the Senior Commissioner erred in finding that the face should have been meshed and bolted when the evidence indicated:

      (i) that no-one told the Appellant to mesh or bolt this particular face;

       (ii) the Appellant was not aware of any procedures, written or otherwise, requiring him to mesh or bolt the face; and

       (iii) supervisors of the Respondents visited the rise on the day of the accident and gave no direction to mesh or bolt the face.

     Alternately, the Senior Commissioner erred by failing to give any, or any sufficient, weight to the evidence of the Appellant concerning the meshing and/or bolting of the face.

   4.  The Senior Commissioner erred in law and in fact in failing to take any, or any proper, account of the fact that the gap through which Napolioni fell was not caused by the Appellant, and the fact that the Respondents failed to take that fact into account when deciding to dismiss the Appellant.

   5.  The Senior Commissioner erred in law and in fact in taking into account the procedure that the Appellant told Tony Sime (Sime) that he had used, namely, to use the airleg to clear the misfires when, on the totality of the evidence:

      (a)  The Appellant did not use that procedure;

      (b)  There is no evidence that the Appellant ever used this procedure;

      (c)  The Appellant did not see any misfires on the day and there is no other evidence of his conduct relating to misfires;

      (d)  Napolioni did not see any misfires on the day; and

      (e)  The "admission" concerning the procedure came after the Appellant's employment had been terminated.

    6.  The Senior Commissioner erred in placing reliance on two previous warnings when:

      (a)  Those warnings related to minor safety breaches;

      (b)  Those warnings were not sufficiently serious to warrant written warnings;

      (c)  There was no indication that further safety breaches would result in summary dismissal; and

      (d)  Dismissal without a final warning was contrary to the Respondents own disciplinary policy.

   7.  The Senior Commissioner erred in failing to find that the process followed by the Respondents, and which resulted in summary dismissal, was harsh, unjust or unreasonable when the Appellant:

      (a)  Was given no warning that the process of investigation might lead to dismissal;

      (b)  Was given no warning, when being given a written warning, that he might be dismissed;

      (c)  Was initially given a written warning and then was later summarily dismissed in relation to exactly the same events;

      (d)  When being dismissed was given no opportunity to explain or mitigate the bases on which the Respondents relied for termination;

      (e)  Was allowed to carry on working immediately after the accident and for a period of three days prior to his dismissal; and

      (f)  Was given no opportunity to obtain independent advice.

    8.  The Senior Commissioner erred in law in failing to find that summary dismissal was harsh, unjust or unreasonable when the alleged conduct was not conduct warranting summary dismissal, in that it was not conduct which evinced an intention on the Appellant's part not to be bound by the employment contract and where the conduct complained of was:

    (a)  Condoned (at least in part) by the Respondents;

    (b)  Alternately, allowed to continue unabated by inadequate supervision by the Respondents;

    (c)  Further, and in the alternative, the subject initially of a written warning which indicated that summary dismissal was not appropriate nor that it was initially contemplated by the Respondents;

    9.  The Senior Commissioner erred in law and in fact by failing to give proper consideration and/or sufficient weight to the evidence (including the report) of the Inspector of Mines, Tad Szwedzicki (Szwedzicki), in circumstances where the Senior Commissioner accepted Szwedzicki's evidence, in that Szwedzicki's evidence was that:

    (a)  It was the practice for safety lanyards not to be worn underground, a practice condoned by the Respondents;

    (b)  There was no evidence to mount a prosecution under the relevant Mines and Safety legislation as the Appellant had committed no deliberate negligence, the injuries sustained by Napolioni were not serious and that the duty of care for making the workplace safe was the Respondents;

    (c)  According to his report:

      (i) the Manual did not specify blasting parameters for two metres by two metres nor did it specify the maximum acceptable overbreak nor the procedure in a case of an overbreak;

       (ii) the Manual was not specific in what situation the fall arresting equipment should be used, except for breakthrough;

       (iii) no written proof was available that the Appellant or Napolioni had any formal training or work assessment on Alimak raising;

       (iv) the shift boss did not visit the work face so that he could not know about the overbreak at the height of 15 metres;

       (v) there were no records available of periodical (that is daily or weekly) safety checks by shift bosses;

       (vi) the Alimak miners had confirmed that they did not use lanyards; and

       (vii) he recommended that shift supervisors travel to and inspect the face daily and fill out an Alimak check list, and that all Alimak crews, shift bosses and foremen and the site manager had to be inducted and assessed on the Alimak Manual.

   10.  The Senior Commissioner erred in law and in fact in that he relied on the contents of the Manual in circumstances where there is no evidence that the Appellant was made aware of the contents of the Manual, in circumstances where the Respondents had a legal duty to do so.  Further, he failed to take into account that Szwedzicki required all mining crews to be re-inducted and assessed as the Manual had to be modified.

   11.  The Senior Commissioner erred in finding that the Appellant underwent a competence test based on the Manual in April 1999 when:

    (a)  The "test" itself was not conducted in accordance with the test requirements prescribed in the competence assessment test;

    (b)  There was no evidence of any assessment in the workshop environment;

    (c)  The "test" took half of one hour when forty hours is the prescribed minimum; and

     (d)  The "test" was interrupted in any event.

     Further, the Senior Commissioner erred in that he failed to take into account the inherent unreliability of the document evidencing the "test" which:

    (a)  On the evidence was not a document completed by the Appellant, but recreated by Ron Johnston (Johnston) in the Appellant's absence; and

    (b)  Had a different date on its face to the date on which the "test" is alleged to have taken place.

   12.  The Senior Commissioner erred in placing weight on his finding that the Appellant had been inducted into the safety requirements at the Callie mine, and in accepting Sime's evidence, especially as to the safety induction for the Appellant, and preferring it to the Appellant's because:

     (a)  Sime did not give evidence that the Appellant did a safety induction, merely that he had found a completed tear-off form including questions about PPE;

     (b)  The Appellant’s specific evidence, which was uncontroverted, was that he was not given a safety induction, or any induction at all, on the Alimak;

      (c)  Sime was not in a position to give evidence about what happened at the Callie mine at the time the Appellant commenced there in February 1999, as Sime did not commence there until June 1999; and

    (d)  Napolioni was given no induction on the Alimak.

   13.  The Senior Commissioner erred in taking the alleged non-bolting/securing of the rail into consideration when the evidence indicated that that part of the rail was not then in use and that it would have been bolted at the appropriate time.

   14.  The Senior Commissioner erred in law in that he failed to take into account a relevant consideration, namely, the duty of the employer to provide and maintain a safe workplace under the relevant Mines and Safety legislation, and at common law.

   15.  The Senior Commissioner erred in that he failed to give any sufficient weight or effect to his finding that "the supervision of underground employees was less than adequate" when:

      (a)  The Respondents failure to adequately supervise was:

     (i) a breach of the duty to provide a safe workplace under the relevant Mines and Safety legislation, and at common law;

     (ii) a breach of the relevant Mining legislation;

     (iii) important to ensure the quality of drilling, and hence design, of the mine, and in particular the rise in which the Appellant was working; and

      (iv) a contributing factor to the Appellant’s immediate supervisor/s condoning various alleged safety breaches for which the Appellant was dismissed;

     (b)  On the Respondents own evidence, the Respondents accepted that:

     (i) the accident could have been avoided if there had been experienced Alimak supervision of Alimak lead miners;

     (ii) Alimak rising is a speciality that needs experienced Alimak supervisors on the site;

     (iii) the supervision at Callie in regards to Alimak rising was inadequate;

     (iv) there was no supervision because supervisors didn't go underground and supervise; and

     (v) Alimak supervisors that were on site at Callie had not filled in logbooks for three months correctly nor had they enforced the filling in of daily checklists or maintenance weekly safety checks.

   16.  The Senior Commissioner erred in law in failing to take into account a relevant consideration, namely, the failure of the Respondents to comply with it's own disciplinary procedure which required that the Appellant be given a final warning before dismissal.

   17.  The Senior Commissioner erred in law in failing to take into account a relevant consideration, namely, the evidence of Johnston that the incident was "out of character" for the Appellant.

