WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS

APPLICANT

 -v-

 HENRY WALKER ELTIN PTY LTD

RESPONDENT

CORAM COMMISSIONER S J KENNER

DELIVERED TUESDAY, 9 APRIL 2002

FILE NO/S CR 203 OF 2001

CITATION NO. 2002 WAIRC 05198

_________________________________________________________________________

Result Application dismissed.

Representation

Applicant Mr T Daly

Respondent Mr T Smetana of counsel

_________________________________________________________________________

Reasons for Decision

1. This is an application referred pursuant to s 44(9) of the Industrial Relations Act 1979 (“the Act”) by which the applicant alleges that its member, Mr Tim Nichols, was harshly, oppressively and unfairly dismissed by the respondent on or about 7 August 2001 from the position he occupied with it as an underground miner.  The applicant seeks relief by way of an order of compensation to the maximum available under the Act.

2. The respondent objected to and opposed the claim.

3. Mr Daly represented the applicant and Mr Smetana of counsel appeared for the respondent.

Background

4. The background to this matter is essentially as follows.

5. Mr Nichols commenced employment with the respondent at the Kanowna Belle mine on 7 December 1995.  He was initially employed as a safety and training coordinator and subsequently resumed his former occupation as a jumbo operator. He was subsequently transferred to the Silver Swan mine as a jumbo operator.  He was dismissed by the respondent by payment in lieu of notice on 7 August 2001 for working under unsupported ground, contrary to the Mines Safety and Inspection Regulations 1985 (“the Regulations”) and the respondent’s policy in relation to same.

6. The respondent also said that there were other safety breaches apparent in Mr Nichols’ employment record that contributed to its decision to dismiss him.

7. It was the applicant’s case that whilst not in any way seeking to derogate from the importance of safety in the mining industry, if the Commission were to accept that Mr Nichols was working too far out from safe ground, the circumstances of this matter did not warrant the dismissal of Mr Nichols. The applicant also challenged some of the prior safety incidents complained of by the respondent.

Evidence

Incident of 7 August 2001

8. Mr Nichols testified that on 7 August 2001 he and his “nipper” Mr Rule were working underground at the 1200 level.  The term “nipper” describes the assistant to the jumbo operator.  He said they got the jumbo into that level, set it up and started work.  This involved first scaling the roof to remove loose rocks.  Mr Nichols said they then put two rows of rock bolts in and two sheets of mesh up.  This was followed by another row of rock bolts.  A further row of holes were also drilled further out the front from where they were working.  Mr Nichols said that he and Mr Rule then took two sheets of mesh to the front of the area to tie them together prior to fixing them to the roof.

9. At this point Mr Sime, the then site manager for the respondent, who was at the 1200 level on a regular inspection of the mine, saw Mr Nichols and Mr Rule and said they “were too far out”.  Mr Nichols testified that the foreman Mr Lawrence, was also present on the inspection.  Mr Nichols said that he was told by Mr Sime to go to the surface with Mr Rule.  Once up there a discussion took place in which Mr Sime told Mr Nichols he was working on unsupported ground and he said to him “piss off”.  An argument developed between them and Mr Sime said that he could not send Mr Nichols back underground because of what had happened.  Apparently there was some discussion about Mr Nichols applying for positions at the respondent’s other locations.  Mr Nichols was adamant in evidence that he had three rock bolts in front of him past the mesh he had already put up, at the time of this incident and therefore he was not working on unsupported ground.  He did concede however that he was working in front of the mesh and that if the rockbolts were not in place he would have been on unsupported ground, contrary to company policy and the Regulations.

10. Mr Rule also gave evidence.  He said that once the mesh was put in place there were three rock bolts without plates put in which were about one metre in front of Mr Nichols when he was seen by Mr Sime.  Mr Rule testified that this was the practice engaged in by himself and Mr Nichols. 

