WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES GONZALO PORTILLA

APPELLANT

-and-

BHP BILLITON IRON ORE PTY LTD

RESPONDENT

CORAM FULL BENCH

 HIS HONOUR THE PRESIDENT P J SHARKEY

 CHIEF COMMISSIONER A R BEECH

 COMMISSIONER S J KENNER

HEARD TUESDAY, 23 AUGUST 2005 AND WEDNESDAY, 24 AUGUST 2005

DELIVERED TUESDAY, 13 SEPTEMBER 2005

FILE NO. FBA 8 OF 2005

CITATION NO. 2005 WAIRC 02604

CatchWords Industrial Law (WA) – Appeal against decision of a single Commissioner – Alleged harsh, oppressive, unfair dismissal – Inconsistency of treatment of employees – Dishonesty – Seriousness of acts of misconduct – Substituted exercise of discretion – Reinstatement – Mitigation of loss – Industrial Relations Act 1979 (as amended), s23A, s23A(3), (4), (5), (5)(a), (5)(b), (7), s29(1)(b)(i), s49, s49(6) – Mines Safety and Inspection Regulations 1995 – Western Australian Mines Safety and Inspection Act 1994 , Part 4, Division 1, s44(1) and (2), s9(1)(a) and (b), s10(2)(a) and (b) – Workplace Relations Act 1996 (Cth),  s170CH(1), (2) and (4)

Decision  Appeal upheld and decision at first instance varied

Appearances

Appellant   Mr D H Schapper (of Counsel), by leave

Respondent   Mr A D Lucev (of Counsel), by leave, and with him Mr A G Rollnik (of Counsel), by leave

Reasons for Decision

THE PRESIDENT AND COMMISSIONER S J KENNER:

INTRODUCTION

1         This is an appeal by the above-named appellant, Mr Gonzalo Ezquerra Portilla (hereinafter “Mr Portilla”), whose full name does not appear above, against the decision of the Commission at first instance, constituted by a single Commissioner, pursuant to s49 of the  Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  He does so on grounds to which we will refer to in more detail hereinafter in these reasons, the grounds being as amended by leave upon the hearing of this appeal.  In deciding whether leave should be granted to amend, it is not necessary to consider the merits raised.  The amendments properly reflect the case which Mr Portilla wished to put to the Full Bench, and there was no submission that to allow the amendments would occasion prejudice to the respondent.

2         The decision appealed against is a decision made on 5 July 2005 whereby the application made by Mr Portilla pursuant to s29(1)(b)(i) of the Act was dismissed.

BACKGROUND

3         Mr Portilla made application pursuant to s29(1)(b)(i) of the Act on 21 December 2004 claiming that he had been harshly, oppressively or unfairly dismissed from his employment by the respondent, BHP Billiton Iron Ore Pty Ltd (hereinafter referred to as “BHPB”) on 2 December 2004.  He was paid five weeks’ wages, purportedly in lieu of notice when he was dismissed on that day.

4         Mr Portilla’s application was heard and determined by the Commissioner at first instance with BHPB opposing the application.

5         There was an amount of documentary evidence at first instance.  In addition, evidence for Mr Portilla was given by Mr Robert William Carter, a mineworker at Finucane Island, and by Mr Portilla himself.

6         The evidence for BHPB was given by Mr Leigh David Cook, Manager of BHPB’s operations on Finucane Island.  There was also evidence given by Mr Mark Leslie Swinnerton, Superintendent of Production at Finucane Island, Mr Robert David Sproule, Employee Relations Coordinator, Asset Development Project, Mr Matthew Daniel Currie, Maintenance Superintendent at Finucane Island, Mr Allen Douglas Armstrong, Resource Coordinator at Finucane Island, and Mr David John Drury, Projects Coordinator at Finucane Island.  All this evidence was given on behalf of BHPB.  Mr Jimmy Chomkhamsing, to whom we will refer to hereinafter, was not called by either side.  Mr Chomkhamsing was a charge hand, also called a chargehand/senior production technician at BHPB, at material times, and an acting supervisor in charge of a shift on 25 November 2004.  He is the stepson of Mr Murray Hunt, a friend of Mr Cook.

7         It is a well known fact that BHPB conducts and has conducted for many years iron ore mining and iron ore export operations in the Pilbara region of Western Australia.  The operation at Finucane Island is part of the processing and export operations carried out at Port Hedland in the Pilbara by BHPB.

8         Mr Portilla had, at the time of his dismissal, been employed by BHPB as a Mineworker – Plant Operator for approximately 27 years.  There was evidence only of his committing one other breach of safety requirements on 16 June 2004, there was no evidence of any other allegedly “poor” conduct, except for the incident which brought about his dismissal.  He had a good record and was a good and experienced worker.

Tagging Regulations and Isolation of Machines and Equipment

9         (See Tab 12 of the appeal book, volume 2 (hereinafter referred to as “AB2”), exhibit R12.)  There are and were, at material times, Tagging Regulations (hereinafter referred to as “the regulations”) relating to the Port Hedland operations of BHPB which include and included operations at Finucane Island and Nelson Point.  The regulations, as we understand what counsel for Mr Portilla said, do not have the force of other rules and regulations made by the company and as authorised by the Mines Safety and Inspection Regulations 1995 (see, for example, the BHP Railway Rules referred to in a number of cases in this Commission).  However, it was quite clear and not in dispute that the tagging regulations consist of precise and mandatory directions by BHPB to employees for safe working on sites at Port Hedland.

10      It was common ground that, for a long time, tagging out and isolating machinery or equipment have been an important part of safe systems of work in the mining industry including BHPB sites.  All BHPB employees, contractors and the contractors’ employees are required to follow these regulations in accordance with paragraph i of the introduction to the regulations.  It is vital that all of these persons fully understand these regulations, thereby ensuring the safety of themselves and others as the regulations prescribe.

11      In the introduction to the regulations, paragraph ii, in very clear terms, duties are cast on supervisors, described as “supervision”, as follows:-

“Supervision are responsible for ensuring that all employees and contractors under their control are fully and correctly instructed in the use of danger tags, Tagging Regulations and systems that control their use.

Supervision SHALL at all times, enforce the use of the appropriate tags and the regulations set out in this document”

12      “Supervision” is defined in the BHPB tagging regulations as “a person or persons directly responsible for administering and/or overseeing an employee or group of employees as appointed under Part 4 Division 1.44(1)(2) of the Western Australian Mines Safety & Inspection Act 1994” (hereinafter referred to as “the MSI Act”).  They are “responsible for deeming a person competent to carry out a task or a work instruction”.

13      It is noteworthy that that regulation requires “supervision” which, on a fair reading, must mean all managers, supervisors, charge hands, senior technicians or anyone supervising employees or employees of contractors to “enforce”, and that is a very strong word, the use of the appropriate tags and regulations.  In other words, relevant to this appeal, Mr Chomkhamsing, who supervised at all times, was bound to enforce the tagging regulations and this meant to prevent Mr Brand, an operator, or Mr Portilla or himself, or any other person including Mr Andrews, from acting contrary to the tagging regulations.  It was common ground that he was required to ensure that his subordinates worked safely and in accordance with directions, policies, regulations and procedures of BHPB related to safety.  His own duty was to do so.

14      An “Isolated Device” is defined in paragraph vii Definitions of the introduction to the regulations as being:-

“A device positively isolated and locked where appropriate and tagged by an authorised person in accordance with BHP Billiton Iron Ore Tagging Regulations.”

15      “Positive Isolation” is defined as:-

“A primary physical barrier designed to protect individuals from unwanted electrical energy or movement of plant.”

16      When a piece of machinery or equipment is isolated it, of course, is not operating and cannot endanger personnel working on or near it.

17      There are danger tags which are identification tags which, when attached to a positive isolation point, identify and record the personal details of individuals working on the isolated plant.

18      What all of this means, too, is that machinery or equipment can be tagged, locked out, or isolated when they are faulty or being worked upon or likely to cause a hazard to persons.  The word “shall” throughout the regulations is understood as mandatory.

19      The regulations contain also quotes from the MSI Act which requires an employer to provide and maintain workplaces, plant and systems of work of a kind that, so far as is practicable, the employer’s employees are not exposed to hazards, and provide such information, instructions and training to the supervision of employees as necessary to enable them to perform their work in such a manner that they are not exposed to hazards.  That is the clear duty of the employer under that Act.

20      The employees also have clear duties under the MSI Act.  An employee must take reasonable care to ensure his or her own health and safety at work and to avoid adversely affecting the safety or health of any other person through any act or omission at work.  The employee is also required to use such protective clothing and equipment as is provided and to comply, so far as the employee is reasonably able, with instructions given by that employee’s employer or the manager of the mine for the employee’s own health or safety of other persons (see s9(1)(a) and (b) in relation to employers and s10(2)(a) and (b) in relation to employees).  These are statutory obligations not BHPB regulations, directions or policies.

21      In other words, to commit a breach of the obligations imposed by s9(1) and (b) and s10(2)(a) and (b) of the MSI Act is for BHPB or an employee to commit a breach of the statute, not merely a direction, policy or regulation of BHPB.

22      It is noteworthy that, under the regulations, “out of service” tags are required to be placed on unsafe or faulty plant to prevent injury to personnel and on an isolation device such as a switch, plug or valve, whenever the operation of the plant could cause damage or injury to personnel (see Part II, regulation 2.2).  There are also “locked box” methods of isolated equipment or machinery, as we have said (see, for example, Parts VI and VII).  There is also provision for safety investigations of breaches and other procedures in relation to tagging breaches.

23      Penalties are provided for under Part VIII of the regulations, including Part VIII, 8.1, which prescribes that the first penalty is a written reprimand for a first offence against regulations 1.2A and 1.2B; three days’ suspension is the penalty for a second offence with a final written warning; and, for a third offence committed within 12 months of the first offence, dismissal is the prescribed penalty.

24      Regulations 1.2A and 1.2B were said to have been breached by Mr Portilla on 16 June 2004.

25      There is nothing in the regulations to prevent BHPB or the employer from using its common law rights to dismiss an employee summarily for misconduct, nor was it so contended.

The Incident of 16 June 2004

26      On 16 June 2004, Mr Portilla’s supervisor for the job which he was required to do was Mr Chomkhamsing.  Mr Chomkhamsing instructed Mr Portilla to clean the slew gear on the SR2 where ore had been piled up blocking the operation of the stacker.  SR2 is one of a number of machines called “stackers” which, by means of a conveyor belt, carry ore from where the trains bring it, and “stack” it on the ore stockpiles.  Mr Portilla asked Mr Chomkhamsing if he could lock out the machine, (ie) lock it out and isolate it while they were working, in accordance with the tagging regulations.  Mr Chomkhamsing, however, said “No”, saying, too, that he, Mr Chomkhamsing, had 40,000 tonnes to put through it.  In other words he did not wish to stop the machine because that would delay the processing of 40,000 tonnes of ore, and thus delay production.  He told Mr Portilla to do what he could to clean it.  He did not tell Mr Portilla not to come out from behind the safety rail or not to complete the cleaning.  Mr Portilla cleaned as much as he could off the slew gear standing behind the safety rail, but was unable to clear all of the ore away.  They then had smoko, and, after smoko, Mr Portilla again asked Mr Chomkhamsing if the machine could be locked out, that is, that a lock could be placed on it and it could not be started up or used whilst they were working on it and whilst the lock was in place.  Mr Chomkhamsing again replied “No”.

27      When they resumed work after smoko, Mr Portilla climbed down onto the machine so that he could complete the cleaning away of the ore.  There is no evidence that Mr Chomkhamsing sought to prevent him.  Before he did so, he spoke to the SR2 driver operator, Mr Euan Bucknall, to tell him that he, Mr Portilla, was working on the machine and that, therefore, Mr Bucknall should not start it up without telling Mr Portilla that he was going to do so.  Obviously, if the machine was operating while Mr Portilla was working on it clearing the slew gear, he could have been killed or badly injured.  That was a matter not in dispute.  In fact, Mr Bucknall did warn him that he was going to set the machine in operation.  As a result, Mr Portilla got off the machine while it operated and then got back on again when it stopped.

28      The machine was never, on this occasion, however, locked out and/or isolated and/or tagged.

29      It was further not in dispute that Mr Portilla, while doing this work worked outside the scaffolding handrails and without a safety harness, as full protection, contrary to the working at heights policy prescribed by BHPB.  This was because his attempt to clean the slew gear on SR2 by standing behind the safety rail was unsuccessful so that he came out from behind the safety rail in order to complete his task.  There was no evidence that Mr Chomkhamsing sought to prevent this occurring.  Obviously, too, Mr Portilla risked serious injury had he fallen from the height at which he was working without the safety gear or the protection of a safety rail. 

30      It was also not in issue that Mr Portilla had breached tagging regulations 1.2A and 1.2B and placed himself in potential danger, as alleged.  Regulations 1.2A and 1.2B read as follows:-

“A A Personal Danger Tag, Hasp and Lock (where they can be fitted) shall be attached to an isolator (eg; switch, plug, decontactor valve, clamp, restraint or locking device) or any Isolation or Earth Device whenever there is a danger of personal injury to yourself from the unexpected operation or movement of plant.  You SHALL ensure the APPROPRIATE isolation devices(s) are isolated correctly.  If in doubt/unclear seek assistance from your supervision.

B You SHALL

• Place your Personal Danger Tags, Hasp and Locks, (where they can be fitted) before you begin work on the equipment.
• Affix a hasp and then lock the hasp and attach a Personal Danger Tag to the lock and retain the key.
• Ensure YOUR Personal Danger Tag is printed legibly with ALL details fully completed.
• If the isolation device is of a type that cannot be locked your Personal Danger Tag shall be affixed to the isolation device.
• If you are in any doubt as to the location of the isolation device contact Supervision.
• The Lock and Hasp can only be removed after all individuals have removed their Personal Danger Tags.

IF IN DOUBT AS TO WHERE AND HOW TO ISOLATE YOU SHALL ASK FOR ASSISTANCE FROM SUPERVISION”

31      It is not at all clear that Mr Portilla had any authority to lock the machine out, and, if he did, in any event, he was actually instructed by his superior, Mr Chomkhamsing, whom he asked to lock it out, that it would not be locked out; or tagged, we infer.

32      Mr Portilla frankly admitted all he had done, when questioned, save and except, as was also not in dispute, that he did inform Mr Cook and others that he was working at a lower height than in fact he was working.  It was not disputed that Mr Cook ascertained that his boot prints going upwards led to and indicated that he had been working at a higher level.  Thus, he misled Mr Cook and other managers on that point.  That he did so was not disputed.  However, Mr Portilla was not disciplined for not telling the truth about the height at which he was working, as the written warning shows, by expressly referring to those things for which he was actually disciplined.

33      Mr Portilla, having performed this task in an unsafe manner, was counselled, disciplined and retrained and issued with a written warning in the following terms:-

“Written Warning

A disciplinary inquiry was conducted on Friday, 18 June 2004 into your actions on Wednesday, 16 June 2004 when you were cleaning on SR2.