   18.  The Senior Commissioner erred in law and in fact by failing to have regard to a relevant consideration, namely that the deficiencies in the provision of the equipment provided by the Respondents were a contributing cause of the accident.”

APPLICATION TO EXTEND TIME

3                 In addition, the appellant applied for an order that the time in which to file an appeal to the Full Bench of the Commission be extended for the reasons in the attached schedule to the application.  The grounds of that application are that the appellant wishes to appeal against the decision at first instance and to engage another legal firm to represent him in his appeal.  In addition, he resides in the State of Queensland and required the transcript of the proceedings to be sent to him.

4             The time limit for the Notice of Appeal to be filed, he alleged, expired on 8 May 2000.  The application was filed on 5 May 2000.  Due to an Easter and Anzac Day break, that meant that the appellant only had 16 days in which to appeal against the decision, instead of the prescribed 21 days granted pursuant to s.49 of the Act.  The appeal was filed on 23 May 2000.  The application was opposed by the respondents.

5                 There are two appeals where the reasons for decision of the Industrial Appeal Court refer to applications to extend time.  They are Ryan v Hazelby and Lester trading as Carnarvon Waste Disposals 73 WAIG 1752 (IAC) and Tip Top Bakeries v TWU 74 WAIG 1189 (IAC), both citing Gallo v Dawson [1990] 64 ALJR 458 (HC).

6                 There was a substantial enough prospect of success, a small enough delay, and there was no evidence of any substantial prejudice to the respondents, along with the obvious evidence of substantial prejudice to the appellant, if the application was not allowed.

7                 I would allow, for those reasons, the application to extend time within which to institute the appeal.  An application to file and serve appeal books out of time was not opposed.  I would allow that application, for broadly the same reasons and particularly because there was no evidence of any prejudice being occasioned to the respondents if the application was granted.

BACKGROUND

8                 There was a quantity of documentary evidence adduced in these proceedings.  There was oral evidence adduced on behalf of the appellant, Mr Kenneth Roy Porter, through himself and through Mr Illie Napolioni, and through the Government Mining Engineer and Inspector of Mines for the Northern Territory, Mr Tad Szwedzicki.  For the respondents, evidence was adduced through Mr Antony Andrew Sime, Regional Manager WA Operations for Henry Walker Eltin Group of companies (hereinafter referred to as “HWE”) and formerly Project Manager employed by HWE at the underground gold mine, known as the Callie Gold Mine in the Northern Territory, and from Mr Ron Johnston, Manager of HWE Underground Services and, at the material time, Operations Manager for Eltin Underground Mining Services based in Kalgoorlie in this State.

9                 Mr Porter was, at all material times, an Alimak raise miner.  The respondents are mining contracting operators providing services to mine owners and operators.  Mr Porter was employed by one or other of the respondents as a raise miner from 29 May 1992 until 27 July 1999, on which latter date he was summarily dismissed from his employment.  As at the time of the hearing of the application at first instance, Mr Porter was living in Charters Towers in Queensland and was not working due, he said, to severe anxiety and depression.

10              Mr Porter alleged that he was unfairly dismissed from his employment by one or other of the respondents.  He originally sought reinstatement in his former employment, but when the matter came before the Commission at first instance, he sought only compensation, and not an order for reinstatement or re-employment.

11              Initially, the Notice of Application was directed only to the first named respondent, which disputed that it ever employed Mr Porter.  Instead, the first respondent asserted that Mr Porter was employed by the second named respondent, one of its subsidiary companies.  Thus, the first name respondent denied any liability in respect of the application.

12              Over the objection of the second named respondent, the Notice of Application was amended on the motion of Mr Porter to add the second named respondent, a wholly owned subsidiary of the first named respondent.  The second named respondent disputed that Mr Porter was unfairly dismissed, contending that he was guilty of serious breaches of safety procedures in the workplace, justifying the summary termination of his employment.

13              It was common ground between the parties that Mr Porter was employed at the Granites Gold Mine at Callie in the Northern Territory and where his employment was terminated, and that he had been so employed since 2 February 1999, when he was “transferred” there.  He was employed as an Alimak Leader, which meant that, in effect, he was the leader of a two-man team.  Further, it was common ground that he was brought to Australia, together with other Canadian Alimak miners, by one or other of the respondents because he was an experienced Alimak raise miner.  Canada, it was said, was a leader in the field of Alimak mining.

14              It was also common ground that Mr Porter’s employment was terminated on 27 July 1999.

15              It was not in issue that, at the material time, the Granites Gold Mine at Callie was owned by a company referred to as “Normandy”.   

16              The gold mine is a decline access mine which is 500 vertical metres deep.  The Alimak crews were employed by Eltin Underground Mining Services which “subcontracted” the crews, first to the first respondent and then, when the first respondent and Henry Walker merged in about May or June 1999, to form HWE.  The Alimak crews would go to different mining sites in Australia, wherever their skills were required.

17              Mr Sime commenced employment at Callie on Tuesday, 29 June 1999, only about three weeks before Mr Porter was dismissed.  Mr Sime said, in evidence, that he believed that Eltin Underground Operations Pty Ltd carried on business as “Eltin Underground Mining Services” and was Mr Porter’s employer at Callie.  Mr Sime was a very experienced miner and held an Underground Mine Management Certificate under this State’s legislation.

18              With some exceptions, at the material time, the rest of the employees were still employees of Eltin Underground Operations Pty Ltd, not HWE.  There were about 120 employees at the mine employed by the first respondent, HWE and Eltin Underground Mining Services, at the material time.

19              Mr Sime’s employer, HWE and its predecessor, Eltin, the first respondent, had the contract with the mine owner for development and production at Callie.

20              Mr Johnston was also a very experienced miner with 35 years’ experience in underground mining and 30 years’ experience in Alimak mining.  He was responsible for employing Mr Porter in 1997 and appointing him an Alimak Leader, responsible for leading the shift, and the safety and training of his offsider.  Mr Johnston, as Operations Manager for Eltin Underground Mining Services, was responsible for providing Alimak crews and equipment to Eltin and then to HWE.

21              The Alimak system, which played such a major part in these proceedings, is a mobile working platform which miners stand on to make an excavation through solid rock from one level of a mine to another.  This excavation is called a “rise” and is used for ventilation, to travel between levels, or as a slot in which the ore is fired so that the ore block between two levels can be mined.  The level from which the rise is excavated is called the “flow of the rise”.

22              The Alimak is connected to and is driven along a monorail by a driven motor (see page 289 of the appeal book (hereinafter referred to as “AB”).  From the foot of the rise, one travels up to the platform at the top of the rise in a cage.  There, on the platform, the miners work, drilling, blasting and excavating.  To make the face safe by scaling loose rock, mesh is pinned to the face to stop rocks which have been loosened by the machine when boring holes in the rock.  When the holes are bored in the rock, they are filled with explosives.  (The manner in which an “Alimak Raise Excavation” is effected and the nature of the machine appears at page 290 (AB), which is a copy of page 33 of the “Eltin Alimak Training Manual”.)  The manual also prescribes the setting up of the machine, how to operate it and safety measures.

23              There is a canopy (or safety roof) fitted to the machine overhead to protect the miner from falling rocks while he is on the platform.  The cage in which the miner travels is underneath the platform.  There is also a rail, a monorail, on which the Alimak ascends the rise.  The rail is bolted to the wall of the rise using, as is required by the manual, two bolts in each anchor plate.

24              An Alimak crew consists of a leader and his assistant.  The leader is the decision maker for the group (see page 79(AB)).  The assistant is a trainee who is to be taught by the Alimak Leader the safe work methods and how to operate an Alimak.  (That was the evidence of Mr Sime and Mr Johnston.  Mr Porter’s evidence of his training and leadership role (albeit reluctantly conceded) substantially confirmed that evidence.)

25              There were three Alimak Leaders at Callie at the material times:  Mr Porter, Mr Del Wotherspoon and Mr Yacco Vassi.  All three gentlemen were Canadians sponsored into Australia by the second respondent on work visas to train and instruct Australian miners in the technique of Alimak mining.  At all material times, Mr Wotherspoon and his assistant worked the night shift on the Alimak at the time of these proceedings and Mr Porter and his assistant, Mr Napolioni, worked the day shift.  Mr Napolioni was a trainee being trained by Mr Porter in Alimak mining.  Safety in relation to Alimak mining was the direct responsibility of the Alimak team.  (Again, Mr Johnston’s and Mr Sime’s evidence clearly reflected that fact.)