11. The account given by Mr Sime as to what he saw at the time of the incident was very different.  He testified that he was engaged on a usual mine tour with the client represented by Mr McGowan and others from the respondent including a foreman Mr Lawrence.  Mr Sime said that they got to the 1200 level and went to the location where Mr Nichols and Mr Rule were working.  He said the area was very well lit and the jumbo’s lights were on.  According to Mr Sime “jumbolts”, which were being used by Mr Nichols at the time, are 43mm in size and very easy to see.  When he saw the two men working he testified that he said words to the effect “what the f… are you doing working in the front of the jumbo” and said that there were no bolts in front of Mr Nichols and Mr Rule.  He told both of them to get back and to see him on the surface.  He was emphatic that there were no plates or bore holes past the mesh.

12. Once on the surface he told Mr Nichols what he had seen and that he and Mr Rule had been working under unsupported ground. According to Mr Sime, Mr Nichols did not challenge this at the time.  Mr Sime said that he was very upset with what Mr Nichols was doing.  Mr Sime testified that because of the seriousness of the safety breach and that Mr Nichols had had prior safety breaches and was a senior and experienced operator, he decided that he was to be dismissed.  In light of Mr Rule being inexperienced and subject to the direction and control of Mr Nichols, he was given a final written warning.  A report of the incident prepared by Mr Sime following the dismissal was tendered as exhibit R3.  He also prepared a sketch of the scene which was tendered as exhibit R4.  This showed both Mr Nichols and Mr Rule at the end of mesh being tied together preparatory to installation, working beyond installed mesh and bolts.

13. Mr Sime testified that he went back down to the site after Mr Nichols’ dismissal for a further inspection and confirmed his initial decision to dismiss.

14. Mr McGowan, the clients’ representative on the site, was called to give evidence. He confirmed that the area where Mr Nichols and Mr Rule were working was well lit.  He said that the roof was meshed some three to four metres from the face and past this there was nothing but “bare backs”.  He said that Mr Nichols was working some five to six metres in front of him.  Mr Nichols was working in an area that had no support. Mr McGowan said that Mr Lawrence was behind him at the time.  Mr McGowan, on seeing this, said to Mr Lawrence “to do something about it”.  He testified that he was looking at the roof between the mesh and the face and could not see any bolts or holes.  He testified that jumbolts are a dark/black colour and the roof a pale colour.  If there had been bolts in the roof he said he would have seen them.  Exhibit R4 was put to Mr McGowan and he said this accorded with how he recalled the site.

15. Also called were Mr Lawrence and Mr Murison.  Mr Murison was the supervisor responsible for Mr Nichols’ shift.  He said that Mr Nichols had generally a good approach in relation to safety.  He was at the bottom of the decline when he got a call from Mr Lawrence on the radio to go to the site.  He saw Mr Nichols and Mr Rule who said that Mr Nichols was going to be dismissed.  There was a discussion on the surface involving Mr Murison, he thought, in Mr Lawrence’s office.  He was initially not happy with the situation because it had been taken over by others and he was the supervisor.

16. Both Mr Murison and Mr Sime then proceeded underground to inspect the area again.  Mr Murison testified that he had clamed down by this stage and looked at the work area.  Mr Sime pointed out footprints near the face that he said must have been Mr Nichols’ and Mr Rule’s.  On examining the roof area Mr Murison said that he could see that bolted mesh had been put in place.  The “backs” had been well scaled according to Mr Murison but he could not see anything else past the mesh to the face.  He said that he did not see any bolts beyond this point.  The roof was clearly visible on his evidence. 

17. The foreman Mr Lawrence testified that when the group got to the worksite on the inspection, Mr McGowan walked past him.  On seeing Mr Nichols and Mr Rule in the positions they were working he came back to him and said words to the effect “what are you going to do about this?”  Mr Lawrence testified that he then walked around to the other side of the jumbo at which point Mr Nichol jumped off it and said words to the effect “I don’t care if you tramp me I’m crook as a dog”.  Mr Lawrence said that he replied to Mr Nichols that “he had tramped himself”.