As you are aware, failure to attach a personal danger tag to an isolator, when there is a chance of personal injury from the unexpected operation or movement of plant, is a breach of BHP Billiton Iron Ore Tagging Regulations.

In the inquiry, you acknowledged that you had breached tagging regulations 1.2 A and B.  Your actions had the potential of placing yourself in danger and this is not acceptable practice on this site.

Further, no work is to be conducted at height without fall protection such as a safety harness or scaffolding with handrails.

You acknowledged that whilst attempting to clean the slew gear on SR2 by standing on the bogey arm, you were at risk of serious injury in the event that you had fallen.  Again this is not acceptable practice on this site.

Finally, you should follow the instructions that you are given by the Senior Production Technician or Production Supervisor on shift.

In all of the circumstances and in accordance with part 8 of the BHP Billiton Iron Ore Tagging Regulations you are now issued with this written warning.

Should you in future be involved in conduct of a similar nature, you may be subject to disciplinary action up to and including termination of your employment.

As discussed during the inquiry you will also be required to attend a refresher briefing on the BHP Billiton Iron Ore Tagging Regulations and Steps to Zero Harm.

I will advise you shortly regarding an appropriate time to attend this briefing.”

34      That written warning was apparently issued in accordance with Part VIII of the regulations.  After this warning was issued, Mr Swinnerton spoke to Mr Portilla and told him to change his attitude to safety matters.  Mr Portilla assured him that this would not happen again.

The Incident Causing the Dismissal – 21 October 2004

35      On 21 October 2004, Mr Portilla was driving a bulldozer in the course of his employment on the top of a stockpiled heap of ore known as the primary or “western surge stockpile”.  It is also known as “the surge”.  Ore mined in the hinterland is brought by rail to Finucane Island and is then stockpiled before it is processed and shipped out.  On that day, Mr Swinnerton had directed that ore be removed from the primary surge stockpile at Finucane Island to J31 South, because that stockpile was reaching its maximum capacity.  The ore was being removed by a front end loader which was loading the ore onto trucks to be taken away, and working at the base of the stockpile.

36      The primary surge stockpile is fed at the bottom.  There are vibratory feeders at the bottom of the stockpile which draw through the ore and deposit it onto a belt in a tunnel located beneath the primary surge.  Because the feeders vibrate, they shake the ore and cause it to fall so as to be drawn through the mouths of the feeders and away from the stockpile (see the diagram at pages 9 and 10, Tab 10 (AB2)).

37      There are two ways of removing the ore from the stockpile.  The first involves drawing the ore into the feeders and processing it.  The second method is to remove the ore, using a front end loader and trucks and to transport it to a dead stockpile.

38      There are dead stockpiles and live stockpiles.  A dead stockpile can only be accessed by mobile plant; that is front end loaders, trucks, bulldozers and the like.  However, on a live stockpile ore can be removed by using fixed plant such as a feeder or reclaimer.  When ore is being removed by the use of a front end loader, the front end loader operates at ground level and digs the ore from the stockpile, then loads it on another vehicle.  This causes what is called “scalloping” in the stockpile, because the front end loader cannot reach the top of the stockpile.  When a front end loader or loaders is/are working on the stockpile, a bulldozer works at the same time on top.  The bulldozer is used to push ore from the top of the stockpile so that it falls down the side and provides quantities of loose ore for the front end loader(s) to pick up.  This also prevents the scalloping getting too pronounced and potential collapses occurring.  Of course, if the amount of ore on the top is pushed off by the bulldozer, more room is left to stack ore on top of the stockpiled heap of ore.

39      In this case, it was common ground that the members of the shift, including Mr Portilla, were informed before they started work that the feeders would not be working that day because they were subject to maintenance work on them.  In other words, Mr Portilla knew that the feeders would not be working on that day.  He also made that clear in evidence.

40      Mr Portilla, as he was directed to do, was moving the ore with the bulldozer to service a 992 loader which was filling trucks below it and below him.  He was alone and unsupervised.  Mr Portilla dismounted from the bulldozer and walked on the stockpile.  He was seen walking on the stockpile.  He was seen to do so by Mr Cook, Mr Drury and Mr Armstrong and another operator, Mr Mirsad Sulic.  Mr Portilla did so in order to look over the side of the stockpile, he said, in order to see whether there was room below for him to push more ore down from the top of the stockpile.  He was asked by Mr Swinnerton to demonstrate what he had done, very shortly after he was seen on the stockpile and after he had been directed to come down from the stockpile by Mr Hirini.  He then went back up onto the stockpile to demonstrate.  He denied that he had walked on the stockpile and was adamant that he had not got off the bulldozer.  He said that, in fact, he stood on the arm of the bulldozer.  He was adamant, therefore, that he had not walked on the stockpile.  The photographs taken shortly after the incident of Mr Portilla’s demonstration of what occurred bore out that that is what he said happened (see “MLS2”, Tab 6 (AB2) – photograph 21-11:17).  Mr Portilla’s evidence was that, after this incident, when he got home, he decided to lie by denying that he had walked on the stockpile and, as he said also in evidence, he panicked because he was afraid he would lose his job.   As a result, a process commenced which led to his dismissal.

41      Mr Portilla’s actual evidence also was:-

“When I got off the dozer and walking onto the stockpile I just wanted to get the job done.  I didn’t think about whether …. whether …. I should be walking on the stockpile or not.  Later on I realise …. but at this time I didn’t think about it.  If I have thought about it, I have remember I will be …. done it.  I have used the dozer on the stockpile for many, many years and it is easy to forget about not walking on it.”

42      Mr Portilla’s further evidence was that he had panicked and, in his panic, denied walking on the stockpile because he was afraid of losing his job.  It therefore became difficult for him to say that he had, in fact, walked on the stockpile after he had denied it, he said.  However, after the pressure of a number of interviews, it became too much for him and he admitted this act.

43      There was a great deal of evidence about Mr Portilla’s act, the nature of it and his culpability or lack of it.  We have already referred to his initial assertion that he did not walk on the stockpile, but only on the arm of the bulldozer.

44      When, on 18 November 2004, he did at last admit that he had walked on the stockpile, he said that he had stood on the stockpile near to or on the high point of it.  He disputed that he had stood close to Feeder 31.  He asserted that he was safe, standing on the stockpile, because the feeders were not running.  He said that he wanted to look at what No 992 Loader was doing and whether there was much room.  He therefore simply forgot about not walking on the stockpile but agreed that employees are not permitted to walk on top of the feeders.

45      What Mr Portilla did, as he later admitted, was to walk over to the edge of the stockpile just a few metres to see if there was enough ore down below for the front end loader which was loading from the stockpile into the trucks.  The distance, on all of the evidence, which he walked was said to be five metres to 20 metres, depending on which witness gave the evidence.  At all times and in evidence, Mr Portilla denied that he had walked over the feeders or the line of the feeders.  However, the evidence of all of the witnesses for BHPB was that they saw him in that actual position (ie) over the stopped feeder, he having walked to a high point above the level where the bulldozer was.  There was no doubt that there was no company prescribed policy, regulation or direction in writing forbidding employees or other persons to walk on live stockpiles, which it was said this one was.  There was only, put at best, a general understanding.  However, as Mr Portilla admitted in evidence and during the inquiry on 18 November 2004, that he was wrong in walking on the stockpile.

46      There had been signs erected on the stockpile forbidding this, it was alleged, but the only evidence of a sign on or near the stockpile was of one saying that there was no access on the stockpile except to authorised persons.  Thus, as a bulldozer driver operating on the stockpile, Mr Portilla was obviously an authorised person.  Mr Portilla asserted correctly that there were no written prescriptions prohibiting walking on stockpiles.  Mr Swinnerton said that there was a general understanding in the workplace that one was forbidden to walk on live stockpiles because of the obvious danger.

47      It is fair to observe that a stockpile where the feeders are not working and which, one assumes has been tagged out, locked out or isolated because maintenance work is being done, is a live stockpile only in name.

48      It is clear that Mr Portilla had devised rules for himself about walking on stockpiles, those rules being for his own safety.  He was and is a very experienced bulldozer operator, and very experienced in working on stockpiles.  The rules that he had devised for himself were that one did not walk over the feeders, one did not walk on stockpiles at night, and one did not walk on stockpiles when the feeders were going.  He certainly did not walk on stockpiles when the feeders were going, on this occasion.

49      After this incident, in December 2004, Mr Swinnerton issued, for the first time, specific written instructions which were drafted and promulgated prohibiting walking on stockpiles, and new signs were devised and installed which were not written signs, but depicted as a pedestrian crossed out to show that walking on stockpiles was forbidden.

The Investigation of the Incident of 21 October 2004

50      The investigation process consisted of a number of interviews of Mr Portilla by various company managers.  In the beginning, as we have said, he maintained untruthfully that he did not walk on the stockpile, but merely walked on the arm of the bulldozer and he adhered to this version until 18 November 2004 when Mr Daniel Connors, who acted for him, contacted Mr Portilla’s superintendent, Mr Swinnerton, to advise Mr Swinnerton that Mr Portilla admitted walking on the stockpile.

Disciplinary Inquiry – Meeting of 8 November 2004

51      On 8 November 2004, the first meeting of the disciplinary inquiry into the incident of 21 October 2004 took place.  Present were Mr Swinnerton, Mr Sproule, Mr Portilla and his union representative, Mr Shane Swinton (see notes “RDS5”, Tab 4 (AB2)).  Mr Portilla acknowledged, as he was advised, that he understood that, depending on the result of the inquiry, he might be subject to disciplinary action up to and including termination of employment.  He therefore ought to have known that this was a serious matter.  He also admitted at that meeting that he should “never have come off from the dozer cab, not even to clean the windows”.  However, he said, too, that “the company doesn’t put these things clear enough”, in which statement there was some truth.  There was no sufficient clarity until after the written policy was promulgated in December 2002.  He then admitted that he had made a big mistake but referred to the fact that he was told by the supervisor that nothing was running.

52      Mr Portilla also acknowledged, as he was informed, that his conduct during the inquiry would also be taken into account in the making of any subsequent decision.  He agreed that he needed permission from the supervisor to unblock the feeders and unequivocally admitted that “You must not walk on top the feeders”.  He also said quite clearly that he had no permission from anyone to walk on the primary surge, but that he had permission to operate the bulldozer.  He identified a number of hazards which he said “you see”.  A number of relevant hazards were the primary stacker when it is stacking on the stockpile, risks from feeders, noting that there is no risk when one is on the bulldozer, and the creation of cavities in the stockpile by feeders, leading, as we understand it, to the risk of collapses of the stockpile.

53      In the inquiry, Mr Portilla said that it was not safe to walk on the primary surge stockpile any more.  Implicit in that was a statement that it had been safe to do so in the past.  He said that the “only way is to contact control and to walk”.  He did not contact control on this occasion before he walked on the stockpile.  He did say that it is okay to walk on the stockpile and on the edge if the primary stacker boom is at 70 degrees but not over the feeders.  He said that one does not have to walk on the surge to unblock the feeders.  He also agreed that, before a person can walk on the primary surge, the feeders and perhaps the conveyors require to be isolated.  He also admitted that it was not safe to walk on the stockpile if the feeders are working within four metres.  He also said, “If you don’t have to then you don’t do it (walk)”.

54      Mr Portilla said that he had walked on the stockpile in the past when he relieved the other bulldozer driver, but not close to the feeders.  He emphasized that only if the stockpile is down and you can see the feeders do you walk close to them.  He also said that you then call up and walk to the feeders, having parked back from them.  He admitted that he knew of no-one else who walked on the primary surge stockpile.

55      The procedure for being able to walk on the stockpile was clearly identified by him as follows.  The feeders and 326 are locked out and one must have permission from control and the supervisor “to lock out and go ahead”.  He said, clearly, (see question 27) that it was safe to do so when he walked on the stockpile because he was far away from the feeder on the arms of the bulldozer and that he grabbed the blade of the bulldozer.  He then, when asked if he had walked on the stockpile, clearly and unequivocally said “No” (see question 33).

56      Mr Portilla said that he was outside the bulldozer for two to three minutes.  He also said that he did not know why four people had put him outside the cabin of the bulldozer and on the primary surge.  We refer to the evidence of Mr Armstrong, Mr Cook, Mr Sulic and Mr Drury which put Mr Portilla where Mr Swinnerton suggested to him he was during the incident of 21 October 2004.

57      However, Mr Portilla went on to say that, on that day, there was no risk because the plant was not running and because he had run the bulldozer backwards and forwards over the stockpile for hours and the surface was packed like concrete.  He denied that there was any risk of his falling.  In the end, he asserted that his report was correct and that he did not know why four people had seen him walking on the surge as they said.  However, he did add this, “If you want me to say that I walked on the surge then I will if it means this will go away and I can get on with my life”.

58      After that meeting, Mr Portilla went away and thought about matters.  Someone told him, he said, that he should tell the truth.  He then instructed Mr Connors, his union representative, to telephone Mr Swinnerton and advise him that Mr Portilla admitted that he was walking on the primary surge on 21 October 2004.  This admission came about one month after the incident because it was communicated to Mr Swinnerton by Mr Connors on 18 November 2004.

Meeting of 18 November 2004

59      As a result, another meeting in the disciplinary inquiry took place on 18 November 2004 (see notes “RDS8”, Tab 4 (AB2)).  Present were Mr Swinnerton, Mr Portilla, Mr Connors and Mr Sproule.

60      At that meeting and at its commencement, Mr Portilla admitted that he had walked on the primary surge stockpile on 21 October 2004, that he had lied in saying otherwise, and that he had so lied because he was scared of losing his job.  However, he asserted that he did not walk near the feeders because he was in the corner of the stockpile, and did not walk 15 metres from the bulldozer.

61      Mr Sproule said that the purpose of the meeting was to establish where Mr Portilla was located and why on the surge stockpile.  Two high points were identified on the stockpile, one over the top of the feeder line, and one in the southwest corner near the drain, and not over the feeder line, one high point being about two metres higher than the other.  Mr Portilla pointed out that the bulldozer was parked in the southwest corner of the stockpile.  At all times, he maintained that he was standing behind the blade of the bulldozer.  He was then informed by Mr Swinnerton that the three witnesses standing to the east of the stockpile all said that he was in an elevated position in relation to the bulldozer and standing in front of the blade.

62      Mr Swinnerton asked how the bulldozer could have been in that position when the highest point of the stockpile was over the feeder line.  Mr Sproule asked Mr Portilla if he understood that the bulldozer had to be on the east side of the highest point of the stockpile for the witnesses to have seen it.  Mr Portilla’s reply was that he did not know, but that it was where he said it was when he walked to the face of the stockpile.  Mr Portilla said that he had not walked on the stockpile more than two times.  (Of course, had he wanted to find out how much room there was at the base of the stockpile for more ore to be pushed down, then he could have radioed from the cab of his bulldozer and made an enquiry).  Mr Sproule said that the only logical conclusion which could be drawn at that point was that the bulldozer must have been parked on the east side of the high point running across the feeders, which is the only way that the three witnesses could have seen it.