26              Mr Porter was a very experienced miner with 20 years’ experience as an underground miner and 15 years as an Alimak operator.

27              When Mr Sime commenced at Callie, the Alimak teams had their own Site Manager, Mr David Martin, who looked after the Alimak teams only.  He, however, was absent on sick leave soon after, and remained absent as at the time of the dismissal of Mr Porter.

28              When employees come to a new mine, they go through induction procedures.  In addition, at the material time, Eltin and HWE had extensive written safety procedures, including the “Eltin Underground Operations Procedures Manual”, which sets out how to do various tasks safely by using the best methods known to the underground mining industry, and it was available in the crib room, the shift boss’ office and the main site office.  It was also referred to during safety meetings and whenever any new tasks were performed.  “The Eltin Safety Booklet” was also used for induction into underground mining.  These form part of every employee’s induction to a new mining site.

29              Mr Porter should have been inducted and also Mr Napolioni, when he came to Callie.  Indeed, Mr Porter conceded that he had been inducted (see page 85(AB)).  Mr Sime said in evidence that such inductions are compulsory and, indeed, Mr Porter and Mr Napolioni signed the appropriate declaration, which is a tear off page from the safety booklet (see page 466(AB)).  At HWE Callie, Mr Sime applied the Western Australian Mines Safety and Inspection Act 1994 requirements and the regulations made thereunder, rather than those of the Northern Territory.

30              The Alimak crews also had their own manual called the “Eltin Underground Operations Alimak Raise Climber Manual” and referred to above (see pages 258-349(AB)) (hereinafter referred to as the “Alimak Manual”).  Mr Johnston told Mr Sime, in either Kalgoorlie or Perth, in about March 1999, that every person in the Alimak crew had received an Alimak Manual.  Mr Porter did not receive one, he said.  He first saw it when Mr Wotherspoon was dismissed and said that, as far as safety procedures go with the Alimak, he knew what they were because “it just goes with the trade” (see page 84(AB)).

31              At Callie, at every shift change, while Mr Sime was a Project Manager, there was a 10 to 15 minute meeting in relation to safety called a “PASS meeting”, i.e. “Positive Attitude Safety System”.  This meeting was attended by the crew going on shift and the shift boss.  Mr Porter referred to PASS meetings in evidence.  There was also a safety meeting held once a week every Tuesday on the shift change day (see page 457(AB)).

32              Mr Sime went underground to inspect the workings approximately every second day.  Inter alia, he would check on the Alimak operations.  However, he said in evidence that one cannot readily check what the miners are doing on the work platforms.  One can only do this if the Alimak miners come down from the cage, pick you up and take you to the platform.  The Alimak crews were given direct responsibility for safety in the rise (see page 459(AB)).  However, there was no reason, in my opinion (and as Mr Szwedzicki said, should occur), that a shift boss should go up the rise and check Alimak work.

33              The Alimak Manual directs the drilling of two holes in the guide rail line and the insertion of two bolts (see pages 297 (paragraph 4), 301, 303 (paragraph 3) and 318(AB)).  The safety roof (or canopy) is described as a basic component of the machine (see page 305(AB)).  Since it is there to prevent rocks falling on miners whilst on the Alimak platform, it is obviously a basic component of the machine.

34              The Alimak Manual also requires, inter alia, that the face should be examined for misfires.  A “misfire” is a hole filled or partially filled by an explosive.  The guide for drilling cautions against inaccuracy in firing, otherwise large openings between the platform and the raise walls will result (which is what occurred in this case) “creating an obvious safety hazard” (see page 323(AB)).

35              When a breakthrough is effected, i.e. the breakthrough to the floor of the level above that from which the Alimak started, “no personnel should approach the raise breakthrough without attaching themselves to a fall arresting device” (see page 336(AB)).

36              As one of the work procedures, operators are directed to check “to ensure that all equipment is in place, such as safety lanyards, scaling bars, rockbolts, etc.” (see page 343, (paragraph 6)(AB)).  Amongst the General Rules for operating the Alimak (see page 344 (AB)), paragraph 5 requires that “Safety lines must be stored on the climber and used as required (ie. when any open hole conditions exist).” (my underlining)

37              The manual, “Safety in Underground Mines” notes, inter alia, that each person is responsible for making and keeping his workplace safe at all times.  Before leaving the job, persons are directed to “ensure that the workplace is safe” and report that fact, if it is not (see page 355(AB)).

38              Further and significantly, the manual directs as follows (see page 356(AB)):-

  “Any person working where there is a danger of falling from a height, must wear fall arrest equipment which will enable him to be secured to an anchorage which will prevent him from falling, and enable him to work with both hands free.”

39              (Manifestly, in this case, when Mr Napolioni fell, he was “working where there is a danger of falling from a height”.)

40              Further, it is provided that:-

  “Any equipment which is faulty or in an unsafe condition must not be operated, and its condition must be reported to your Supervisor.”

41              (In this case, the Alimak was operated without a canopy or without a safety lanyard on the platform.)

42              At page 358(AB), paragraphs 3.1 and 3.2 provide as follows:-

  “Each EMPLOYEE must accept that he has the following responsibilities.

  1. To take reasonable care to ensure his own health and safety at work and avoid adversely affecting the health and safety of other people by anything he does or forgets to do at work.

  2. To comply as far as he is able with all instructions given by his employer or the Manager of the Mine for his health and safety or the health and safety of other people in the Mine.”

43              Paragraph 4.1 at page 359(AB) provides as follows:-

  “The EMPLOYER must accept that he has the following responsibilities.

  1. As far as practical, to provide and maintain workplaces and system of work so that his employees are not exposed to hazards.”

44              I explain hereunder some terms which were used in the proceedings.

45              “Firing” is the exploding of charged holes (see page 395(AB)).  A “rise” is a tunnel in rock which is more vertical than horizontal and, officially, any opening more than 15 degrees above horizontal.  A “misfire” is a hole filled or partially filled with explosives which have not exploded (see page 397(AB)).

46              On 24 July 1999 and for some days before that, Mr Porter was working in an underground rise with Mr  Napolioni, using an Alimak raise climber machine.   In fact, they had, first of all, been engaged in setting the machine up and 24 July was their first day drilling together in that rise.  It was also common ground that Mr Napolioni was relatively new to Alimak mining and was still in the learning phase.  He was, in fact, a trainee (see page 98(AB)).  They were working on a platform which formed part of the machine, approximately 14 metres (or 45 feet) above the base of the rise.  The machine and, thus, the platform was, in effect, boxed inside the rise by the face and by the walls on each of the four sides of the platform.  The canopy or safety roof, to which I have referred above, was broken.  Neither Mr Wotherspoon or Mr Porter ensured that it was repaired and refitted before work went on in the rise.

47              Whilst they were working on the platform and drilling one of the walls of the rise, Mr Napolioni fell from the platform to the base of the rise, injuring his head, shoulder, ribs and left arm.  Mr Porter found Mr Napolioni lying at the bottom of the rise.  He called the paramedic, the ambulance was called and Mr Napolioni was taken to hospital.

48              There was a gap between the edge of the platform and the face on which he was drilling which was big enough for him to fall through.  It was Mr Porter’s evidence that he noticed the gap (i.e. between the face and the edge of the platform) and that it was not a wide gap (see page 50(AB)), but nearly two feet wide.  I would observe, however, somewhat obviously, that the gap was wide enough for Mr Napolioni to fall through.    The gap had been caused by blasting in the preceding shift on which the crew were Mr Wotherspoon and his offsider, causing an overbreak.  An “overbreak” is caused by rock being blasted away form the face in an incorrect profile, leaving a gap between the Alimak platform and the face.

49              Put another way, and in the words of Mr Szwedzicki, an overbreak occurs when the size of the excavation is larger than stipulated because of blasting.  That is what occurred in this case.  An overbreak has a horizontal dimension, but a “breakthrough” has a vertical dimension.