18. It was Mr Lawrence’s emphatic evidence that he had a clear view of the roof and where Mr Nichols was working there was no ground support.  He estimated that Mr Nichols was about two metres out from the support.  Mr Lawrence said that after Mr Nichols had been dismissed he went back down to the site to take some measurements and photos.  Unfortunately it seems that because of a camera malfunction, only one photo was taken of the extended booms of the jumbo and the ends of the mesh in front of it.  This was exhibit R11.  Mr Lawrence testified that on this inspection he thoroughly checked the roof and there were no rock bolts or drill holes in the area in question.

19. In relation to this incident, the evidence of the applicant conflicts with that led by the respondent.  Having heard and observed the witnesses give their evidence and having regard to the degree of corroboration of Mr Sime’s version of the events, whilst there were some discrepancies, I prefer the respondent’s evidence to that of the applicant.  All those called by the respondent confirmed in their evidence that at the material time there were no rockbolts in the roof above the area where Mr Nichols was working.  The evidence was and I find that Mr Nichols was working in an area of unsupported ground which is prohibited under the Regulations and the respondent’s policy.  This was a serious and potentially fatal safety breach.

Other Incidents

20. There was evidence led as to other incidents preceding the events of 7 August 2001 involving Mr Nichols. I have had regard to all of this evidence.  It was the respondent’s case that between October 2000 and August 2001 there were some five safety breaches, including the unsupported ground incident, involving Mr Nichols.

21. The first incident involved the applicant and an Orica explosives truck.  This occurred in May 1999.  Mr Nichols was moving the jumbo in the mine.  He said that he called over the radio to advise he was on the move but came across an Orica truck.  Mr Nichols said that he applied the brakes but the truck kept moving.  According to Mr Nichols the jumbo skidded in some water and the booms came to within one to two metres of the truck’s windscreen.  Mr McDonnell, a storeman, was in the truck at the time.  He testified that he saw the jumbo but did not hear anything on the radio.  He put the truck into reverse but the jumbo kept coming towards him.  Mr McDonnell said the booms came very close to the windscreen of the truck and he considered it a very dangerous situation.  When he got back to the surface he reported the incident as a serious safety matter.

22. The second incident occurred in or about October 2000 when Mr Nichols was given a written warning for failing to wear safety glasses, contrary to safety policy.  This was exhibit A1.  This was not disputed by Mr Nichols but he did say that he was not wearing them because they interfered with his ability to see rockbolts.

23. The third incident occurred in or about July 2001 when Mr Nichols was given a further written warning in relation to working in an area of insufficient ventilation and also for not wearing safety glasses.  This warning was exhibit A2. Mr Nichols testified that on this occasion he was working in area 935 and was approached by Mr Wilson, an engineer and the ventilation officer for the respondent and told to move because ventilation readings indicated there was insufficient air where they were working.  Mr Wilson testified that there were kinks and holes in the ventilation bag and he told Mr Nichols to either fix it or move.  Mr Wilson also said that Mr Nichols expressed the view that he was costing him money.  It was common ground that payment by results formed a substantial component of Mr Nichols’ remuneration.

24. Mr Nichols then moved to the 1200 level and commenced working there.  A short while later Mr Wilson arrived and took more readings.  At this time Mr Nichols was working with his nipper and the jumbo around the corner about 20 metres away from where the vent was located.  Mr Wilson testified that while the reading was satisfactory at the end of the vent bag, there was no air movement where Mr Nichols was working.  Also, Mr Nichols was not wearing his safety glasses.  I pause to note that Mr Nichols conceded that this was a dangerous practice as rocks could spit out and cause an eye injury.  Readings taken by Mr Wilson were tendered as exhibits R13 and R14 respectively.  It was Mr Wilson’s evidence that he gave Mr Nichols the warning because he was working in an area with insufficient ventilation before he arrived to do the readings at the 1200 level.  It was also Mr Wilson’s evidence that the minimum ventilation requirements were posted on the noticeboard for all to see.  A copy of the notice and a copy of a photo of the noticeboard were tendered as exhibits R15 and R16.  Exhibit R18 was a diagram of the 1200 North area with Mr Wilson’s notation “satisfactory flow needs extending!!”.  It was the latter issue that was Mr Wilson’s concern.