63      All of the four people then went out and inspected the surge stockpile where Mr Portilla pointed out that he was at the high point of the stockpile when standing on it.  The three witnesses were located at right angles to Feeder 31 at Substation 5.

64      When the meeting reconvened, Mr Swinnerton put three conclusions to Mr Portilla and asked him to agree with them.  The conclusions were:-

a)                       The dozer was parked to the east side of the high point.

b)                      Mr Portilla exited the cabin on the western side of the dozer and proceeded to a high point on foot on the surge stockpile.

c)                       Mr Portilla was standing on the ore close to the feeder and close to the live face.

65      Mr Portilla then specifically and clearly admitted standing on the live stockpile near the high point but he denied that he was near Feeder 31.  He then said that he accepted that he should not walk on a live stockpile.  When asked, he expressly admitted that, at the time of the incident, he was aware that he was not allowed to walk on a stockpile, and indeed agreed that it was not safe to walk on a stockpile because the feeders could be running.  On this occasion, Mr Portilla said, he thought it was safe because the feeders were blocked and he had been bulldozing over them and the plant was not running.  He agreed that safety rules must be followed and volunteered that there used to be a sign showing that you did not walk on a stockpile.  He said that, when he got out of the dozer, it never crossed his mind that he was doing the wrong thing.

66      Mr Cook’s evidence was that the face of the stockpile was scalloped, it being alleged that, if the face was scalloped, it was more dangerous.  Mr Drury gave evidence that a loader had been working that face shortly before he saw Mr Portilla.  Mr Armstrong considered that Mr Portilla’s actions were dangerous, but did not consider that the stockpile would collapse.

67      Mr Swinnerton concluded, and so reported, following his investigation as follows:-

“Mr Portilla was standing in close proximity to the edge and the witnesses had also reported that the edge was vertical with evidence of an under-mined face with a concave nature.  Such an edge would be inherently (un)stable.  Further, Mr Portilla had recently pushed ore to the edge, meaning that the ore was likely to be unstable and at risk of collapse.” [Exhibit R6; paragraph 87].

68      Mr Portilla admitted feeling that he knew it was wrong to walk onto the live stockpile, but he forgot.  He also admitted that he had seen nothing indicating any change of the rule, or that anyone had told him otherwise.  He repeated that he lied because he was scared that he would be dismissed because he had done the wrong thing.

69      He admitted that he should not have walked on the stockpile.  He said that after the first inquiry he checked with somebody and they told him to tell the truth.

70      There was then a conversation between Mr Swinnerton and Mr Sulic on the speakerphone in the presence of Mr Connors and Mr Portilla, as well as Mr Sproule.  Mr Sulic said clearly that Mr Portilla’s bulldozer was pretty much standing over the top of Feeder 31.  Mr Sproule then put to Mr Portilla that, in the light of the witness statements and all of the inspections of the area, it was reasonable to conclude that:-

“1. You walked on the Primary Surge Stockpile;

2. The Dozer was parked on the East side of the highest point of the stockpile;
3. You exited on the west side of the dozer and walked to the highest point;
4. You placed yourself at risk by been (sic) in close proximity to feeders and the live face;
5. You were aware that this was unacceptable;
6. You lied during the disciplinary enquiry and you maintained this lie for 3 weeks;
7. You are an experience dozer operator and you are also experienced at working on stockpiles.”

71      When asked if he wishes to comment on these conclusions, Mr Portilla said “No.”

72      At no time during those investigations did Mr Portilla admit that he was not in the southwest corner of the stockpile, nor did he admit that he was anywhere near Feeder 31.

73      He was reminded that his conduct during the inquiry would be taken into account.  The June 2004 disciplinary breach was referred to by Mr Swinnerton and admitted by Mr Portilla.  Mr Connors suggested that the appropriate outcome was that Mr Portilla be stood down for a period of time with loss of pay and a final warning.

Meeting of 29 November 2004

74      On 29 November 2004, another meeting occurred as part of the disciplinary inquiry into the incident of 21 October 2004.  Mr Portilla was asked to put his case, and, in particular, to put his case why he should not be dismissed.  Mr Sproule said that the stockpile was at or below the feeder level.  Mr Connors informed Mr Sproule and Mr Swinnerton that they contended all along, as was later the evidence in the proceedings at first instance, that the bulldozer was parked on a high bench at the west end of the stockpile.  Mr Swinnerton said that this contention contradicted the four witnesses’ statements that the bulldozer was to the east of the feeder line and that Mr Portilla was standing on top of the feeder at the highest point.  Mr Portilla was informed that he was to be dismissed.  Contentions were made by Mr Connors, referring particularly to his undoubted good work and long record of employment with BHPB.  Mr Connors referred to Mr Chomkhamsing as having created conflict since his appointment.

75      After the inquiry meeting on 29 November 2004, Mr Cook expressed himself as in agreement with Mr Swinnerton’s recommendation that Mr Portilla should be dismissed because, despite his length of service, he had committed another recent safety breach where he had endangered himself.  In relation to the first safety breach, he had denied standing at the height at which witnesses had placed him, which denial was untrue.  Thus, he was not, in Mr Cook’s opinion, a fit and proper person, Mr Cook said, to manage his safety on site.  Mr Cook expressed himself as satisfied, given that Mr Portilla had lied and deliberately misled both the safety and initially the disciplinary investigation, that Mr Portilla was aware that what he had done was not permitted, particularly given that he had denied it and that “there are signposts”.  Further, Mr Cook was satisfied, he said, that Mr Portilla was an experienced bulldozer driver, and that there were serious safety consequences up to and including fatality, because he was on a live stockpile with live feeders and near the live working face.  In short, he said that Mr Portilla placed himself in serious personal danger on two occasions within the space of a few months, and, on both occasions, had lied to the investigation.  Mr Cook said that he had concerns that Mr Portilla would again repeat a serious safety breach.

76      Before 2 December 2004 Mr Sproule had a meeting on site (see paragraph 78, Tab 4 (AB2)) with Ms Joneen Scott, the Human Resources Manager, Mr Swinnerton, Mr Michael Evans, the BHPB Vice President Ports, and, by telephone, with Mr Jeffrey Stockden, Vice President Human Resources with BHPB.

77      At the end of the meeting, Mr Swinnerton emailed Mr Cook with the disciplinary inquiry’s findings and recommended that Mr Portilla be dismissed for the following reasons:-

a) That he walked on the primary surge stockpile.

b) That he placed himself at risk by been in close proximity to feeders and a live face.

c) That he was aware that the risk was unacceptable.

d) That he had, during a disciplinary inquiry, maintained the lie for three weeks.

e) That he was an experienced bulldozer driver, experienced in working on stockpiles.

78      At another meeting, on 2 December 2004, attended by Mr Sproule, Mr Swinnerton, Mr Portilla and Mr Connors, the meeting at which Mr Portilla was informed that he was dismissed, Mr Portilla said that he had walked on the stockpile but not over the feeders, that the plant was not running when he did so, and that conditions were safe.  This, he said, he knew from his many years of experience.

79      On 2 December 2004, Mr Portilla was actually dismissed.  The letter of dismissal of 2 December 2004 reads, formal parts omitted, as follows (see “MLS18”, Tab 6 (AB2)):-

“I refer to the disciplinary inquiry conducted on 8, 18 and 29 November 2004 into your actions on 21 October 2004 when you were operating the D10 dozer on the Finucane Island primary surge stockpile.

On 21 October 2001 (sic) it was alleged that you walked on the stockpile without authorisation.

In the Company’s safety inquiry conducted on 21, 22 and 25 October 2004 into the incident, you repeatedly denied that you had walked on the stockpile notwithstanding the fact that a number of witnesses stated that they had seen you do so. Further in the disciplinary inquiry into the incident you continued to maintain that you had not walked on the stockpile.

In fact it was not until 18 November 2004, when the disciplinary inquiry was drawing to a close, that you admitted walking on the stockpile.

Your actions in walking on the stockpile had the potential of placing yourself in danger, which is entirely unacceptable.

Further, as you have acknowledged, your actions were in breach of the Company’s safety protocols.

Your actions in walking on the stockpile justify the termination of your employment particularly given that you received a written warning dated 22 June 2004 for a similar incident where you failed to comply with the Company’s safety requirements and put yourself in danger.

Following that incident you were given further training in relation to safety awareness and put on notice that your involvement in any further incidents of a similar nature may result in disciplinary action up to and including termination of your employment.

In addition your lack of candour in responding to the questions about the incident, in both the safety and disciplinary inquiries, further justify your dismissal.

In all the circumstances, including those referred to above, and having considered all matters raised by you, the Company considers that you are unsuitable for further employment and your employment is terminated in accordance with clause 9(3) of the Award with a payment in lieu of notice.

Please contact HR Services to finalise those aspects of the termination of your employment.”

Some Points of Evidence

80      In cross-examination at first instance, concerning the question of what height or level Mr Portilla was at when he walked on the surge stockpile, Mr Portilla answered that he was standing behind the blade of the stationary bulldozer, that is, behind the bulldozer and not in front of it.  He expressly denied that he was several metres in front of the blade.  He denied that he walked onto the higher level or the western side of the stockpile.  He said that he walked about four steps from where he got off the bulldozer to about three metres from the edge of the stockpile.  He said that it was easy to see where he stood and that he was on the same level as the bulldozer.  He said that he did not walk up the ore that was piled up at the end where the highest point was and he walked up no embankment.  Where he walked was flat, he said (see pages 37 to 43 of the transcript).

81      Mr Portilla said in evidence that he walked to a point about three to four metres from the edge to see how much material was down at the bottom and whether there was room below to push more down.  From the top down, there was an incline of 35o to 40o.  He said that he was looking to see how much material was in the cavity below.  He just had a look and walked back to the bulldozer.  Mr Murray Hirini then contacted him because he had been seen walking on the stockpile and told him to remove the bulldozer from the stockpile.

82      When he was cross-examined, Mr Portilla maintained that he remained roughly on the same level as the bulldozer, that he did not pass the blades of the bulldozer and was about three metres from the edge, having moved a matter of only one metre from the body of the bulldozer.  He did not move any further than that.  Further, Mr Portilla’s evidence was that he was standing in a safe position on the stockpile and that it was packed like concrete.  He admitted that he knew that it was not safe to stand on the stockpile in certain circumstances.  He asserted that what he was doing that day was safe.

83      Mr Cook, in evidence, said that, on 21 October 2004, he was standing between CN45 and the hopper with Mr Drury and Mr Armstrong when the former pointed out to him a man standing on the surge pile.  He said that Mr Drury asked if you were allowed to do that.  They were then standing about 100 metres away, directly parallel to the edge of the stockpile, side on to and in line with the bulldozer operator.  Mr Cook looked over and saw the bulldozer parked some distance away from the live working face edge of the stockpile.  At a distance from the bulldozer on the stockpile, he saw a person who was walking up to the edge of the stockpile at the top level at the leading edge.  The stockpile was almost full and the person was about 17 to 20 metres up.  This person appeared to be looking down at the loader operator on the ground who was working at the live working face of the stockpile.  He also appeared to be above the undermined working face of the stockpile.  That is the protruding edge caused by the face having been “eroded” from underneath.  Mr Cook also said that he, Mr Armstrong and Mr Drury were standing in line with the bottom draw down feeders which were located at the bottom of the stockpile and into which the ore is drawn.  Thus, Mr Cook was able to opine that the person whom he saw walked in a direct line over some of the feeders.

84      The ICAM Report put the height of the stockpile at 10 metres, not 17 to 20 metres.

85      Mr Armstrong gave evidence that they had just come out of Substation 5 and were approximately 80 to 100 metres away from the stockpile at the time.  He, Mr Armstrong, also saw a person standing on the primary or west surge stockpile.  This was a live stockpile which meant that there were live feeders at the base of the stockpile through which the ore is fed.  His view of the person was partly obstructed, but he was located towards the southern end of the stockpile.  He and the other two men moved 10 metres closer to the stockpile and parallel with it.  Mr Armstrong then had a clearer view of what was happening.  He said that it was clear to him that the person was not near the dozer on top of the stockpile, but was standing on top of the ore on the edge or tip of a face which had been worked on by a loader.  However, no loader was working at the time.  The person was 15 to 20 metres from the loader at a higher elevation.  This evidence given by Mr Armstrong was not challenged or shaken.

86      Mr Drury said that, on the same date, he was standing with Mr Armstrong and Mr Cook near the stop sign at the rail crossing next to CN45A discussing matters relating to the operations in the area.  He was facing the area of the primary surge stockpile and noticed someone standing in front of a bulldozer when they were 80 to 90 metres away.  This person appeared to be standing on a bench of ore which was slightly higher than the tracks of the dozer.  This person appeared to be 10 to 15 metres from the dozer and 2 to 3 metres from the stockpile face.  The person was facing outwards.  There had been a front end loader working at the bottom of the stockpile, but it was not doing so at that time.  Mr Drury did not recognise the person.  He confirmed that he said to Mr Cook, “that’s not right, he should not be doing that.”  He also said that Mr Cook appeared to be astonished at what was happening and confirmed that that was not the right thing to be doing.  Mr Drury was not shaken in cross-examination.

Comparison of the Treatment of Mr Portilla with that of Mr Jimmy Chomkhamsing

The incident involving Mr Chomkhamsing – 30 September 2002

87      On 30 September 2002, Mr Jimmy Chomkhamsing, then a charge hand or senior production technician, and Mr R Brand, an operator and his subordinate, were instructed by Mr Michael Regan, their supervisor, to rectify a problem of overloading with ore on conveyor belts 35 and 39.  It is the duty of a charge hand or senior technician to supervise operators under them and to ensure compliance with safety regulations and requirements, and that that was the case was accepted in the course of these proceedings.  They cleared conveyor belt 35 by reversing the belt.  Conveyor 39, however, it was noticed, was “bogged out” (ie) they were not able to clear it.  Mr Regan then attempted to jog the belt to free the ore but this was unsuccessful.  They then decided to hose the ore off the belt.  After Mr Reagan arrived at the tail end of Conveyor 39, a Mr J Purdy, presumably a BHPB employee, asked Mr Regan if the belt had been isolated, Mr Regan then asked the operators, Mr Chomkhamsing and Mr Brand, if the belt had been isolated.  The evidence does not reveal Mr Chomkhamsing’s reply or whether he did reply (see exhibit R5, Tab 5 (AB2)).

88      In any event, there was no evidence that Mr Chomkhamsing had isolated the belt where he and Mr Brand worked.  Indeed, it was clear and not contested that Mr Chomkhamsing had not isolated the belt as required by the tagging regulations.

89      Mr Purdy advised Mr Regan that he had seen Mr Chomkhamsing removing a wedge from the eastern side of the flap on Conveyor 39.  He also reported that Mr Brand had also removed a wedge from the western side of the flap and then climbed onto the guard over the tail pulley of Conveyor 39, to hold up the flap.