50              The respondent companies said that Mr Porter was responsible for this mishap.  They alleged that he was engaged specifically as an Alimak Leader with the object of instructing new miners, and he should have made sure that both he and Mr Napolioni were each wearing a safety lanyard.  There were no safety lanyards on the Alimak platform, and it was common ground that neither Mr Porter nor Mr Napolioni was wearing a safety lanyard on this occasion.  Safety lines were not usually worn on the platform (see pages 57-58(AB)).  This was contrary to the Alimak Manual.  Further, if Mr Napolioni had worn a safety lanyard, it was properly admitted by Mr Porter, he would not have fallen to the bottom (see page 100(AB)).  The purpose of the safety lanyard, Mr Porter admitted, is to stop people falling down holes.  He did admit that if there is a danger of falling down a hole, you wear a lanyard.  In this case, it was open to find that such a danger was manifest (see pages 100-101(AB)).

51              The second named respondent also contended that, upon enquiring into the mishap, it discovered that the gap through which Mr Napolioni fell was caused by those responsible for working the rise not establishing the correct profile for a rise.

52              In addition, the face had not been meshed, as required, nor had the rail been properly bolted to the face, contrary to the requirements of the Alimak Manual.  Mr Porter said that he would only mesh a “bad” face, and this was not a “bad” face.  He said that he was aware of the written procedures requiring meshing.  As to bolts, he said that he would basically only put those in when he thought that it was necessary (see page 106(AB)).  Nobody, he said, showed him the “written procedure” that he had to screen the face or bolt the walls (see page 107(AB)).  Again, he said that he was unaware of any “written procedure” requiring the use of a canopy (although the Alimak Manual refers to it as a basic component) or putting the rail up.  (The manual deals with all of these matters.)  Mr Porter said that, in 20 years of mining, he had learnt through “the school of hard knocks”, not in classrooms (see page 108(AB)). 

53              In addition, it was alleged and, indeed, admitted that the Alimak machine had been used without the canopy being fitted, again contrary to the provisions of the Alimak Manual.

54              Furthermore, frozen misfires were found by Mr Sime in the rise where Mr Porter had been working and, when questioned by Mr Sime as to how frozen misfires were removed,  Mr Porter said that he told Mr Sime that he “rattled out misfires with the airleg machine”, a process which the second named respondent told the Senior Commissioner is highly dangerous and not in accordance with proper mining practice.  He said that he told Mr Sime this after he was dismissed and that it was not true.  He also said that he would never adopt such a dangerous practice and that, in telling Mr Sime that he had “rattled out the misfires”, he had lied because he was angry at his dismissal (see page 105(AB)).  However, in cross-examination, he admitted telling Mr Sime this before his dismissal (see pages 196-197(AB)), namely on 25 July 1999.

55              Mr Porter admitted that all of these “irregularities” had occurred and the second named respondent alleged that these constituted serious breaches of duty; and, indeed, serious breaches justifying the summary dismissal of Mr Porter which occurred.

56              It is to be noted that Mr Martin had given Mr Porter a written warning for not wearing safety glasses “in the proper manner”, after he had sustained an eye injury because of that omission on 18 March 1999 (see page 401(AB)).  It is noteworthy that, according to Mr Sime’s evidence, which the Senior Commissioner accepted, he had warned Mr Porter not long before these events about not wearing a seat belt or safety glasses.

57              After interviewing Mr Porter on 26 July 1999, Mr Sime listed the breaches on a written warning form, alleging that Mr Porter had been careless, had committed breaches of safety standards, was responsible for poor work quality and had failed to follow proper work procedures.  Mr Sime had Mr Porter sign the written warning form, accepting the allegations contained therein (see page 400(AB)) in which it was alleged that he had not followed procedures.  The details of the incidents, the subject of the warning, are recorded as follows:-

  “The Alimak rise & gear was being worked in an unsafe manner.  No canopy, no safety lanyards, insufficient care for workmate, no mesh on face, incorrect clearing of misfires, recognised hazard (gap around platform) & didnt(sic) fix it. (Is Alimak log book being filled out) (No) Supervisors Job”

58              Mr Porter said that, when these matters were discussed, he questioned the allegation about misfires, but signed the document when Mr Sime became angry. The warning form also notes that “Ken was dismissed for these breaches.”  In fact, he was dismissed on the day after, 27 July 1999.

59              Mr Sime made it clear in evidence that, in his opinion, the Alimak supervisors were the ones who allowed the breaches of procedures (see page 214(AB)).

60              Mr Sime said, in evidence, that he never intended that the form operate as a warning, but simply that it be, in effect, a record of Mr Porter’s errors.  His intention was to dismiss Mr Porter as soon as possible, but as Mr Porter was required to be present the next day when the Inspector of Mines arrived from Darwin, he did not carry that intention into effect immediately.  The dismissal was effected the next day, 27 July 1999, following the completion of enquiries by the inspector, when Mr Porter was dismissed summarily by Mr Sime from his employment with the second named respondent, with the words “Sorry, mate, I am going to have to let you go” (see page 66(AB)).

61              Mr Wotherspoon, the Alimak Leader on the shift before Mr Porter and Mr Napolioni, was dismissed for causing the overbreak or failing to prevent it occurring and for other alleged breaches of safety requirements, on 26 July 1999.

62              Mr Sime said, in evidence, that he would have dismissed Mr Porter at the same time as Mr Wotherspoon, had Mr Porter not been required to wait until the Mines Inspector arrived and conducted his investigation.

63              Significantly, when he was leaving on 27 July 1999 after his dismissal, Mr Porter asked whether the police would be waiting for him in Alice Springs.  Mr Sime told him that they would not be.  Mr Porter said to Mr Sime “... anybody else, I would have been behind bars, and you would have been going to a funeral” (see page 115(AB)).

64              Mr Porter said in evidence that, although he was an Alimak Leader, he was not an instructor and not responsible for training Mr Napolioni or for the mishap.  However, his evidence, read as a whole, was to the effect that Mr Napolioni was his subordinate, inexperienced and learnt from him.  Further, Mr Porter said in evidence that it was the practice in the mine amongst employees not to wear a safety lanyard in circumstances such as those in question.  Indeed, he denied ever having been told to wear a safety lanyard or having been given a manual dealing with the use of such equipment, although he admitted to Mr Szwedzicki that he had received such a manual.

65              Mr Napolioni said that there was no Alimak supervisor on site during the week of the accident (see page 133(AB)).  There were no comments from supervisors enforcing the wearing of lanyards, and Mr Napolioni confirmed in evidence that Mr Porter was training him.  Mr Napolioni said that he was not given the manual and had to ask for it (see pages 139-141(AB)).

66              What Mr Porter said in this respect was, in part, supported by Mr Napolioni, who said that, shortly before the incident, he worked with other Alimak Leaders and was told by them that it was not necessary to wear a safety lanyard.  Mr Napolioni said that he was told that it was not normal to wear one in the rise because the lanyard was too restrictive.

67              I also briefly summarise other relevant evidence hereunder.

68              Mr Szwedzicki received no written proof that Mr Porter or Mr Napolioni had formal training on Alimak raise mining.

69              Mr Johnston gave evidence of a very brief assessment, in the formal sense, of Mr Porter, but he did say that the assessment, in a real sense, occurred usually over a long time.  There were no records of periodic or daily or weekly checks by a shift boss available.

70              The Alimak miners confirmed to Mr Szwedzicki that they did not use safety lanyards.  There is no need for having fall preventing equipment if there is no overbreak, because then there is no chance that a miner can fall when everything is done according to the design.  In this instance, as was obvious and I observe, there was an overbreak, there was a gap, there was no safety lanyard available or worn, and Mr Napolioni fell 45 feet to the bottom of the rise.

71              Mr Szwedzicki said that he did not believe that there was any basis for the prosecution of Mr Porter because:-

 (a) There was no serious injury.

 (b) It was not just his responsibility to make a safe workplace.

72              He also gave evidence that Mr Porter told him that he (Mr Porter) had been given a copy of the manual of the Eltin Underground Operations Alimak raise climber (see pages 162-163(AB)).  In this case, he observed that, whilst in the Mining Act (presumably Northern Territory) it is specified that the mine manager should visit the mine at least once a week (as I understand his evidence).  Further, the shift boss should visit the actual rise at least once a week at the top.  There was no evidence that this was done.