25. A further incident occurred when Mr Lawrence gave Mr Nichols a warning for not hanging up the cables for the jumbo which Mr Lawrence found on the ground.  This incident was denied by Mr Nichols.

Conclusions

26. As a matter of general principle, the well established test as to whether a dismissal is harsh, oppressive, or unfair, is whether the right of the employer to dismiss an employee has been exercised so harshly or oppressively such as to constitute an abuse of that right:  Miles v The Federated Miscellaneous Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1985) 65 WAIG 385.  Additionally, in assessing a claim such as the present matter, it is not the province of the Commission to assume the role of the manager, but to consider the dismissal objectively and in accordance with the obligations imposed on the Commission pursuant to ss 26(1)(a) and 26(1)(c) of the Act:  Northwest County Council v  Dunn (1971) 126 CLR 247 at 262.  In objectively assessing the circumstances of the case, the practical realities of the workplace need to be considered and a common sense approach to the application of the statutory provisions should be adopted:  Gibson v Bosmac (1995) 60 IR 1.

27. It is also the case that safety obligations have been treated most seriously by this Commission and other industrial courts and tribunals in Australia.  In Porter v Eltin Underground Operations Pty Ltd (2000) 80 WAIG 5348 it was said at 5356-5357 by Sharkey P (Kenner C agreeing) in relation to the duties of an employer and employee at law:

“Employer's Duty

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

(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.

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.)

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).

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).

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).

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.

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.

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

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).

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).

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).

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

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

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

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).”

28. I respectfully adopt and apply these observations on the law in this matter.

29. In my opinion, Mr Nichols, although there was some evidence to suggest he had in the past been safety conscious, was prone to cut corners and compromise safety obligations on the job.  I accept that the incidents that occurred prior to 7 August 2001 did occur largely as outlined in the respondent’s evidence.

30. I have already found that the events of 7 August 2001 occurred in that Mr Nichols was working on unsupported ground in breach of a well recognised and fundamental safety rule in underground mining.  In the context of the prior incidents or indeed taking the incident of 7 August 2001 in isolation, I am of the opinion that it cannot now be said that Mr Nichols’ dismissal was harsh, oppressive or unfair.  I have no doubt that Mr Sime clearly saw as did others at the time, that Mr Nichols was working on unsupported ground which is an extremely dangerous situation.  He acted swiftly and took into account Mr Nichols’ experience and prior record.  I also accept on the evidence that when it was put to him by Mr Sime on the surface, that Mr Nichols did not dispute the fact nor raise the assertion that there were rockbolts between where he was standing and the face.  It cannot therefore be said that Mr Nichols was not affording an opportunity to put his version of the events to the respondent.

31. Whilst it may be said that the dismissal was effected in somewhat of a summary nature, that alone in all of the circumstances of this case does not, in my opinion, render it harsh, oppressive or unfair: Shire of Esperance v Mouritz (1991) 71 WAIG 891.  This does not outweigh the substantive reasons for the dismissal in this case.  It is relevant to observe that the dismissal was effected by payment in lieu of notice and was not a summary dismissal without notice, which in my view it could well have been, given the breach of safety in question.

32. I am simply not able to conclude, on all of the evidence in this matter that Mr Nichols has not been given a fair go all around.

33. Finally I would make the following comment.  It was apparent during the course of the proceedings in this matter, that there is somewhat of a tension between remuneration of employees engaged in underground mining operations being substantially based on performance payments on the one hand, and duties in relation to mine safety, on the other.  I raised this issue with counsel for the respondent during the course of the hearing.  In my opinion, the circumstances of this matter illustrate this tension and that the respondent, and other employers in this industry, may well consider it appropriate to revisit this issue for the future.

34. The application is dismissed.