90      This incident was investigated and, after the investigation, Mr Chomkhamsing and Mr Brand were taken through the isolation and tagging procedures and instruction on the newly revised isolation and tagging procedures was given to the whole of that shift, on or about 14 November 2002.  They were not warned in any written form or even orally, as Mr Portilla was warned in written from in relation to the incident of June 2004.  They were not suspended or subject to any real penalty.

91      There was, on all of the evidence, a deliberate breach of the tagging regulations and by that breach Mr Chomkhamsing exposed Mr Brand and himself to a risk of death or injury.  Again, Mr Chomkhamsing did so when he had an added responsibility being in charge of the crew as a senior production technician to ensure safe working practices.

The incident involving Mr Chomkhamsing – 25 November 2004

92      On 25 November 2004, Mr Chomkhamsing was in charge of a crew clearing a blockage on the primary stacker.  He was not only a senior production technician in charge of the crew, but he was acting supervisor in charge of the whole shift that night because of the absence of the supervisor.  Before the shift commenced, Mr Swinnerton, at a pre-shift meeting or tool box meeting, specifically instructed Mr Chomkhamsing not to go on the conveyor belt without it being tagged and locked out or isolated.  That is, he should not go on it whilst there was a risk that it could be operating or might commence to operate.  As Mr Swinnerton agreed in evidence (see page 191 of the transcript), when a person is in charge and that person fails in respect of his duty to work safely with the effect that that person and those with him are exposed to risk, then that is an aggravated feature of that person’s conduct.  That was an aggravated feature of Mr Chomkhamsing’s conduct.

93      In particular, Mr Chomkhamsing was in charge of Mr Anthony Colerio, a new employee, but someone with a scaffolder’s ticket, and Mr Steven Andrews, the employee of a contractor to BHPB, on this occasion and during this incident.

94      Before they went to clear a blockage on the primary stacker, Mr Chomkhamsing took no steps to have it locked out, tagged or isolated.  Indeed, it was not tagged by him or anyone.  There is no evidence that he even considered that question.  He called up Mr Colerio, a new employee, to assist with the breakdown in the conveyor belt 31 chute (CN31).  Mr Chomkhamsing opened the chute and hosed through the grid to release ore from the wings of the boom gate.  However, although conveyor belt 30 (CN30) was clear, the chute on CN31 blocked up again and Mr Chomkhamsing called Mr Andrews to assist in the clearing of the blockage.  They all climbed down onto the belt to clear the blockage.  Mr Chomkhamsing passed down the hose and they proceeded to remove the “produce” from the sides of the chute.  This, they continued to do for approximately 30 minutes or as much as one hour.  Mr Andrews and Mr Colerio were then told by Mr Chomkhamsing to clear the belt so that he could start the conveyor to see if the blockage was cleared.  All in all, they worked on the belt whilst it was not isolated, for approximately 30 minutes to one hour.

95      Mr Chomkhamsing then told them to have smoko.  Whilst on smoko, Mr Andrews and Mr Colerio discussed the danger of the machine not being tagged and locked out and Mr Andrews said that he was going to report it.

96      When this matter was investigated, Mr Colerio received a written warning and was required to attend a refresher briefing on the BHPB Tagging Regulations (see “RDS15”, Tab 4 (AB2)).  His actions in failing to attach a personal danger tag to an isolator when there was a chance of personal injury from the unexpected operation or movement of the plant was said to be and was a breach of the tagging regulations.  His actions were characterised in the written warning to him of 1 December 2004 as having placed himself in danger.  He also, on this occasion, as he admitted, conducted work at height without adequate fall protections such as a safety harness which was, as admitted, to put him at risk of serious injury, and contrary to the BHPB safe working at heights policy.

97      When he was interviewed about the incident by Mr Swinnerton on 27 November 2004, Mr Chomkhamsing admitted that they were all down on the belt for 30 minutes to one hour jumping on the belt, hosing it and throwing rocks off the belt, that is, without the belt being isolated or tagged and without safety harnesses.  Thus, the machinery could start up at any time and all three of them were exposed to the risk of serious injury or even death.  Mr Chomkhamsing also admitted that he knew that he was required to lock the belt before getting onto it.  However, as he admitted at the interview, “The first time I just wanted to get the train happening ASAP” (see page 20, Tab 7 (AB2)).  He admitted, too, that this incident could have caused a fatality.  This was the second time that he gave this sort of reason for failing to lock out machinery or equipment (see his answer to Mr Portilla on 20 June 2004).

98      Having said that, however, he then denied that he placed production ahead of safety.  However, his next explanation for not following the safety regulations was “I just wanted to get the train happening, I should have got the boys to lock out and follow the procedure”.  That constituted, as his first answer did, a clear statement that he was putting production ahead of safety, having first denied that that was what, in fact, he was doing.

99      Mr Chomkhamsing then went on to admit that, because he got down onto the belt first, the others had to follow him.  That is as his subordinates they were under his direction.  He said that they did not talk about safety because they “just wanted to get the job done”.  He also said in the interview that he did not report his tagging regulation breach on the primary stacker as he was required to do, because he forgot about it.  This was because there was another and later incident on that shift.  He admitted that there was potential for him to have fallen on the night of the incident.  He also admitted to Mr Swinnerton that, as senior technician and acting supervisor, he had additional responsibilities to manage risk on the shift, saying, “Yes, 100 per cent.  I need to set a good example for the boys”.  He further admitted, “I stuffed up”.

100   However, he gave an untruthful answer in the following exchange with Mr Swinnerton (see page 21, Tab 7 (AB2)):-

“HS. Is the lockout rule the only rule you broke on the night of the incident?

JC. Yes. That is all.

HS. Are you aware of the working at heights policy?

JC. Yes.  You need a safety harness.

MS. Did you wear a safety harness?

JC. No

MS. did you break the WAH policy rules?

JC. Yes”

101   That was his second untruthful answer in the same meeting.  Both, he recanted from at the meeting.

102   Mr Swinnerton said that some of the factors taken into account in determining what disciplinary action to take in relation to Mr Chomkhamsing were as follows:-

a)                    Mr Chomkhamsing admitted the incident immediately and took full responsibility for his actions and was cooperative and truthful during the investigation.

b)                    Mr Chomkhamsing had no disciplinary action, notes on file or any other form of safety or work related issues in the last 12 months prior to the incident.

c)                    Mr Swinnerton also said that Mr Chomkhamsing had received a written warning for a safety breach on 30 September 2002, but that the time which elapsed was deemed to be significant enough “to remove its relevance in this case” (see paragraph 129, page 20, Tab 6 (AB2)).

103   Mr Cook’s evidence of the reasons for the penalty imposed in Mr Chomkhamsing’s case was as follows:-

“51  In respect of the Jimmy Chomkhamsing incident that occurred on 25 November 2004, a number of discussions were held as to whether his employment should be terminated given the seriousness of what had occurred.

52 As part of this process Mr Swinnerton spoke to his supervision past and present and reviewed these comments.  However, the decision was made not to terminate Mr Chomkhamsing’s employment on the basis of:

 (a) his previous work record and ethic;

 (b) his honesty in dealing with the Company during the course of the inquiries; and

 (c) that he was in an acting position at the time.

53 However, given the seriousness of this matter he was demoted from the position of responsibility as senior production technician to production technician.  This also involved a monetary penalty with a loss of income.” [Exhibit R8]

104   Mr Chomkhamsing was issued a written warning also dated 6 December 2004 in the following terms (see Tab 13, page 35 (AB2)):-

“Written Warning

A disciplinary inquiry was conducted on Tuesday, 30 November and Wednesday, 1 December 2004 into your actions on Thursday, 25 November 2004 when you were in charge of the crew clearing a blockage on the Primary Stacker.

As you are aware, failure to attach a personal danger tag to an isolator, when there is a chance of personal injury from the unexpected operation or movement of plant, is a breach of the BHP Billiton Iron Ore Tagging Regulations.

In the inquiry, you acknowledged that you had breached the tagging regulations.  Your actions had the potential of placing yourself and others in danger and this is not acceptable practice on this site.

Further, no work is to be conducted at height without adequate fall protection such as a safety harness.  You acknowledged that by standing on the boom belt and directing others to stand on the boom belt to clear the obstruction placed yourself and others at risk of serious injury or death in the event of a fall.  Again this is not acceptable practice on this site.

Your actions in this regard were entirely unacceptable given that as the Senior Production Technician you are required to ensure that your actions and those of any employees and contractors under your control are carried out safely and in accordance with site standards and procedures.

In light of all of the circumstances you have been removed from the position of Senior Production Technician and will be reclassified to a Production Technician on “C’ Shift effective from Thursday, 2 December 2004.  Your rate pay will be adjusted accordingly.

Should you in future be involved in conduct of a similar nature, you may be subject to disciplinary action up to and including termination of your employment.

You will also be required to attend a refresher briefing on the BHP Billiton Iron Ore Tagging Regulations prior to conducting any activities on site that require you to isolate plant and/or equipment.

I will advise you shortly regarding an appropriate time to attend this briefing.

Please sign and complete the attached Contract of Employment detailing your changed role and salary details.”

105   Mr Chomkhamsing was moved from B shift to C shift.  He had been spoken to on multiple occasions because there had been complaints about certain terms which he had used in conversation which irritated his fellow employees.  On the evidence, that fact may have played a part in the transfer.

FINDINGS AT FIRST INSTANCE

106   The Commissioner at first instance found as follows:-

a)                    That it was improbable that Mr Portilla was standing in the position which he said that he was standing.

b)                    That three other persons, Mr Armstrong, Mr Cook and Mr Drury, saw him standing in a position near the edge of the stockpile and in a higher position to the bulldozer.  Mr Swinnerton entertained the possibility of a parallax error but discarded the idea.

c)                    That Mr Swinnerton’s conclusion referred to above was the right conclusion.

d)                    That because that finding was correct, Mr Portilla’s actions were inherently dangerous and put his life at risk.

e)                    That Mr Portilla, who lied earlier to the investigation, then told the truth, had now been untruthful to the Commission as well in relation to what actually did occur on that day.

f)                     That he knew when he walked on the stockpile that what he did was dangerous.

g)                    That he did not tell the truth because he was worried about losing his job.

h)                    That his action occurred in proximity to the feeders.

i)                      That, at all times, Mr Portilla agreed that standing over the feeder was dangerous and that on this occasion it was probable that he walked over the feeders.

j)                      That he was not truthful in his evidence.

k)                    That he did what he did because it did not enter his mind that it was unsafe to do so.

l)                      That his actions since had been efforts to justify his actions to save his job.

m)                 That he potentially put his life at risk and was untruthful in an attempt to regain his job.

n)                    That, thus, the employer’s decision to dismiss Mr Portilla should not be overturned and was not unfair.

o)                    That there must be a residual concern that Mr Portilla had previously lied about his behaviour involving matters of safety and has been prepared to do so again.

p)                    That this can legitimately engender aspects of doubt and mistrust in the mind of an employer.

q)                    That, in June 2004, Mr Portilla had failed to comply with safety procedures and was disciplined and retrained.

Findings – Comparison of Treatment of Mr Portilla and Mr Chomkhamsing

a)                    That the actions of Mr Chomkhamsing were more culpable and dangerous than those of Mr Portilla.

b)                    That there was no evidence to suggest that Mr Portilla was discriminated against because he was an award covered employee.

c)                    That there was evidence that Mr Chomkhamsing received more favourable treatment than he deserved, especially if one made a comparison between his treatment and the treatment of Mr Portilla, and having regard to the seriousness of the breaches.

d)                    That there was one very serious difference between the employees and that related to the issue of truthfulness.

e)                    That Mr Chomkhamsing was given more lenient treatment than he deserved.

f)                     That Mr Cook and Mr Chomkhamsing’s father-in-law were on friendly terms, and, in fact, dined together in Perth.

g)                    That Mr Cook did not bear the blame for Mr Chomkhamsing’s actions because he put him in a supervisory position when he did not have the ability to adequately perform in it.

h)                    That the seriousness of the first breach was not lessened by a lax safety culture at Finucane Island.

i)                      That, in relation to the second breach, Mr Chomkhamsing was an experienced senior production technician who should have known that his actions were dangerous and potentially fatal.

j)                      That Mr Chomkhamsing had ignored or forgotten the instruction given to him less than an hour before the event about isolations.

k)                    That this contrasted with Mr Portilla’s case in that Mr Portilla had at no time received any instruction about walking on the stockpile, although this was known by Mr Portilla and generally known.

l)                      That Mr Portilla’s action jeopardised himself both times, but Mr Chomkhamsing’s actions jeopardised other employees.

m)                 That, therefore, the potential seriousness of Mr Chomkhamsing’s lack of attentiveness or disregard for safety could then have been much more serious.

n)                    That Mr Chomkhamsing lied during the inquiry process, but that he soon corrected it.

o)                    That, thus, his conduct in that regard was not of the same magnitude of that of Mr Portilla.

p)                    That Mr Chomkhamsing’s incidents were about two years apart and Mr Portilla’s were four months apart.

q)                    That Mr Chomkhamsing’s incidents were not dissimilar breaches for which originally the whole team was retrained.

r)                     That Mr Portilla’s two incidents were of a different character and he was originally retrained.

s)                     That Mr Chomkhamsing’s style of safety breach was the subject of regular update or reminder within work groups.

t)                      That Mr Portilla’s second breach was not subject to regular provision of information.

u)                    That Mr Portilla’s work record and ethic were good and he had worked for BHPB for 27 years.

v)                    That Mr Chomkhamsing was in a responsible position, should have known that his actions were wrong, was effectively forewarned an hour previously and put at serious risk the lives of three people.

w)                  That his actions were more serious than Mr Portilla’s and were capable of relevant comparison.

x)                    That the factors which weighed against Mr Portilla in comparison were that his earlier breach was fairly recent, and his lack of candour.

y)                    That Mr Chomkhamsing’s treatment was more lenient than Mr Portilla’s but he, the Commissioner, was determining Mr Portilla’s dismissal and it was not unfair, given that his lack of candour was the decisive factor in reaching that conclusion.

ISSUES AND CONCLUSIONS

Principles

107   The decision appealed against is a discretionary decision, as that term is defined in Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194 and Norbis v Norbis [1986] 161 CLR 513.  Accordingly, the appellant must establish that the exercise of the discretion by the Commission at first instance miscarried, applying the principles laid down in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU (1992) 73 WAIG 220 (IAC)) in order to succeed on the appeal.  Whilst, also, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of weight, an appellate court is not prohibited from so doing when it ought to (see Gronow v Gronow (1979) 29 ALR 129 (HC)).

108   Further, there is no warrant in the Full Bench to interfere with the exercise of the discretion at first instance or to substitute the exercise of its discretion for that of the Commission at first instance, unless it is so established.

109   Insofar as the findings in this matter are based on the credibility of witnesses, they may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.

110   That does not, of course, mean that the Full Bench is not required to carry out its statutory duty upon appeal as that duty is imposed by s49 of the Act (see Fox v Percy [2003] 214 CLR 118).