73              Mr Sime said that he was unable to dismiss Mr Martin or enforce compliance by the Alimak crews, attributing this responsibility to Mr Johnston.  He was unequivocal in his evidence that it was Mr Porter’s responsibility to train Mr Napolioni because he was a team leader, a supervisor, a leading hand.  Mr Martin, in his opinion, was not doing his job by allowing unsafe practices and he would have liked to have sacked him as well.

74              The day after the accident, Mr Sime found a misfire on the wall of the rise.  Mr Sime said that Mr Porter proved to him that he did not act as a safe and competent trainer (see page 22(AB)).  Mr Johnston corroborated the evidence of Mr Sime that Mr Porter, as Alimak Leader, had control of what happened in the rise.  He said he was the leader up in the rise:  “He was responsible for their safety during the shift”, and alleged that he was not under Mr Johnston’s direct supervision.  He said the Alimak Leader is “the guy who watched out for the set up” (see page 240(AB)).  The most serious infraction was to have a face with misfire left in it.

75              It is quite clear on the evidence and it was open to find, particularly given the preference of the Senior Commissioner for Mr Sime’s and Mr Johnston’s evidence, that Mr Porter admitted and, indeed, with the exception of the “rattling out” of misfires, he admitted them all in evidence at first instance and was guilty of all of the breaches alleged against him.

FINDINGS AT FIRST INSTANCE

76              The Senior Commissioner adverted to a conflict in the evidence by and on behalf of the respective parties to the proceedings.  In particular, there was marked conflict between the testimony of Mr Porter and that of Messrs Sime and Johnston.

77              The Senior Commissioner preferred the evidence of Messrs Sime and Johnston to that of Mr Porter, as being the most reliable.  It is reasonable to infer that he preferred their evidence to that of Mr Napolioni in the case of any conflict, even though he makes no mention of Mr Napolioni’s evidence (see Abalos v Australian Postal Commission [1990] 171 CLR 167).  He also accepted the evidence of Mr Szwedzicki.

78              The Senior Commissioner found as follows:-

 (1) That, at all material times, Mr Porter was employed as an Alimak Leader.

 (2) That, as such, he was responsible to oversee the activities of Mr Napolioni, at least while they were working together underground.

 (3) He was, in effect, a leading hand.

 (4) That, as part of the induction process at the mine, Mr Porter’s attention was drawn to the Alimak Manual, of which he, “appears to have admitted” to the inspector, had been given a copy.

 (5) Mr Porter underwent and passed a test of competence based on the Alimak Manual in April 1999.

 (6) Mr Porter was inducted as to the safety requirements of the mine at Callie, as  he admitted.

 (7) Despite Mr Porter’s claims to the contrary, the Senior Commissioner accepted the evidence of Mr Sime that part of that process involved answering questions regarding safe working practices underground.

 (8) Mr Porter was given the Safety Handbook as part of that induction process.

 (9) With the possible exception of the complaint regarding the profile of the rise, the Senior Commissioner found that Mr Porter was guilty of the misdeeds alleged by Mr Sime.

 (10) That Mr Porter admitted as such when he was questioned about them in the course of the investigation following Mr Napolioni’s fall.

 (11) That the Senior Commissioner did not accept that Mr Porter signed the written warning form under duress, but that he was simply told that, as he had already admitted the accuracy of the allegations, the form would be placed on his file, whether or not he signed it.

 (12) That, even though he was reluctant to sign the form, Mr Porter had previously admitted verbally to Mr Sime that the allegations contained in the form were accurate.

 (13) That there was good reason to dismiss Mr Porter from his employment.

 (14) That Mr Porter was not dismissed simply because he failed to ensure that Mr Napolioni wore the necessary safety gear, but because of a range of transgressions, albeit, which came to light as a result of Mr Napolioni not wearing a lanyard.

 (15) The number and nature of the breaches of procedure indicated, if nothing else, that Mr Porter adopted a somewhat cavalier approach to the safety requirements of work underground which was simply unacceptable.

 (16) As it seemed common ground between the parties, underground mining is, in itself, a dangerous occupation and there is no room to depart from the given procedures as, indeed, is self-evident from the incident involving Mr Napolioni.

 (17) It was common ground between the parties that had Mr Napolioni been wearing the lanyard, as required by the manual, he would not have suffered the fate which befell him on the occasion in question.

 (18) The breaches of procedure were not minor breaches, but breaches which undermined the trust placed in Mr Porter as a competent Alimak miner, to say nothing of his status as an Alimak Leader.

 (19) As an Alimak Leader, he had some responsibility to ensure that Mr Napolioni worked in a safe and proper manner and the manual required miners working on the Alimak platform to wear a fall arresting device.

 (20) Further:-

 (a) Even it were acceptable for an experienced miner such as Mr Porter not to wear a lanyard, he ought to have at least ensured that an inexperienced miner, such as Mr Napolioni, was better protected than appears to have been the case.

 (b) As an experienced miner, he should have ensured that the face was meshed and properly bolted which was not the case on the occasion in question.

 (c) That he did not ensure that the rail on which the Alimak travelled was properly bolted, despite knowing, as is evidenced by the answer given by him in the test he undertook in April 1999, that the proper procedure required two bolts rather than one.

 (21) The procedure which he told Mr Sime he adopted to clear misfires was, as Mr Porter admitted, highly dangerous and unbecoming of an Alimak miner as experienced as Mr Porter.

 (22) On two previous occasions at Callie, Mr Porter was warned for breaches of safety.

 (23) In all the circumstances, the Senior Commissioner found that the decision to dismiss Mr Porter was well justified.

 (24) The Senior Commissioner however found that the manner by which the dismissal was effected was unfair.  This was because:-

 (a) Mr Sime initially dealt with the transgressions committed by Mr Porter by way of giving him a written warning and subsequently by summary dismissal which was, to say the least, inept.

 (b) There was good reason not to dismiss Mr Porter until after the Mines Inspector had conducted his enquiries concerning the incident involving Mr Napolioni.

 (c) It might be questioned whether summary dismissal was appropriate, notwithstanding the seriousness of the breaches and the previous warnings.

 (25) On the evidence, the supervision of underground employees was less than adequate.  There was a culture which appears to have been allowed to exist for some time, presumably by the supervisors, whereby lanyards were rarely, if ever, worn despite the written requirement that they be worn.

79              Notwithstanding the nature and number of breaches of safety requirements or procedure and the fact that this was not the first occasion on which Mr Porter had been admonished for breaches of safety, that the third occasion was within a very short time of the second and, given that Mr Porter was an experienced miner who should have known better, the Senior Commissioner was not convinced, even on balance, that the manner of dismissal was so unfair to render the dismissal itself unfair.

80              The Senior Commissioner dismissed the application at first instance.

ISSUES AND CONCLUSIONS

Discretionary Decision

81              This is an appeal against a discretionary decision, as that is defined by the High Court in Norbis v Norbis (1986) 161 CLR 513 and, more recently, in Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348 (HC).

82              The Full Bench cannot, therefore, interfere with the discretion exercised at first instance unless the appellant establishes that the exercise of the discretion miscarried and that that miscarriage was of the kind described in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU 73 WAIG 220 (IAC)).

83              Further, following Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, the Full Bench on appeal will not interfere with findings of fact made by the Commission at first instance, unless they are made in error or as a result of the Commission having misused its advantage.

Employer’s Duty

84              This dismissal occurred against the background of three contractual obligations:-

 1. (a) The most important obligation of an employer to an employee is directed to the safety of the employee.

  (b) At common law, an employer is under a duty of care to her or his employee and a failure to live up to the obligation may amount to a breach of contract, as well as giving rise to an action for damages in negligence.

  (c) An employer will also be liable for the wrongful conduct of fellow employees within the course of employment.

 3. The employer’s duty is:-

   “to take reasonable care for the safety of [her/his employees] by providing proper and adequate means of carrying out [her/his] work without unnecessary risk .... or by instructing [her/him] in the performance of [her/his] work where instructions might reasonably be thought to be required to secure [her/him] from the danger of injury.... The standard of care for an employee’s safety is not a low one.”

   (See O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229, followed in Nicol v Allyacht Spars Pty Ltd (1987) 165 CLR 306.) (See, also, the recent discussion of the duty in Jones v Persal & Co (A firm) [2000] QCA 386 (unreported) delivered 22 September 2000.)

 4. With all obligations arising under a contract of employment, the duty of care owed to an employee is personal and cannot be satisfied by delegation to a third party, although the delegation is necessary to discharge the duty (see Wilsons and Clyde Coal Co Pty Ltd v English [1938] AC 57 and, for example, Kondis v State Transport Authority (1984) 154 CLR 672).

 5. The obligation is one owed by an employer to all her/his employees as individuals and all of the circumstances relevant to that employee must be taken into consideration (see Paris v Stepney Borough Council [1951] AC 375 at 380, applied in Blackman v Commonwealth (1978) 20 ACTR 33).

 6. The standard of care does not amount to a guarantee of safety of the employee.   “It is a matter of balancing the risk and the measures necessary to eliminate it.” (see Latimer v AEC Ltd [1952] 2 QB 701 at 711 per Denning LJ).  The obligation is fulfilled by the exercise of due care and skill, but it is not fulfilled by entrusting its fulfilment to employees, even though selected with due care and skill (see Wilsons and Clyde Coal Co Pty Ltd v English (op cit).

 7. It will be a breach of the duty of care to the employees if the employer does not ensure that the employees engaged are competent to perform the work for which they are engaged.

 8. Employees are expected to do their work in a fashion that is safe and it is the employer’s task to ensure that they are aware of dangers and that they are carrying out the job in a safe manner.

 9. The same principle governs the employer’s obligation to provide a safe place of work.

 10. The same standard of care applies with plant, tools or appliances.  This will require an employer to have a system of inspection capable of revealing hazardous factors which may be present when the plant and equipment provided to employees are in use (see Pearce v Round Oak Steel Works Pty Ltd [1969] 3 All ER 680).

 11. The obligation upon an employer to select competent staff, to provide them with proper plant and appliances and a safe place in which to work are combined to oblige an employer to co-ordinate each of these duties within a safe system of work (see Raimondo v South Australia (1979) 23 ALR 513 and Commissioner for Railways v Ruprecht (1979) 142 CLR 563).

 12. Failure to meet the standard of care imposed by the common law may not only expose the employer to the risk of a damages action for breach of contract or negligence, but may also provide evidence of a breach by the employer of a duty imposed by statute (see, generally, the discussion of this obligation in “The Law of Employment” (Fourth Edition) by Macken, McCarry and Sappideen (at pages 120 – 127).

85              The employer’s duty is, of course, an implied duty.  In this case, as I have observed above, there is, too, an express term in the safety manual to that effect.

The Employee’s Duty

86              An employee has a general duty to exercise reasonable care in carrying out the employment.

87              This obligation is implied in tort and in contract (see Matthews v Kuwait Bechtel Corp [1959] 2 QB 57).

88              Where harm results from the conduct of an employee in the course of his employment, both the employer and the employee will be liable to a fellow employee (see Lister v Romford Ice and Cold Storage Co. Ltd [1957] AC 555; Kashemije Stud Pty Ltd v Hawkes [1978] 1 NSWLR 143) (see, generally, the discussion of this obligation in Macken, McCarry and Sappideen (op cit) at pages 134-135).

89              In this case, too, there is an express duty of care laid upon the employees by the two Alimak manuals to which I have referred above.

Summary Dismissal – Was it Justified?

90              This was a dismissal which was plainly summary.  Whilst the onus lies on the appellant at all times to establish that the dismissal was unfair within the principles laid down in Miles and Others t/a Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC) (“Undercliffe Case”) (see also RRIA v CMEWU 69 WAIG 1027 (FB) (“Parker's Case”), the onus lay upon the respondent employer to establish that the summary dismissal was justified.

91              The question then arises whether, if the summary dismissal was justified as a matter of law, the right to dismiss was exercised harshly, oppressively or unfairly.

92              It is a notorious fact that underground mining is a dangerous occupation.  It is clear to me that the safety manual was part of the contract of employment and that its terms were brought to the attention of all employees and the Senior Commissioner was entitled to so find.  The safety manual required expressly that Mr Napolioni work safely, that Mr Porter work safely, and that the employees have care for their own safety.

93              Since the Senior Commissioner found that Mr Porter was given the safety manual as part of the induction process, as it was clearly open to find, it was also open to find that the manual and/or the Alimak Manual formed part of the terms and conditions of Mr Porter’s employment.

94              The Alimak Manual of which, it was open to find, Mr Porter knew or ought to have known the contents, being a leader in Alimak operations, required that employees in situations where they were working at a height without protection on the platform should have a safety harness or a safety attachment on.

95              It was also clear, on all of the evidence, even Mr Porter’s, but clearly that of Mr Sime and Mr Johnston, that, as the Alimak Leader, Mr Porter was responsible not only for his safety but that of the trainee, Mr Napolioni.  That safety was not ensured by his wearing a safety harness, called the safety lanyard, at the time of the accident.

96              This was the case, even though Mr Porter had noticed the gap at the edge of the platform.  As Mr Porter admitted, and as was obvious, Mr Napolioni would not have fallen so far, in particular, he clearly would not have fallen 45 feet to the earth, if he had had on a safety lanyard.  It is clear, too, and it was open to find, that Mr Napolioni should have taken responsibility for his own safety by wearing a lanyard, but Mr Porter had responsibility to ensure this, as the Alimak Leader responsible for training including training on matters of safety.

97              That, of course, without direct evidence of it consistent with and implied in his duties as an Alimak Leader (and there is always a leader in a team like this) (see Mr Porter’s evidence).  It was not in issue that his position was, as the Senior Commissioner found, similar to that of a leading hand.  Generally, however, it was open to find, on Mr Sime’s and Mr Johnston’s clear evidence, that the Alimak Leader was responsible for training, safety and the operation in the rise, including bolting, meshing, dealing with misfires, blasting, profiling the face, and setting up and operating the apparatus safely and carefully.

98              It is quite clear that, during Mr Wotherspoon’s shift and Mr Porter’s shift, there was no safety lanyard on the platform.  There was no preparation, therefore, for an eventuality which required the use of a safety lanyard, even if it were permissible not to wear the same some of the time on the platform.  Further, even this was expressly required by the safety manual and the  Alimak Manual, there was no supervisor to enforce it or no supervisor with direct responsibility because Mr Martin was away.

99              Whilst Mr Sime correctly observed that one could not ascend the Alimak whilst it was working without stopping to check workings and safety matters, there is no evidence that work on the platform was at all checked, otherwise the absence of the safety lanyards would have been discovered.  There was supervision by Mr Sime in the rise itself.  He found the misfires.  It is also clear that the absence of Mr Martin meant that there was no direct supervision of the Alimak crews, which was an obvious defect; although it is also clear, on the uncontroverted evidence, that Mr Martin’s supervision, when he was at work, was not effective.

100           Mr Martin did not enforce a number of obvious requirements or measures, and his lack of proper supervision might properly have been found to have contributed to the failures of Mr Porter and Mr Wotherspoon.  In his short time in charge, only in excess of two weeks, Mr Sime attempted to change the way in which safety measures and requirements were complied with.

101           To his credit, Mr Porter admitted the allegations against him for the most part.  It is quite clear and the fact that Mr Napolioni fell through the gap 45 feet, that he should have been wearing, and would have been saved by, a safety lanyard.  That this should have been enforced was the responsibility, as Alimak Leader, of Mr Porter, whether he was supervised or not.  Further, as the Senior Commissioner found, even if Mr Porter was entitled to ignore his own safety by not wearing a lanyard (which, in my opinion, he was not), he was required to ensure that an untrained Alimak miner, such as Mr Napolioni, should wear one.

102           Further, on a fair reading of the Alimak Manual, the use of the canopy to protect the top of the Alimak was regarded as very important.  That Mr Wotherspoon and Mr Porter failed to report its unsuitability and/or to ensure that the canopy was fitted before work was done on the Alimak in the rise was a breach of express or implied safety requirements.  Further, Mr Porter, again contrary to what the manual required, did not ensure that the rail on which the Alimak ascended was properly bolted.  Further, Mr Porter did not ensure, as Mr Sime said in evidence, that the face was meshed.