111   We would also add this.  Inconsistency in the treatment of employees where one is dismissed for misconduct and the other is not may render a dismissal harsh, oppressive or unfair, within the meaning of s23A of the Act (see CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787 at 3796 (FB) per Sharkey P and Coleman CC).

112   Since this appeal turns in part on the question of lack of candour or honesty on the part of Mr Portilla, it is necessary to consider some principles relating to dishonesty.  At common law, there is no duty on employees to volunteer information concerning their own misconduct (see Bell v Lever Bros Ltd [1932] AC 161 at 228 per Lord Atkin and Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at para 37 per Gleeson CJ, Gaudron and Gummow JJ; see also Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151 and Bank of Credit and Commerce International SA v Ali [1999] 2 All ER 1005 per Lightman J).

113   However, where an employer makes a reasonable request for information from the employee concerned, refusal to provide the information may well be disobedience justifying dismissal (see Associated Dominion Assurance Society Pty Limited v Andrew and Haraldson (1949) 49 SR (NSW) 351 at 357-358 per Herron J).  Lying to the employer is dishonesty which might justify dismissal (see Kerr v Goulburn Valley Region Water Authority (County Court of Victoria) per Morrow J, delivered 20 August 1999; see also the discussion of these matters by McCarry (1983) 57 ALJ 607 at 608-609).  At page 357 of the report of Associated Dominion Assurance Society Pty Limited v Andrew and Haraldson (op cit), Herron J said this:-

“Furthermore, a duty lies upon an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee.  If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure.

Most of these questions involve matters of degree.  It could not be said that every act above described would, if it stood alone, of necessity justify instant dismissal.

…….

The matter is essentially one for the trial Judge to decide on the facts.  He would not be bound to find that all such interviews amounted to misconduct any more than he would be bound to find that they were justified.  The party carrying the onus would need to prove affirmatively that, more probably than not, misconduct existed.”

114   It was conceded on this appeal that Mr Portilla and Mr Chomkhamsing were required to answer honestly questions put to them by their employer about the incidents, the subject of the proceedings at first instance.  Having regard to the above authorities that might not be so in every case.  However, it was not necessary to consider that in this matter because of the way in which the case went.

Mr Portilla’s Understanding and Expression – The English Language

115   One matter which received a lot of attention from counsel upon this appeal and which was considered by the Commission at first instance was Mr Portilla’s ability to understand, read and speak English.  It was common ground that, although Mr Portilla had spent many years in this country, having worked for about 27 years, at that time at Port Hedland for BHPB, he was, in fact, a native of Spain and his first language was Spanish, English his second language.  He has, however, worked and lived in this country amongst English speaking people and was so doing at the time of these incidents.  His evidence was given in English and he was examined by his own counsel in English and cross-examined in English.  At no time did his counsel seek to use an interpreter or suggest that such a course should be taken.

116   It is not a point of appeal in this matter that the Commissioner at first instance erred in failing to let him give evidence through an interpreter when it was not sought to do so.  Of course, we should add that, in several cases to which these proceedings are akin, whether the question is, “Should the whole of the evidence be interpreted for a party with poor English?”, or “Should the evidence of a particular witness be given through an interpreter?” rests in the court’s discretion (see Dairy Farmers Co-Operative Milk Company Limited v Acquilina [1963] 109 CLR 458; Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 423-424, 425 and 427 (NSWCA); and Adamopoulos and Another v Olympic Airways SA and Another (1991) 25 NSWLR 75 at 77-78, 80 and 84 per Kirby P, Mahoney and Handley JJA).

117   In any event, that was not the point.  Rather, the point was that Mr Portilla had difficulty comprehending matters and expressing himself and that, by implication, this might have affected his giving evidence and his ability to deal with the inquiries.  We should add that, during the inquiries, he had a union representative with him at all times.  That gentleman made no intervention on the basis that Mr Portilla did not understand or could not express himself adequately, nor did Mr Portilla at any time.

118   The Commissioner, at paragraph 27 of his reasons for decision (see page 22 (AB1)), dealt with this question.  We have read all of the transcript and all of the records of discussions by BHPB managers with Mr Portilla.  We agree with the findings of the Commissioner.  We agree with them in the particular observations made by the Commissioner.  We note that the Commissioner himself raised with counsel whether Mr Portilla needed an interpreter and he did not.  From his understanding of the matters in evidence and during the safety and disciplinary investigations, as we have read the transcript of all of these, we agree with the Commissioner that Mr Portilla had a reasonable and, indeed, sufficient facility in reading English and in understanding what was said to him for the most part.  Sometimes, he did not understand what was said to him but that was never the case when he was asked about or spoke about his walking on the stockpile, his lying about it, what the dangers were, and his fear of losing his job, as well as matters involving the layout of the stockpile and the location of the feeders, for example.  The same could also be said about the main and essential ingredients of the incident of June 2004.

119   In the main, as the Commissioner found, Mr Portilla did understand the questions put to him.  On occasions, too, he was intent on answering the questions in a manner which suited his purpose.  The Commissioner also found correctly, on a fair reading of the material, that his ability to express himself was less than his understanding.  Overall, however, Mr Portilla knew what he was asked and answered in all material respects comprehensively.  The Commissioner correctly found, in our opinion, that Mr Portilla’s ability to express himself in English was less than his ability to understand spoken English.

Observations

120   We wish to make some general observations about the findings made by the Commissioner at first instance.  In essence, these were the final findings determinative of the claim.

121   First, the Commissioner found that the records of both Mr Chomkhamsing and Mr Portilla were the records of long serving employees and were good records.  Mr Chomkhamsing had about 18 years’ service with BHPB and Mr Portilla, about 27 years’ service.  The Commissioner also found that Mr Portilla’s work record and ethic were good and were not under challenge.  That was correct.  The Commissioner made no actual finding about Mr Chomkhamsing’s record, but seems to have, by implication, accepted (see paragraph 56) that Mr Chomkhamsing had a good work record and ethic.  There was no evidence of anything but a good work record until the misconduct of Mr Chomkhamsing in September 2002.

122   The Commissioner found that the organisation should not accept blame, as Mr Cook purported to do, for erroneously putting Mr Chomkhamsing in a supervisory position.  That was correct.  His appointment to the position did not and could not absolve Mr Chomkhamsing of blame for his own actions.  The Commissioner also found that Mr Chomkhamsing was in a responsible position, should have known his actions were wrong in November 2004 and was effectively forewarned one hour previously about against doing what he actually did and, by his act, put at serious risk the lives of three people.  Thus, the Commissioner found that Mr Chomkhamsing’s actions were more serious than those of Mr Portilla.

123   However, he then found that the factors which weighed against Mr Portilla in comparison to Mr Chomkhamsing were that his earlier breach, that of June 2004, was fairly recent and, importantly, there was his lack of candour (see paragraph 57, pages 30 and 31 (AB1)).  Earlier, the Commissioner had observed that there was “one very clear and important difference between the two employees and that relates to the issue of truthfulness” (see paragraph 52, page 29 (AB1)).

124   Importantly, too, the Commissioner found that there was no evidence to suggest that Mr Portilla was discriminated against in that he was dismissed and Mr Chomkhamsing was not because he was an award covered employee, which he was, and Mr Chomkhamsing was an Australian Workplace Agreement employee.

125   He then went on to say that there was evidence to find that Mr Chomkhamsing received more favourable treatment than he deserved, “especially if one makes a comparison to the treatment afforded Mr Portilla, and this goes to the seriousness of the actual breaches”.  This, of course, was correct.  The Commissioner then observed that, while the two incidents were not directly comparable, they could be compared.

126   The Commissioner also referred to the evidence of the friendship between Mr Cook and Mr Chomkhamsing’s stepfather, Mr Hunt.  We quote hereunder the relevant portions of the reasons (see paragraph 53, page 29 (AB1)):-

“There is no evidence to suggest that Mr Portilla was discriminated against as he was an award covered employee.  There is evidence to find that Mr Chomkhamsing received more favourable treatment than he deserved, especially if one makes a comparison to the treatment afforded Mr Portilla, and this goes to the seriousness of the actual breaches.  The two incidents are not directly comparable but the seriousness of Mr Chomkhamsing’s actions was readily apparent.  Mr Schapper would have the Commission draw the conclusion that this was due to a relationship which Mr Cook had with Mr Chomkhamsing’s step-father.  This allegation was put to Mr Cook and strongly denied.  However, when one looks at the evidence of Mr Cook in its totality there are sufficient reasons to conclude that Mr Chomkhamsing was given more lenient treatment than he deserved.  Mr Cook says that Mr Hunt was a colleague, not a friend.  Mr Cook dined with Mr Hunt and his family in Perth, so it would seem they were on friendly terms.”

127   We note, however, as Mr Schapper submitted, that the Commissioner made no finding that favouritism arising from that friendship was the cause of the more lenient treatment of Mr Chomkhamsing, nor did he find that it was not.  In fact, he made no finding one way or the other.  The Commissioner also contrasted the misconduct of Mr Portilla to that of Mr Chomkhamsing to the latter’s disadvantage (see paragraph 55, page 30 (AB1)).

The Nature of the Misconduct

128   It is worth recalling, for the purposes of this matter, considering the seriousness of the various acts of misconduct that summary dismissal is a common law remedy available because:-

“…. a contract of service is but an example of contract in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.”

 (See North v Television Corp Ltd (1976) 11 ALR 599 at 600 where the judges quote what was said in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289).

129   Then there is the well known dictum of the High Court in Blyth Chemicals Limited v Bushnell [1933] 49 CLR 66 at 81, where it was 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.”

130   The lawful exercise of the power to summarily dismiss depends upon, first, determining whether there has been a breach by the employee of the express or implied terms of the contract or a demonstrated intention not to be bound by those terms, and secondly, an assessment of whether the breach is sufficiently serious to allow summary termination of the contract (see Bruce v AWB Ltd (2000) 100 IR 129 at paragraph 15; and Macken, O’Grady, Sappideen and Warburton, “The Law of Employment” (5th edition) pages 196 to 199).

131   No rule of law defines the degree of misconduct which would justify summary dismissal without notice.  This is a matter which turns on the facts and circumstances of each case.  However, whilst it is only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily, as Kirby J said in Concut Pty Ltd  v Worrell (op cit), but Gillard J in Rankin v Marine Power International Pty Ltd [2001] 107 IR 117 at 142, suggested that the authorities, in particular Blyth Chemicals Limited v Bushnell (op cit), do not support the proposition that summary dismissal is available only in exceptional circumstances.  His Honour said:-

“The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily.  Isolated conduct usually would not suffice.  Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice.  The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.”

132   We respectfully agree with His Honour Gillard J’s opinion of what the authorities say.

133   We should add that an employer does not have to accept an act of such a nature as to warrant summary dismissal and act on it by effecting summary dismissal.  If the employer does not act, the act of misconduct is then said to be condoned but may then be revived by subsequent misconduct (see Macken, O’Grady, Sappideen and Warburton, “The Law of Employment” (op cit) at pages 219-220), that is, previously and waived misconduct may be taken into account in determining whether fresh misconduct justifies summary dismissal (see John Lysaght (Australia) Ltd v Federated Iron Workers; York Industry Commission (1972) 14 AILR 517; and McCasker v Darling Downs Co-operative Bacon Association Ltd (1988) 25 IR 107).

134   Mr Portilla’s act can be characterised this way.  He was an experienced bulldozer driver and employee of BHPB for 27 years.  He said that he knew that the stockpile was 100% safe.  There was no written prohibition upon walking on a stockpile if it were live.  There was a general understanding amongst employees and he knew and eventually admitted that it was wrong to walk on a live stockpile away from the protection afforded by the cabin of his bulldozer.  That he had undoubtedly evolved a practice of walking on live stockpiles, but not at night, and not over the feeder line, was the case.  However, he knew of no-one else who did and this fact was of some consequence.  He eventually unequivocally admitted, having lied about it before, and he admitted that he knew that he ought not to walk on the stockpile and was contrite.  His lying commenced from the very discovery of his action when he deliberately and falsely denied walking on the stockpile and, indeed, demonstrated to the BHPB witnesses who saw him, that he had not got off the bulldozer and allowed them to photograph him in that position.  He also denied this in the first meeting of the disciplinary inquiry.  He clearly did this, as he explained, because he was afraid of losing his job.  However, his concealment was evidence, too, of his awareness that the act which he performed was forbidden and he knew the seriousness and therefore the possible consequences of such an act.  He admitted to doing this twice.  He also knew of signs which had been placed on stockpiles in the past forbidding walking on them.  No-one had ever told him that he was at liberty to walk on a stockpile.

135   However, it is necessary to consider that act further.  It lasted two to three minutes and Mr Portilla took only a few steps on the stockpile.  He was exposed to whatever danger there was for a very short time as compared to Mr Chomkhamsing and the two employees who were exposed to danger for a very long time on 25 November 2004.  Mr Portilla knew, having been informed earlier that the feeders were not working and the feeders were not therefore creating cavities which might cause the stockpile to slide away and endanger him; nor were the feeders likely to suck him down off the stockpile, because they were not operating.  Indeed, he was told that they were not working that day because they were being subjected to maintenance, and he might safely have presumed that they were isolated and locked out, as was would have been the normal procedure for maintenance on equipment.

136   Mr Portilla acted unsafely also because he could have discovered what he needed to know by radioing from the safety of his cab, rather than going to the high point of stockpile to look over the side.  He gave no satisfactory explanation why he did not radio.  What he did do was to assist in the task of bulldozing.  It is fair to observe that, because the feeders were not working and, even if the feeders had not been tagged and isolated, it was not a live stockpile in reality because the ore was being loaded or had been loaded into trucks to be taken away the front end loaders whilst the feeders were inoperative.  Mr Portilla was entitled to assume that they should remain inoperative because they were being serviced for the day and that was the information that was given to him.  That being so, too, it was unlikely, according to the evidence, that cavities would remain after the feeders stopped working which would cause ore to slip away.  Certainly, no ore had slipped away while the bulldozer was working.

137   It is also noteworthy that Mr Portilla maintained, and it was open to find, that because of those facts, the bulldozer had tamped down the ore where he had walked, so that what he did was not unsafe or at least not imminently unsafe.  There was, in fact, no evidence of any imminent danger in this situation.

138   Mr Portilla did not admit during the investigation that he was over the feeders, and denied that on oath in the witness box.  He was not summarily dismissed for this incident because his entitlements were paid out.  It was not argued that the dismissal was actually summary, so it is not necessary to consider that point.  However, he was dismissed because he was guilty of misconduct in his employer’s eyes.  He did eventually admit that he had acted contrary to the prohibition upon walking on the stockpile which was a known prohibition, even if not a formal and prescribed one, but not to act in breach of any formal company safety “protocols”, there being none until after he was dismissed.  He certainly, as alleged, did not admit to walking on the stockpile until 18 November 2004, when the incident actually occurred on 21 October 2004.