103           Further, Mr Porter told Mr Sime, although he said that he had lied in so saying, it was open to the Senior Commissioner to find, that, in using the air line to clear out misfires, he was using a very dangerous practice and that he had done so, even though he attempted to retract that statement in evidence.

104           Further, or alternatively, these failures were all, singly and collectively, evidence of breaches of an implied duty of care to Mr Napolioni and other employees; and to his employer to work safely.

105           In addition, on two previous occasions at Callie, Mr Porter had received warnings (one written) for safety breaches, one of which breach had resulted in injury to himself.

106           It was clear, too, from his own evidence that, to an unsatisfactory extent, whether prescribed safety measures were taken by Mr Porter were matters which he decided for himself.  That somewhat diluted the fact that the supervision of Alimak employees, as I have observed above, was quite inadequate.

107           The question, therefore, was whether summary dismissal was justified.  The test of what constitutes a summary dismissal is best laid down in recent times by Smithers and Evatt JJ in North v Telecom Corporation Limited (1976) 11 ALR 599 at 609, approved in Gooley v Westpac Banking Corporation (1995) 129 ALR 628 (FCFC).  In Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82 per Dixon and McTiernan JJ, there was a similar approach.  Their Honours said:-

  “Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence.  An actual repugnance between his acts and his relationship must be found.  It is not enough that ground for uneasiness as to its future conduct arises.”

108           The test is whether there has been a breach by the employee of the express or implied terms of the contract which demonstrated an intention not to be bound by those terms and, secondly, assessing whether the breach is sufficiently serious to allow summary termination of the contract.

109           In this case, there was a breach of the implied condition of duty of care to work safely and, as Alimak Leader, to properly train and care for the safety of Mr Napolioni and himself, by Mr Porter, by failing to ensure that he wore a lanyard.  There was also a breach of the express requirement that he wear a safety harness where it was dangerous not to, both in the safety manual and the Alimak Manual.  There was also a failure to obey the directions contained expressly in those documents.  It was open to find that both documents formed part of the conditions of employment of Mr Porter.

110           It was open to find, too, that, as an Alimak Leader, Mr Porter was in breach of the express terms or alternatively, the implied terms of his contract to exercise reasonable care in carrying out his employment, in that he used a dangerous method in order to clear misfires, he failed to report that there was no safety lanyard on the platform, he failed to ensure that there was, he failed to report that the canopy was not fixed on the Alimak, and then worked without a canopy, a “basic component of the machine”, he failed to fix the required number of bolts to the Alimak rail, and he failed to mesh the surface in the rise where he worked.  It was also open to find that he used the dangerous practice of “rattling out” misfires.  He failed in his duty, too, it was open to find, as Alimak Leader, to properly train in safe working or take precautions for the safety of his trainee, Mr Napolioni.  It was also open to find that he failed, as required, to report unsafe conditions or deficiencies in equipment.

111           On 27 July 1999, after his dismissal, Mr Porter, in the crib referred to above, admitted his culpability to Mr Sime.

112           Further, Mr Porter expressed a clear view in evidence that, whether he complied with certain safety requirements was his decision.  In addition, as an Alimak Leader, he should have been able to properly apply the manual in training and been sufficiently aware of its contents to do so.  That means that he should have been aware of the manual and used it.  Further, it was open to find that, for a miner of Mr Porter’s experience, to be unaware of the existence of a manual governing the workings of the machinery and/or practices in which he was an expert, is not a very credible assertion.  This is illustrated by the fact that he well knew that he was required to put two bolts in the rail and to mesh.

113           The responsibility resting on him, because of his implied and express obligations, are not detracted from by any flaws in the assessment, particularly given his undisputed experience and expertise as an Alimak miner.

114           Further, although the breaches of safety requirements for which he was warned were not as serious as some alleged on this occasion, he had been warned and had not changed his ways.  He committed successive breaches of the requirement that he wear safety glasses, for example, even though he had injured his eye by this safety breach previously.  He had also committed a breach of the safety requirement that he wear a seat belt.  He was warned about these breaches by Mr Sime.

115           All of those facts, despite the lack of supervision, properly led the Senior Commissioner in this case to find that the summary dismissal was justified at law.  That it was justified was that, in his evidence, as outlined, and by his actions, Mr Porter left no room but to find that he regarded himself as an arbiter of the necessity to comply with safety requirements.  The number and seriousness of those not complied with and the repetition of breaches, corroborate that.  In this case, his judgment, too, was self evidently defective.

116           Further, it is clear that Mr Porter substituted his own judgment erroneously for that of his employer as to what constituted safe working and, almost recklessly, committed breaches of safety requirements.

117           It is not correct to submit that he did not know what his duties were.  He plainly did, on his own evidence, and his admission to Mr Szwedzicki that he had been given the manual.  That the manual was later to be altered was simply not relevant to any material breaches admitted by him.  It was, in the end, too, irrelevant that no prosecution was warranted.  That involved a question of criminal liability.  The dismissal was effected for contractual reasons and in relation to the contract of employment.

118           Further, the failure of the respondents, one or other of them, to adequately supervise and the breaches of their duty of care, did not absolve Mr Porter from his own obligations under the contract pursuant to express or implied terms.  In the light of the action which Mr Sime took, as a matter of fairness, given Mr Porter’s experience and the responsibility cast upon him and his “sins” of omission and commission referred to above, he was not made a scapegoat, nor would it seem was Mr Wotherspoon.  If he had been made a mere scapegoat, then his dismissal may have been unfair.  However, he alone acted in breach of his duty, express and implied, to exercise reasonable care in carrying out his employment.

119           Further, insofar as there were deficiencies in equipment, which were not causes of the safety breaches (except in relation to the unrepaired canopy or the absence of a safety lanyard), Mr Porter did nothing to report the deficiencies or otherwise remedy the situation.  Mr Porter was responsible for the operations in the rise as a very experienced miner.  True it is that Mr Johnston said that these breaches were out of character for Mr Porter.  However, the breaches were (notwithstanding those factors) so serious in nature and/or repetition and/or number that they warranted a summary dismissal.

120           Mr Porter acted in breach of expressed and implied duties cast upon him by his contract of employment.  He did so in such a manner as to demonstrate an intention not to be bound by those terms of his contract.

Condonation Or Waiver?

121           It was strongly submitted by Mr Lucev, for the appellant, as I understand the submission, that the unsafe practices, one of which led to Mr Napolioni’s injuring himself, were condoned.  As I understand the submission, the employer, having condoned unsafe practices by permitting them to occur, could not now find culpability in Mr Porter, justifying a summary dismissal, or alternatively, to dismiss him in such circumstances constituted unfairness.  If the employer condones the employee’s misconduct, then the right to summarily dismiss the employee will be treated as having been waived.

  “The word (condonation) is used as applicable to a case where a master with full knowledge of a servant’s misconduct continues to retain him in his master’s service...

  The master must be fully aware that the servant has by his misconduct forfeited the right to be continued in his master’s service, which is the correlative of the master’s right to dismiss him, before he can be held to waive that forfeiture.”

 (See Federal Supply and Cold Storage Co of South Africa v Argehrn (1910) 103 LT 150 at 152.)

122           Previous and waived misconduct may be taken into account in determining whether fresh misconduct justifies summary dismissal (see Mills v Industrial Fish Tasmania Pty Ltd (1993) 49 IR 416 and Bowie v South Australian Brewing Co Ltd (1991) 58 SAIR 357; as well as John Lysaght (Aust) Ltd v FIA; re York 14 AILR 517;  McCasker v Darling Downs Co- operative Bacon Association Ltd (1988) 25 IR 107).

123           In the circumstances of this case, notwithstanding defective supervision arising, to some extent, from the absence of the crew’s direct supervisor, Mr Martin, there was some supervision.  For example, Mr Sime discovered the frozen misfires in the rise where Mr Porter and Mr Napolioni were working.  However, lack of sufficient supervision is not necessarily equatable with condonation.  In this case, as an Alimak Leader, an experienced underground miner and an experienced Alimak miner, together with the relative, but not complete, unavailability of the platform to direct supervision, the safe working on the Alimak platform in the rise was put in the direct responsibility of the Alimak crews.

124           Further, there were the manuals which required and particularised methods of safe working.  Mr Sime had warned Mr Porter previously about unsafe practices, as had Mr Martin.  Unsafe practices of a different kind had not been continued.  No supervisor was aware of the unsafe practices and the breaches of express and/or implied duties under the contract of employment for which Mr Porter was dismissed.

125           Within the rationes of the authorities, there was no condonation of or waiver of rights to dismiss, because the breaches were not fully known to the employer.  Further, I do not think that the failure to adequately supervise, although a breach of the employer’s duty, constituted a condonation of breach of its prescribed requirements.  That is particularly so also, given the strong evidence of Mr Sime’s emphasis on safety.  There was, as a matter of law and fact, no condonation.

Was the Summary Dismissal Unfair?

126           The nature of the breaches which he committed alone, but also because Mr Porter was an experienced miner and because he was a leader who ought to have known far better and he did, were sufficiently serious to justify summary dismissal.  As I have observed, those factors were not diluted by the unsatisfactory supervision, because of their nature and Mr Porter’s contractual obligations and experience.  Indeed, it is fair to observe that the failure by Mr Porter to ensure that Mr Napolioni wore a lanyard when, it was open to find, that it was obvious that he should have, may well have been sufficient on its own to justify summary dismissal.  That is accentuated by the fact that Alimak crews were, as Mr Sime said, given direct responsibility for safety in the rise.

127           On the evidence, it was open to find that Mr Porter’s conduct in not complying with directions contained in the manuals (which it was open to find he had received)(see, particularly, his admission to Mr Szwedzicki) and/or his subjection and unsatisfactory approach to safety matters and/or his failure to properly do his job as Alimak Leader (see Blyth Chemicals v Bushnell (HC) (op cit)) and/or his breach of express or implied terms of his contract of employment, particularly to ensure care for his own and Mr Napolioi’s safety, all of which were important matters, was incompatible with the fulfilment of his duty as an employee; or was, properly viewed, destructive of the necessary confidence between employer and employee.  (He was not, as I have observed above, a scapegoat.)

128           There was an actual repugnance between his serious acts and omissions and the relationship of employer and employee and it was open to so find.  So serious was this misconduct, that the exercise of the right by the employer at law to summarily dismiss was not unfair.

129           The question is whether the dismissal was an abuse of the legal right to dismiss.  The Senior Commissioner found that the manner in which the dismissal was effected was unfair, because Mr Sime initially gave Mr Porter a written warning and then dismissed him.  Quite clearly, Mr Sime did not warn him that he was in jeopardy of dismissal.  Secondly, however, as Mr Sime, whose evidence the Senior Commissioner accepted, said he was in an isolated area with no transport out and had to wait for the Mines Inspector, who required Mr Porter’s presence, nor did he wish to have Mr Porter waiting for transport out while terminated and being the subject of farewell celebrations during that time.  He would, as he said, have dismissed Mr Porter the same day as Mr Wotherspoon, but for those facts.  Further, he would have wished to dismiss Mr Martin, if he could.

130           That fact dilutes the factor of the poor supervision and constituted, as the Senior Commissioner found, good reason to dismiss Mr Porter on the day on which he was dismissed.  In this case, the unsatisfactory fact of Mr Prock telling Mr Porter that “you stay, Del’s gone”, which, if said, was misleading, did not justify the Senior Commissioner finding the dismissal unfair, in the context of all of the circumstances of this case, even if it were authorised, he said, by Mr Sime (see page 61(AB)).

131           I am not, however, persuaded that, since this was a justified summary dismissal, the steps referred to in Ground 7 of the Grounds of Appeal were necessary, as a matter of fairness.  Even if they were, my ensuing observations deal with that aspect.

132           I agree that there was some unfairness in those respects, as the Senior Commissioner found.  However, it was not the sort of unfairness, in the light of the substantive reasons for the dismissal which rendered the dismissal so unfair that the Senior Commissioner should have intervened in accordance with the principles in the Undercliffe Case (op cit) (and see Shire of Esperance v Mouritz 71 WAIG 891 (IAC)).

133           I would also observe that, for the reasons I have set out above, the defects in supervision, in the face of Mr Porter’s duties and experience, did not render the dismissal unfair and it was open to so find.

134           There were no submissions to the Senior Commissioner that the dismissal was unfair for reasons other than that summary dismissal was not warranted and for that, the dismissal was procedurally unfair.

135           As the Senior Commissioner found, the number and nature of the breaches of duty, as express or implied conditions of the contract, the fact that this was not the first occasion on which Mr Porter had been admonished for breaches of safety and that this was the third such occasion within a very short time, given that Mr Porter was an experienced miner who should have known better, meant that it was properly open to find that the dismissal was not unfair.  There was no harsh, oppressive or unfair exercise of the legal right to summarily dismiss established.  It was open to so find.

136           I have considered all of the evidence carefully.  I can find nothing which would lead me to find that the Senior Commissioner had erred in the findings of fact which he had made, or that he had misused his advantage in seeing the witnesses.  Indeed, it was open, on a fair reading of the evidence, to the Senior Commissioner to prefer the evidence of Mr Sime and Mr Johnston to Mr Porter where there was a conflict, and I have given some examples of why that is the case above in these reasons.  There was ample credible evidence to support the findings which he made.

137           For all of those reasons, it was open to find as the Senior Commissioner did, giving all relevant factors the weight which he did.  In particular, it was open to find that there was a justified summary dismissal and that the dismissal was not harsh, oppressive or unfair, for that reason or otherwise.

138           It was open to the Senior Commissioner to find as he did.  No error in the exercise of discretion, within the principles in House v The King (HC)(op cit), was established to the Full Bench, as I find.  I do not find any ground of appeal made out.

139           For those reasons, I would dismiss the appeal.

CHIEF COMMISSIONER W S COLEMAN:

140           I have had the advantage of reading the Hon. President’s draft reasons for decision.  I agree that the appeal should be dismissed.

141           On the evidence before him it was open to the Senior Commissioner to find that the respondent employer had discharged the onus of establishing that there were reasonable grounds for summarily terminating the appellant’s employment.  In this respect the appellant’s breaches of safety were found not to be minor, but of such seriousness that the trust between the employer and the employee had been completely undermined.

142           Notwithstanding misgivings concerning aspects of the respondent’s safety practices, the inadequacy of supervision and the ineptness with which the summary dismissal was effected, the Senior Commissioner determined  that in all the circumstances the dismissal was not unfair.

143           For the reasons expressed by the Hon President there is nothing to show that the discretion vested in the Senior Commissions miscarried (House v The King [1936] 55 CLR 499) nor indeed is there any basis upon which the Full Bench should interfere with findings of fact made in the first instance.

COMMISSIONER S J KENNER:

144           I agree that the appeal should be dismissed for the reasons outlined by the President in his reasons for decision which I have had the opportunity of reading in draft form.

145           In my view the appellant committed a clear breach of the respondent’s safety policy and procedures for the Alimak operations.  He also failed in his duty of care at common law to take reasonable care for both himself and co-employees.  His duty to take such care was heightened in the circumstances before the Commission at first instance in that he was a very experienced Alimak operator who was the team leader responsible for a trainee operator, Mr Napolioni.  As a result of the appellant’s breach of safety obligations, Mr Napolioni was seriously injured.  In all the circumstances in which the accident occurred, it should have been obvious, as a matter of common sense, let alone as required by the respondent’s safety procedures, that both the appellant and Mr Napolioni should have been wearing fall arresting harnesses.

146           In my view there was no appellable error in the exercise of the Senior Commissioner’s discretion as that issue was recently considered by the High Court in Coal and Allied Operations Pty Ltd v. The Australian Industrial Relations Commission (2000) 74 ALJR 1348.  The respondent did not abuse its right to dismiss the appellant in all the circumstances of this case.

THE PRESIDENT: 

147    For those reasons, the appeal is dismissed.

Order accordingly