139   His employer, because of the eye witnesses to his act, was not misled.  Mr Portilla, however, did not report the act.  His action had, without doubt, as alleged, the potential to place him in danger but not, on the evidence, to expose him to a high risk or to imminent danger because the stockpile was not actually live, even if it were characterised as such because the feeders were in fact shut down.  He certainly exposed no-one else to danger by his act, and that is very important.  Of course, it was also serious that he had exposed himself to danger.  It is doubtful that there were cavities because the feeders had not been working for some time, on the evidence.

140   Mr Portilla himself took some care on the stockpile and explained how he did this. 

141   Because of his dishonesty or lack of candour, as well as his acts, what he did might justify a dismissal but not a summary dismissal.

142   The next question is whether, having regard to the incident in June 2004 when Mr Portilla received a written warning, it could be considered with this incident and a summary dismissal might have been justified.  On that occasion, he had walked without a safety harness and outside the safety handrail, contrary to BHPB’s height and safety procedures.  He also worked on machinery when the same had not been isolated.  He was only partly careless of his safety because he twice asked Mr Chomkhamsing to lock out the machines but, as was the uncontradicted evidence, Mr Chomkhamsing refused to do so, saying that he had 40,000 tonnes of ore to put through.  There was no good reason in safety why Mr Chomkhamsing refused to lock out the machine and every reason as the employee in charge of the crew why he should have done so.  Mr Portilla took his own steps to arrange for his safety by asking the operator, Mr Bucknall, to tell him if he was going to set the machine in motion.  Mr Bucknall did in fact tell him when he was going to set the machine in motion.  That enabled Mr Portilla to stop cleaning and get off the machine.

143   Mr Portilla at no time imperilled anyone but himself, serious as that was, during either of the two relevant incidents in which he was involved.

144   It was not possible to clear away the blockage to the machine properly and safely without Mr Portilla getting onto the machine by leaving the area behind the handrail to complete the cleaning which he was doing.  Thus, he came from the safe area behind the handrail to the unsafe area where he completed the cleaning without any safety harness.  This, of course, demonstrated that, in order to completely unblock the machine, it was necessary to get down onto the machine.  That meant, of course, that the machine should have been tagged or isolated and locked out so that the slew gear was completely safe whilst the unblocking occurred.  Further, Mr Portilla was not stopped from getting down on the machine or ordered to wear a safety harness  so by Mr Chomkhamsing at any time.

145   At all material times, the work was being done under Mr Chomkhamsing’s supervision and he was responsible for the safety of Mr Portilla and Mr Bucknall, the other operator.  His conduct was aggravated by that fact.  That does not mean that Mr Portilla was not responsible for his own safety but he was in fact prevented from taking the required steps to correctly preserve his own safety in order to complete the cleaning task, by the refusal of his own charge hand.

146   Mr Chomkhamsing, on this occasion, put production ahead of safety, although it is fair to observe that Mr Chomkhamsing did not require Mr Portilla to go from behind the safety rail to clean the whole of the blockage out.  He merely failed to prevent him.  Mr Portilla took it upon himself to work at heights in an unsafe manner and then was untruthful about the actual height at which he had worked.  However, he was not criticised or disciplined for that on that occasion.  He received a written warning and retraining for breach of the tagging regulations.  He also assured Mr Swinnerton that he would improve his attitude to safety and would not offend again when Mr Swinnerton discussed these matters after the event.  There is no evidence of Mr Chomkhamsing being disciplined or being spoken to by Mr Swinnerton about his failure to ensure that safety standards were properly complied with on this occasion by Mr Portilla or failing to lock out the machine when requested to do so; it is difficult to understand why he, as the supervisor, was not disciplined for his misconduct.  Nor was there evidence that he received any warning about this matter himself.  Again, cogently, no-one was placed in danger by Mr Portilla’s act except himself, serious as that might be.

147   The question is whether, having regard to Mr Portilla’s conduct, on that occasion, summary dismissal was warranted after the events of 21 October 2004.  In our opinion, given the nature of the offences and, although there were two of them, they were not so blatant or deliberate or serious as to warrant summary dismissal.  Both were compounded by dishonesty and all two acts of dishonesty or lack of candour were the subject of recantation by both Mr Portilla, as were Mr Chomkhamsing’s acts of lack of candour and dishonesty during the November 2004 investigation.

148   Whether a dismissal would then be fair is an entirely different question.

Mr Chomkhamsing’s Conduct

149   We now turn to make some observations about Mr Chomkhamsing’s conduct.  We turn first to the misconduct of 30 September 2002.  That involved Mr Chomkhamsing as charge hand working on the tail end of Conveyor 39 with Mr Brand without locking it out.  Mr Chomkhamsing removed a wedge from the eastern side of the flap on the Conveyor 39 and Mr Brand did so on the western side, climbing over the tail pulley of the conveyor to hold the flap.  Mr Brand was working under Mr Chomkhamsing’s supervision.  No steps were taken to isolate or lock out the machinery when it should have been.  Again, Mr Chomkhamsing and Mr Brand were exposed to great danger if the belt started up.  The long standing and strict tagging procedures were just ignored.  Afterwards, Mr Chomkhamsing and Mr Brand were taken through the procedures.  So seriously was this incident regarded by BHPB that the whole shift was informed of this breach of isolation and tagging procedures and a full presentation of the newly revised isolation and tagging procedures was conducted on or about 14 November 2002.  However, there is no record of any written warning to Mr Chomkhamsing and Mr Brand and no evidence of anyone in Mr Swinnerton’s position informing Mr Chomkhamsing or Mr Brand that his or their attitude to safety was unsatisfactory; nor were they required to give an assurance that their attitudes would change, as Mr Portilla was after the June incident.

150   This was an incident where there was clearly a risk of serious injury to Mr Brand and Mr Chomkhamsing if the belt was to start up and Mr Chomkhamsing did nothing to prevent it by tagging or isolation when he was the person in charge.  The penalty in this case did not even include a written warning.  There is no evidence that any counselling, warning or penalty applied to Mr Chomkhamsing who was Mr Portilla’s supervisor in relation to the June 2004 incident.  There was evidence of the sort of oral warning given by Mr Swinnerton to Mr Portilla in June 2004 after he had already received his written warning.  We would also observe that there was no evidence that an operator such as Mr Portilla had any right to overrule a charge hand if the latter did not consider that a piece of machinery should be tagged, locked out or isolated.

151   The importance of compliance with tagging rules and regulations has been referred to by this Commission and other industrial tribunals on a number of occasions (see Ortuzar v Newcrest Mining Ltd (1997) 77 WAIG 2379 per Fielding C).

The Incident of 16 June 2004 Involving Mr Portilla

152   That was another incident involving Mr Chomkhamsing and his failure to properly supervise those in his charge or to adhere to safety regulations himself.  It was not denied, and it should be accepted, that when they were working in a dangerous situation under his charge and when Mr Chomkhamsing clearly had a responsibility in the course of his supervision to ensure that Mr Portilla worked in accordance with safety regulations, he created a situation where Mr Portilla breached the regulations by working on or near machinery or equipment which was not locked out.  He did this notwithstanding that he was twice asked to lock the machine out and twice refused when it was clear that it was his duty to do so or to permit Mr Portilla to do so.

153   Mr Portilla, in order to complete the job, was forced to do the next best thing, namely to ask Mr Bucknall to forewarn him if the machine and belt were to start up.

154   As to working at a height outside a safety rail and with no safety harness, that was Mr Portilla’s initial responsibility too, but, as his superior, Mr Chomkhamsing did nothing to prevent him so doing as he had done nothing to prevent it in the past and did so again in November 2004.  He put production before safety and allowed Mr Portilla to expose himself to the risk of injury or death. 

The Incident of 25 November 2004

155   The incident of 25 November 2004 involving Mr Chomkhamsing, Mr Colerio and Mr Andrews requires some discussion also.  That was an incident in many respects similar to the incident of 30 September 2002 involving Mr Chomkhamsing and, in some respects, to the incident of June 2004 in respect of which Mr Portilla was disciplined when Mr Chomkhamsing declined to lock out the machinery on which Mr Portilla was working.

156   On this occasion, Mr Chomkhamsing was not just the senior production technician or charge hand.  In fact, he was acting supervisor in charge of the whole shift.  His responsibility for the safe working of the shift was therefore even greater.  On that occasion, he was responsible for Mr Andrews, Mr Colerio and himself working on the machinery which could have started at any time and seriously injured or caused the death of any or all of them.  Further, none of them were working behind a safety rail and/or wearing safety harnesses to stop them falling from the height at which they were working.  They were in an exposed and very dangerous position, not for just a few minutes but for 30 minutes to one hour, a very significant length of time to expose them to this danger.  Importantly, too, Mr Chomkhamsing did not complete a JSA, as he was required to do, before commencing on that job and he offered no reason for so failing.

157   Further, and very significantly, in disobedience of a specific warning or instruction given to him one hour before this incident at the pre start meeting, Mr Chomkhamsing did what he did.  He did not even ask the operator not to start up the machinery without letting him know, as Mr Portilla had done in June.  That part of the belt and its machinery was locked out and isolated only after Mr Andrews and Mr Colerio had discussed the hazards and complained to him.  He filled no JSA form in and did not report his failure to comply with the tagging regulations because he said that he forgot.  This was very serious indeed, given that he was the acting supervisor of the while shift.  Mr Andrews and Mr Colerio were disciplined, Mr Andrews by his employer and Mr Colerio by BHPB.  Mr Chomkhamsing was not dismissed, even though Mr Swinnerton, who inquired into the matter, reported to Mr Cook that this was a borderline matter (ie) borderline whether he should be summarily dismissed.

158   It was said, in relation to the incident of 25 November 2004, in Mr Chomkhamsing’s favour, that he admitted the incidents immediately, took full responsibility for his actions and was co-operative and truthful during the investigation, when in fact he was not at all truthful on two serious matters, as we have observed above.  It was also said that he had no disciplinary actions, notes or files, or any other form of safety or work related issues in the twelve months prior to the incident although he had received a written warning for a safety breach on 30 September 2002, the elapsed time was deemed to be significant enough to remove its relevance in this case.  In our opinion, such a view was entirely wrong and, as Mr Swinnerton did observe, an event of unacceptable risk had occurred when Mr Chomkhamsing was well aware of the relevant isolation and safety regulations and the obligations upon him as a supervisor and as an employee.  This incident was similar to what had occurred on 30 September 2002 which showed the same sort of disobedience and lack of care for himself and others, and a lack of obedience to the directions, regulations and policies of his employer.  It bore similarities, too, to the Portilla incident of June 2004.

159   Mr Chomkhamsing was, however, quite severely dealt with, being demoted with loss of income as a result.  He was also stood aside and required to undergo retraining as well as move shifts.  The incident was treated by BHPB as a mitigating matter that he had been acting as supervisor.  That consideration could bear no weight.  He had been a charge hand and used to supervising other employees for three years or so.  He was the acting supervisor as well.  Further, he had been specifically reminded one hour beforehand about his duty in the very matter where he later that day committed such serious misconduct.

160   Further, his honesty was taken into account in deciding his penalty.  However, as the Commissioner found, he lied in the course of the investigation of the incident.  He did so, not once but twice.  He asserted that he was not putting production before safety when he had already stated that he wanted to get things happening again.

161   Further, and more seriously, Mr Chomkhamsing categorically denied that he had broken any rules other than the tagging regulations.  It was only when he was asked the direct question whether he had complied with the safe working at heights policy at BHPB that he admitted that he had not been.  He contradicted himself and admitted that that policy had been broken.  Contrary to what his employer said, he was not honest and it was wrong to allege that he was as a basis for not dismissing him.

162   Further, he acted contrary to well known and express regulations about tagging and isolation and deliberately acted in breach of them, procuring others for whom he was responsible to do so twice.  He was not only in charge of the crew in November 2004 but of the whole shift.  It mattered not that he was acting because he was a supervisor who had been in charge of crews as a charge hand and senior production technician since 2001 at least.  He also took no steps to comply with the safe height working policy in relation to himself or his subordinates.  This was an incident in which he demonstrated reckless disregard for and deliberately acted in breach of the tagging regulations and the safe height working policy of his employer.  It was not the first time that he had done so.  He deliberately acted in breach of the regulations within one hour of being warned not to and not to in a particular matter.  Within the tests laid down for what constitutes conduct justifying a summary dismissal, this conduct was such as to constitute a serious breach of the contract of employment including the strict safety directions of the employer and the requirement of honesty, so as to constitute a serious breach of the contract, justifying summary dismissal.

163   Such a finding, although one does not need to make it, is further justified by the similar manner in which he acted on 30 September 2002 and the manner in which he acted in relation to the safety of Mr Brand on that occasion and in relation to Mr Portilla’s acts in June 2004, which he could have prevented from occurring.  He could have prevented these acts from occurring.  Such a summary dismissal could not be found to be unfair, for those reasons.

164   Further, since Mr Chomkhamsing’s good record was not in fact a good record since 2002, it might be said that that was an added factor in considering his summary dismissal.  There was also the suggestion of his inability to correct behaviour or language which upset his workmates, although it was not necessary to have regard to that in considering whether he ought to be summarily dismissed or not.

165   A dismissal which was not a summary dismissal would also, for those reasons, not be unfair.  What we are observing here is that his conduct was so bad that it warranted a summary dismissal according to proper principles.  That was the nature of it.  Of course, as we have already said, whether an employer summarily dismisses or otherwise dismisses an employee or does not dismiss an employee is a matter for the employer.  We will come to the significance of our observations about the nature of Mr Chomkhamsing’s conduct later in these reasons.

Comparison of Incidents and Treatment

166   The dismissal of an employee may be unfair if one employee is dismissed for misconduct when another employee guilty of similar or the same misconduct and without other mitigating features to differentiate, is not dismissed (see CFMEU v BHP Billiton Iron Ore Pty Ltd (FB) (op cit) at page 3796 per Sharkey P and Coleman CC).  This inconsistent treatment of employees can constitute unfairness.  If an employee is treated so inconsistently that, on an objective consideration of the matter, he/she ought to be and feel aggrieved, then the dismissal may be unfair.

167   The Commissioner at first instance weighed the two incidents but found by way of comparison, having regard to Mr Portilla’s lack of candour and that his earlier misconduct was more recent, that the matters were capable of relevant comparison.  That is, with respect, not the point.  The point is whether the treatment of both employees was so unjustifiably inconsistent that Mr Portilla was therefore unfairly treated.

168   Determining whether Mr Portilla was treated unfairly or fairly in the end depended on a number of factors including any inconsistency in treatment.  The Commissioner correctly found that Mr Chomkhamsing’s conduct was more serious and, indeed, it was far more serious than Mr Portilla’s and followed a consistent line of disobeying procedures and failing to carry out his duties over three incidents, although the November 2004 incident alone warranted summary dismissal, in our opinion, for the reasons which we have expressed above.  It mattered not that the incident of 30 September 2002 was over two years before the November incident because it was part of a pattern of incidents repeated by Mr Chomkhamsing in his attitude to Mr Portilla’s conduct in June 2004 and his grave misconduct in November 2004 which was also compounded by his dishonesty in the course of the investigation.

169   Mr Chomkhamsing’s acts were deliberate breaches committed contrary to BHPB’s express written and long standing regulations and procedures causing imminent danger of death or fatal injury to himself or others, at least in September 2002 and November 2004.  That exposure to danger lasted, significantly, for 30 minutes to an hour, a very long time.  He also permitted or required people under his supervision to expose themselves to danger on three occasions as a result of his disobedience and/or failure to carry out his duties and was guilty of dishonesty to his employer when he lied during the investigation of the incident of 20 November 2004.

170   Further, he deliberately committed an act of disobedience after he had been specifically and expressly reminded by his immediate supervisor, Mr Swinnerton, on 25 November 2004, before he commenced work, not to work in the manner in which he did work and which resulted in his being disciplined.  This was a most serious and grave act of disobedience.  It was wrong for his employer and for the Commissioner, for those reasons, not to consider all of these factors in making the decisions which they did.

171   However, the nature of the November incident, where Mr Chomkhamsing did not even prepare a JSA, alone was sufficient to warrant dismissal, and summary dismissal at that. 

172   That the incident of two years before was less recent than Mr Portilla’s conduct of June 2004, for all of those reasons, was not to the point.  It was so serious and so similar to what he did in September 2002 that it was entirely relevant and rendered Mr Chomkhamsing even more culpable when he committed his misconduct on 25 November 2004.  Further, no-one took into account Mr Chomkhamsing’s exposure of Mr Portilla to danger because he failed to isolate the machine on which they were working in June 2004 and failed to actually prevent him working on or near the machine when it was not isolated, and working at height without protection.  This incident was part of a series of three incidents in which he conducted himself in a not dissimilar manner.  We would also add that it was wrong to justify the decision not to dismiss Mr Chomkhamsing on the basis that he was acting only.  He may have been acting as a supervisor only temporarily, but he was an experienced senior production technician or charge hand, having held that position for three years or so and should have been used to supervising other employees.  He was also an acting supervisor reminded of his duties an hour before he disobeyed a warning or direction and the tagging regulations.

173   Mr Portilla, in the first incident in June 2004, was guilty of lying but exposed no-one but himself to danger.  He himself was not in imminent danger.  On neither occasion was he in a position of leadership nor had he received any direction before the incident, as Mr Chomkhamsing had before the November 2004 incident.  Further, he was exposed for only a few minutes to danger on 21 October 2004, not 30 minutes to an hour.  Next, he was treated harshly compared to the treatment of Mr Chomkhamsing who exposed others as well as himself to danger in situations of palpable and imminent danger.  Further, he was not a person appointed as a supervisor and was required to work, at least on the second occasion, on his own.  He had no duty of supervision and was not required to enforce safety regulations, policies or procedures, as Mr Chomkhamsing was.

174   In the October 2004 episode, Mr Portilla was in no imminent danger and exposed no-one else to any danger because the feeders were not working.  There was no-one else there.  There was, as he had been informed, no evidence either that they were not in fact tagged or isolated.  Further, there was only a general understanding about not walking on a stockpile, there was no express written instruction or policy, as there was in relation to working at heights and tagging regulations.  He broke no express rule, although what he did was wrong, unlike Mr Chomkhamsing, who breached the long standing, well known, precise tagging regulations.

175   Further, whilst Mr Chomkhamsing’s good record as an employee stretched over 18 years, Mr Portilla’s stretched over 27 years, which is half as much again and was, in our opinion, a relevant factor if a comparison were to be made between them.

176   There was a lack of candour on the part of Mr Portilla which lasted from 21 October 2004 to 18 November 2004, but he corrected this himself.  He was also guilty of some dishonesty in June 2004, which he did not correct, but was not disciplined for it.  However, his lack of candour did not render his conduct, which did not occur until after nearly 26 years of a good record, comparable with the conduct of Mr Chomkhamsing, which was deliberate flouting of safety regulations and exposure of himself and others to danger, and the failure to properly exercise his obligations as a supervisor and, on the second occasion, lasted for 30 minutes to an hour, instead of a few minutes in the case of Mr Portilla.  Mr Chomkhamsing’s conduct was even more serious because he was in a position of trust as a “superior” and had been warned about the actual breach which he committed one hour before he committed it.  He was, on each occasion, in a leadership position which imposed responsibility on him to work safely and in accordance with rules, procedures, directions and policies and to ensure his subordinates for whom he was responsible, did so too.

177   In the case of Mr Portilla, he was in breach of a general understanding, not a black and white regulation, and he was not warned about it beforehand, nor was he in a supervisory or superior position with subordinates.  He was on his own in both instances as an ordinary operator.

178   The Commissioner also failed to take into account that Mr Portilla was, on his conduct, at much less risk than Mr Chomkhamsing, who was irresponsible in exposing himself and others to danger.  Put simply, Mr Chomkhamsing’s conduct was so much worse, for the reasons which we have expressed, as to make it clear that Mr Portilla had grievance and he was very unfairly dismissed because he was dismissed when the more serious conduct of his superior warranted no dismissal.

179   As to the question of dishonesty, whilst serious, it was lacking in comparison with Mr Chomkhamsing’s own dishonesty of which there were two instances and which related to a much more serious breach, even though he also recanted and did so during the same interview as that in which he had been untruthful.  In any event, the cumulative incidents of disobedience and serious exposure of himself and other persons to risk of death or serious injury were far more significant in the case of Mr Chomkhamsing, together with his own dishonesty, compared to the acts of lesser disobedience, and lack of imminent danger, by a person not a supervisor, namely Mr Portilla.

180   This was also to be taken into account, along with his clean record of almost 26 years which was longer than Mr Chomkhamsing’s record of about 16 years and should have been taken into account in his favour.

181   The Commissioner failed to take into account all of these factors in determining that the dismissal was not unfair.  He erred in so finding.

182   Insofar as insufficient weight was applied to Mr Chomkhamsing’s record and conduct and the gravity of the latter, and too much weight was attached to Mr Portilla’s, the Commissioner erred.

183   For all of those reasons, applying the principles in House v The King (op cit), the discretion at first instance miscarried.

Grounds 1 to 5

184   For all of those reasons, grounds 1 to 5 are made out.

Ground 6 and 7

185   It is quite clear that the Commissioner at first instance erred in taking into account Mr Portilla’s alleged lying to the Commission and that is irrelevant to the question of whether the dismissal was unfair.  Further, it is not at all clear that he did, in his version of the events, lie in the witness box and it was not put to him that he had.  It is not clear from the reasons in what respect he is alleged not to have been honest in the Commission.  It was submitted that this was in relation to his location on the stockpile, but he always adhered to what he said there.  Further, it was not put to him that he was lying and it should not contaminate a decision whether the dismissal was unfair or not.  For those reasons, we are satisfied that grounds 6 and 7 were not made out.

Grounds 8 and 9

186   As to grounds 8 and 9, there is some explanation why the two decisions which were made were made contained in the evidence of Mr Cook and Mr Swinnerton about the reason for Mr Chomkhamsing not being dismissed and Mr Portilla being dismissed.  There is also evidence that Mr Cook is a friend of Mr Hunt, Mr Chomkhamsing’s stepfather.

187   There was also evidence, uncontroverted, that BHPB preferred to engage employees on Australian Workplace Agreements rather than on award coverage.  Mr Cook denied that that played any part in his decision and he was not shaken in that evidence.  However, it was not directly put to him that he had favoured Mr Chomkhamsing because of his friendship with Mr Hunt.  There was no evidence at all, other than that Mr Hunt was a friend of Mr Cook and Mr Chomkhamsing was the former’s stepson.

188   There was also evidence from Mr Cook, not accepted by the Commissioner, that Mr Cook was responsible for Mr Chomkhamsing’s errors because he had erroneously promoted him.  That evidence, however, is entirely irrelevant to any question of favouritism.

189   The question is whether there was sufficient evidence from which to infer, on the balance of probabilities, that there was favouritism for Mr Chomkhamsing as a friend’s stepson and disapproval of Mr Portilla because he was not on an Australian Workplace Agreement but on the award, contrary to the position of Mr Chomkhamsing.  The Commissioner certainly directed his mind to this matter but made no finding on either point.

190   In our opinion, given the reasons expressed and notwithstanding the manifestly and significant lenient treatment of Mr Chomkhamsing, without any justification compared to that of Mr Portilla, there was not sufficient evidence to draw an inference on the balance of probabilities that his treatment was brought about by his being on an Australian Workplace Agreement and/or Mr Cook’s friendship with Mr Hunt.

191   There was no sufficient evidence to draw either inference on the balance of probabilities.  For those reasons, grounds 8 and 9 fail.

Dismissal Unfair – Substituted Exercise of Discretion

192   Thus, for the reasons which we have expressed, applying the principles laid down in House v The King (HC) (op cit), we would find that the exercise of the discretion at first instance miscarried and that the Commissioner erred in failing to find that Mr Portilla had been unfairly dismissed.  It is therefore open, in accordance with those principles, to the Full Bench to substitute the exercise of its discretion for that of the Commissioner at first instance.  In our opinion, for the reasons expressed and on the findings which we have said above should have been made, the Full Bench should now find that Mr Portilla was harshly, oppressively or unfairly dismissed from his employment by BHPB on 2 December 2004.  We would so declare.

Reinstatement

193   The appellant seeks an order for reinstatement to his employment without loss of wages or continuity of employment.  This was opposed by BHPB through its witnesses.  Mr Cook said that he was opposed to any reinstatement because, in the June and October 2004 incidents, there was demonstrated a difficulty in identifying potential hazards or associated risks and because Mr Portilla had been prepared to lie.  Thus, he did not have any confidence that he would act safely in the future. 

194   Mr Swinnerton said that, if Mr Portilla was reinstated, he would most likely require constant and permanent supervision which would reduce their ability to proactively manage safety for the remainder of the workforce and would increase the risk to safety of all the employees on site.  He expressed the opinion that, if Mr Portilla was reinstated to an operational area, he would present a potentially fatal risk to himself and/or to other employees.  Given the nature of his two serious incidents, Mr Swinnerton believed that Mr Portilla is not capable of adequately assessing risk in the workplace and he further believed that he would be capable of gaining such skills through any form of rehabilitative programme.

195   Mr Sproule was also opposed to any reinstatement of Mr Portilla because he said it was possible, given his lack of awareness of safety, he could be involved in a serious incident, again that could have devastating consequences.  This was because, as Mr Sproule expressed it, the two incidents which they had taken into account in determining to terminate Mr Portilla’s employment were both serious and involved his placing himself at risk.  Further, both of those incidents only came to their attention after being reported by witnesses and otherwise would have remained unknown.  He also said that, clearly, based on the findings of the disciplinary inquiry into the October incident, he had serious reservations about whether Mr Portilla would be honest in any further dealings with BHPB.  Had there not been witnesses, of course, Mr Portilla’s initial explanation of what occurred would have remained undisputed.  Mr Portilla was not cross-examined on the question of reinstatement, nor were Mr Cook, Mr Sproule or Mr Swinnerton.

196   The statute prescribes that the Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal (s23A(3) of the Act).

197   The Commission also has the power, if it considers reinstatement impracticable, and only then, to order the employer to re-employ the employee in another position that the Commission considers the employee has available and is suitable.  No such remedy is or was sought (s23A(4) of the Act).  If and only if the Commission considers reinstatement or re-employment would be impracticable, may the Commission order an employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal. 

198   “Impracticable” does not mean impossible, but means more than inconsistent or difficult.  As Anderson J said (Franklyn J agreeing) in FDR Pty Ltd and Another v Gilmore and Others (1998) 78 WAIG 1099 (IAC) (see also Gilmore and Another v Cecil Bros and Others (1996) 76 WAIG 4434 at 4446 (FB)):-

“In ordinary language, the difference between “impossible” and “impracticable” is that the former is a definite concept, while the latter is not.  As Veale J said in Jayne v National Coal Board [1963] 2 All ER 220 at 223-

“'Impracticability’ is a conception different from that of ‘impossibility’; the latter is absolute, the former introduces, at all events, some degree of reason and involves, at all events, some regard for practice.”

Here we are considering impracticability in the context of reinstatement to particular employment.  In that context Wilcox J said in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 244-

“The word ‘impracticable’ requires and permits the court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way.  If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be ‘impracticable’ to order reinstatement, notwithstanding that the job remains available.”

199   One must have in mind in considering this issue that reinstatement is the primary remedy for harsh, oppressive or unfair dismissal.

200   Practicality is not dependent upon loss of confidence (see per Gray J in Liddell v Lembke (t/as Cheryl’s Unisex Salon); Gibson v Bosmac Pty Ltd  (1994) 56 IR 447;  and see also the comments of the Judicial Registrar in Savvidis and Beteramia v Privilege Clothing Pty Ltd (1994) 59 IR 136).

201   In this case, there is a loss of confidence in Mr Portilla on the part of his employer.  Equally because of the inconsistency and unfairness in treatment of Mr Portilla, he is entitled to have a loss of confidence in his employer.  It is not necessarily the case, on the evidence, that there is animosity between them.  Given that Mr Portilla lied on two occasions and that he had been in breach of safety requirements, whether unwritten or prescribed, but had not endangered anyone else and given that he had, lied on two occasions but recanted on the second occasion and explained that he had done so out of fear of losing his job, a fear that was well founded; and, given that his dismissal in the circumstances was unfair, then we are not persuaded that it is impracticable to order his reinstatement.

202   Indeed, although the case is borderline, it must be said that Mr Portilla, not having offended in almost 26 years of his 27 years of employment and given his previous good record, then he should, for those reasons also, be reinstated.  Unfortunately, too, it is difficult to find that there can justifiably be any real loss of confidence or impracticability given the failure of BHPB to attribute to Mr Chomkhamsing the flaws incorrectly attributed to Mr Portilla when Mr Chomkhamsing’s misconduct in matters of safety were so manifestly worse and were also a betrayal of trust as a supervisor or leader.  It also should be said that it was wrong for Mr Cook to characterise Mr Portilla as being likely to cause a fatality given the nature of his misconduct and the facts, or being a major problem in relation to safety, unlike Mr Chomkhamsing who was a supervisor, not a mere operator, and admitted he did cause imminent danger of fatality to three people, including himself, and was guilty of previous misconduct and dishonesty, too, and for the reasons which we have expressed above.

203   Mr Portilla’s uncontroverted evidence was that he was, at the time of the hearing, working about 20 hours per week in a cleaning job where he “only did a little bit from time to time to help out”; he did not look for other work pending the decision in this case and it was not put to him at all that there was any other work open to him to seek in his circumstances.  There was no evidence adduced that he did not act reasonably.  There was no challenge to his evidence in this respect and it was not contradicted in any way.

204   It is necessary to further consider the orders which should be made.

205   S23A(5) of the Act is the section which empowers the Full Bench in this case to make an order maintaining the continuity of Mr Portilla’s employment (s23A(5)(a)), and/or confers the power to order the employer to pay the remuneration lost or likely to have been lost by the employee because of the dismissal (s23A(5)(b)).

206   In our opinion, s23A(5)(a) and (b) orders are designed, unequivocally, to put an employee back in the position in which she or he would have been, had she or he not been unfairly dismissed, both by actual reinstatement or re-employment and/or by restoring the remuneration lost.  Such an order is very different from an order to pay compensation for loss caused by an unfair dismissal.  There is no requirement to mitigate loss where an order is made to the employer to pay to an employee “the remuneration lost or likely to have been lost by the employee because of the dismissal”.  Such an order is required by s23A(5)(b), in its actual words, to require the payment of the remuneration lost; that is, the actual remuneration lost or, alternatively, the remuneration which is likely to have been lost.  There is no requirement to mitigate or take any act of mitigation into account in the section, unlike s23A(7) which expressly requires mitigation to be taken into account in awarding an amount of compensation (see also the Workplace Relations Act 1996 (Cth), s170CH(1), (2) and (4)).

207   If we are wrong in that opinion, and the amount ordered to be paid under s23A(5)(b) of the Act constitutes compensation, then we would find fair compensation for loss during the time when Mr Portilla remained dismissed and was awaiting the outcome of proceedings was the whole amount of remuneration not paid to him (see the principles expressed in Growers Market Butchers v Backman (1999) 79 WAIG 1313 (FB)).

208   It is to be noted that Mr Portilla worked a lesser wage for part of the time that he was off work after his dismissal and it was months before this order could be made.  Accordingly, we would not be of opinion that he would be compensated, were compensation applicable, which it is not, according to equity, good conscience and substantial merits of the case, if he were not paid the total amount of his remuneration lost.  That would mean that the amount earned in other employment during this time, which employment he was forced to take, should not be taken into account in assessing the amount to be ordered.

209   In any event, if any mitigation were required, Mr Portilla did mitigate by working as he did, and there was no evidence that the steps taken to mitigate were not reasonable or that there was a failure to mitigate.  It was never put to Mr Portilla that he had not “mitigated his loss”, or that he was required to mitigate it, or that he had not taken reasonable steps to mitigate it.  Mr Portilla, after all, was a man who was dismissed for unsafe conduct in the mining industry and was awaiting the outcome of an application for reinstatement following an alleged unfair dismissal.  There could be no proper finding at first instance or by this Full Bench that he failed to mitigate.  The matter of mitigation, in any event, was not raised as a live issue on this appeal, even when the Full Bench was required, as it has been required to do to embark on the exercise of making findings of its own.  At first instance, too, no evidence was adduced by BHPB, and its onus was not discharged by BHPB (see Growers Market Butchers v Backman (FB) (op cit)).

210   For those reasons, there is sufficient evidence to enable the Full Bench to make a finding under s49(6) of the Act and no other good reason which should prevent that occurring.  We would order the reinstatement of Mr Portilla as and from 2 December 2004 and we would order that he be paid by his employer, BHPB, the whole of the remuneration, not merely wages, lost by him as a result of his unfair dismissal.  We find, for those reasons, that the amount of lost remuneration should not and cannot be reduced by the amount which Mr Portilla earned whilst he was in other employment after he was unfairly dismissed.

FINALLY

211   For all of those reasons, we would uphold the appeal.  We would vary the decision at first instance.  We would declare that Mr Portilla was harshly, oppressively or unfairly dismissed on 2 December 2004.  We would order that Mr Portilla be reinstated without loss of wages in the job which he held as and from 2 December 2004 and, indeed, that he be paid all of the remuneration lost by him as a result of his unfair dismissal, within 14 days of the date hereof.  In the event that an amount cannot be agreed by the parties, then there should be liberty to apply by either party within seven days of the date hereof, by written notice to the Commission and the other party for an order fixing the quantum of remuneration to be ordered to be paid to Mr Portilla.

CHIEF COMMISSIONER A R BEECH:

212   The appellant’s first ground of appeal is that the Commission erred in that it failed to determine whether Mr Portilla’s dismissal was unfair having regard to the circumstances of the Chomkhamsing misconduct and the treatment administered by BHPB for that misconduct.

213   In the Reasons for Decision at first instance, the Commission set out the circumstances leading to Mr Portilla’s termination, the closing submissions of both the appellant and BHPB, a summary of the evidence of Mr Portilla and, commencing at [38] the Commission’s analysis of the evidence.  The Commission concluded at [50] that the lack of truthfulness of the part of Mr Portilla was very important in determining the matter.  The Commissioner concluded that Mr Portilla had not been honest before the Commission as to his actual behaviour and that, in those circumstances, the Commission considered it should not act to overturn the decision of the employer to dismiss Mr Portilla.  The Commission noted:

“There must be a residual concern that Mr Portilla has lied previously about his behaviour involving safety issues and has been prepared to do so again.  This can legitimately engender aspects of doubt and mistrust in the mind of an employer.  I do not then consider that the employer has acted in a manner in dismissing Mr Portilla that can be characterised as an abuse of that right”.

214   Having reached that conclusion, the Commission at first instance then referred to an earlier safety-related incident in June 2004 for which Mr Portilla had been disciplined and retrained.  The Commission referred to “the comparison of the consistency of treatment between Mr Portilla and Mr Chomkhamsing”.  The Commission agreed “mostly” with the submissions of the appellant that the actions of Mr Chomkhamsing were more culpable and dangerous than the actions of Mr Portilla.  He noted that one “very clear and important difference” between the two employees relates to the issue of truthfulness.

215   The Commission noted at [53] that there is evidence to find that Mr Chomkhamsing received more favourable treatment than he deserved if one makes the comparison with the treatment afforded to Mr Portilla.  While the two incidents are not directly comparable, the seriousness of Mr Chomkhamsing’s actions was readily apparent.  The Commission noted the appellant’s submission that Mr Chomkhamsing’s more favourable treatment was because of a relationship which Mr Cook, the Manager, Finucane Island had with Mr Chomkhamsing’s stepfather.  The Commission noted Mr Cook’s strong denial but noted, however, that the evidence in its totality gave sufficient reason to conclude that Mr Chomkhamsing was given more lenient treatment than he deserved and that Mr Cook was on friendly terms with Mr Chomkhamsing’s stepfather; the Commission did not make an express finding that Mr Chomkhamsing received more favourable treatment because of this relationship, but rather stated the proposition as being one open on the evidence.

216   At [54] the Commission at first instance further examined the reason why Mr Chomkhamsing was given more favourable treatment than he deserved.  The Commission rejected a suggestion of blame by Mr Cook and also that there had previously been a lax safety culture at Finucane Island.  The Commission at first instance noted:

1. Mr Chomkhamsing was an experienced safety production technician who should have known his actions were dangerous and potentially fatal.

2. He had been instructed less than an hour before the event about isolations.

3. He had completely ignored or forgotten this. 

4. Mr Chomkhamsing’s actions jeopardised other workers.

5. The potential seriousness of his lack of attentiveness or disregard for safety could then have been much more serious.

6. Mr Chomkhamsing had lied during the inquiry process however the lie had been a denial which Mr Chomkhamsing soon corrected and that this conduct was not of the same magnitude as Mr Portilla’s conduct.

7. Mr Chomkhamsing’s two incidents were about two years apart.

8. Mr Chomkhamsing’s incidents were not dissimilar breaches for which originally the whole team was retrained.  Mr Chomkhamsing’s style of safety breach was the subject of regular update or reminder within work groups.

217   In relation to Mr Portilla, the Commission at first instance noted from [54]:

1. That Mr Portilla at no time received any specific instruction about walking on the stockpile.

2. It was simply generally known and known by Mr Portilla.

3. His actions jeopardised his own safety on both occasions.

4. Mr Portilla’s conduct in lying during the inquiry process was of a greater magnitude than Mr Chomkhamsing even taking into account some leniency as to whether Mr Portilla correctly understood all that was put to him.

5. Mr Portilla’s two incidents were four months apart.

6. His incidents were of a different character and he was originally retrained.

7. Mr Portilla’s second breach was not subject to regular provision of information.

8. Mr Portilla’s work record and ethic were good.

9. He has worked for the respondent for 27 years.

10. That the factors that weigh against Mr Portilla in comparison with Mr Chomkhamsing are that his earlier breach was fairly recent and, importantly, his lack of candour.

218   The Commission at first instance then noted the Full Bench decision in Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787 at 3796.  In that matter, at [119] the President and then Chief Commissioner concluded that the dismissal of Mr Burtenshaw when others were not dismissed was an inconsistency which was conclusive evidence of unfairness and that the Commissioner at first instance in that matter had failed to make any finding on that point; therefore the discretion at first instance miscarried.  The President and then Chief Commissioner held that:

“Whether because they were treated leniently it was inconsistent and unfair to dismiss Mr Burtenshaw is the question on which a finding should have been made, and in relation to which a finding must now be made.”

219   The issue of whether or not Mr Portilla’s dismissal was fair by comparison with the punishment given to Mr Chomkhamsing was squarely raised before the Commission at first instance.  Ultimately, the issue before the Commission was whether or not Mr Portilla’s dismissal was fair not just by reason of his own conduct but by comparison with the treatment of Mr Chomkhamsing in not dissimilar circumstances.  As the Commission recognised, that is a question on which a finding should have been made.  Ground 1 of the appeal alleges that the Commission at first instance did not do so.

220   The Commission had already concluded at [50] that Mr Portilla’s dismissal was not unfair.  This conclusion was reached prior to considering whether Mr Portilla’s dismissal was unfair by reason of comparative treatment.  The Commission then embarked upon a comparison of the treatment of both Mr Portilla and Mr Chomkhamsing stating at [59] that although the facts in both matters are different, they are capable of relevant comparison, and that Mr Chomkhamsing’s treatment by BHPB has indeed been more lenient than that afforded to Mr Portilla.  In relation to then making a finding on the comparative treatment the Commission at first instance recognised that is question upon which a finding should be made.  The Commission, however, did not make a finding and stated:

“However, the matter I am determining is Mr Portilla’s dismissal.  I would issue an order dismissing the application.”

221   Thus, the conclusion of the Commission at first instance that Mr Portilla’s dismissal was not unfair related only to the circumstances of Mr Portilla and did not result from a finding whether Mr Portilla’s dismissal was unfair in comparison to the circumstances, and the more lenient treatment, of Mr Chomkhamsing.  Accordingly, the Commission fell into error and Ground 1 of the appeal is made out.

222   Grounds 2, 3 and 3A are predicated upon the presumption that the Commission did determine that Mr Portilla’s dismissal was unfair comparative to Mr Chomkhamsing’s circumstances.  I consider these Grounds in the event that I am wrong in my conclusion above and, contrary to my reading of the Reasons for Decisions at first instance, paragraphs [51]–[57] are indeed the comparison which the Commission at first instance was obliged to undertake. 

223   Ground 2 alleges that the Commission did not give Reasons for its decision.  In paragraph [59], the Commissioner noted that he would not overturn the employer’s decision and reinstate Mr Portilla; he noted in respect of Mr Chomkhamsing that whereas the facts are different, they are capable of relevant comparison and that Mr Chomkhamsing’s treatment has indeed been more lenient than that afforded Mr Portilla.  The Commission goes no further, however, because he concludes that the matter he is determining is Mr Portilla’s dismissal.  I consider that if paragraphs [51]–[57] are indeed the comparison which the Commission at first instance was obliged to undertake, he did not given reasons, or sufficient reasons, in paragraph [59] for the decision reached given the range of factors to be balanced in the comparative process.  I find that Ground 2 is made out.

224   Grounds 3 and 3A allege that the Commission’s discretion miscarried by not taking certain matters into account in making the comparison.  A number of matters are set out in Ground 3 and other matters were highlighted in the submissions made during the appeal.  Mr Chomkhamsing’s incident lasted nearly one hour and thus the endangerment of his own life, and those of the employees he was supervising (which itself is referred to at [54]), was for a period far greater than the period Mr Portilla walked on the stockpile.  Mr Chomkhamsing was in a supervisory or charge hand experience when Mr Portilla was not.  (I note, however, that the Commission at first instance referred to Mr Chomkhamsing being in a supervisory position when dealing with Mr Cook’s evidence at [57].)  While the fact that Mr Chomkhamsing lied during the inquiry process was recognised at [55], he lied on two occasions during his interview; while these two occasions were soon corrected, given that no action was taken against Mr Chomkhamsing for having lied, and given the emphasis on the lack of candour seen by the Commission at first instance in Mr Portilla’s conduct, that fact is a matter of considerable relevance.

225   The Commission recognised at [55] that the incident which led to Mr Portilla’s dismissal was not a repeat of the June 2004 safety incident.  However, in relation to the June 2004 incident, Mr Portilla had, correctly, asked if he could lock out the machine.  This demonstrated his safety awareness.  Permission to do so had been denied by Mr Chomkhamsing.  This is significant because it casts a different light on Mr Portilla’s first safety incident and apart from that incident, there was no other safety incident in Mr Portilla’s 27 years’ service.  Although Mr Portilla lied during the interview, and maintained the lie, he recanted prior to the decision being made by BHPB.  Further, BHPB was misled by Mr Portilla’s lack of candour only in the early stages of the inquiry.  Mr Chomkhamsing was obliged to have completed a Job Safety Analysis prior to the start of the job and failed to do so; there was no such requirement upon Mr Portilla and thus Mr Chomkhamsing’s failure is greater than Mr Portilla’s by that measure.  Mr. Portilla’s length of service was considerably longer than Mr Chomkhamsing’s length of service.

226   The role of an appellant court is well known, and has frequently been stated by Full Benches in this jurisdiction.  The correctness of a decision at first instance can only be challenged by showing an error in the decision making process (Norbis v Norbis (1986) 161 CLR 513 at 518-519, per Mason and Deane JJ).  The errors that may be identified in relation to the exercise of discretion by a Commissioner who necessarily has some latitude as to the decision to be made are those identified in House v The King (1936) 55 CLR 499 at 505 and which have been so frequently stated (and see too Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 74 ALJR 1348 at [21]).  The requirement on Mr Chomkhamsing to complete a JSA, and his failure to do so, and the comparative lengths of service of both were essential to a proper comparison and I consider Grounds 3 and 3A are made out. 

227   I am therefore of the view that the decision of the Commission at first instance should be reviewed and the Full Bench may exercise its own discretion in substitution for the Commission at first instance if the Full Bench has the materials for doing so.

228   In my view, the Full Bench does have the material for doing so.  In this matter, the facts are largely not in dispute; the dispute, at least as put before this Full Bench, goes more to the weight to be attached to those facts.  With the exception of the finding of the Commission at first instance that Mr Portilla lied during the Commission proceedings itself, it is not necessary in order to fairly dispose of this matter to disturb any of the findings of fact of the Commission at first instance. 

229   The essential point remains:  Was the dismissal of Mr Portilla harsh, oppressive or unfair?  In deciding the point the Full Bench is to take into account all of the circumstances including the fairness of Mr Portilla’s dismissal in comparison to the treatment of Mr Chomkhamsing for a not dissimilar occurrence. 

230   In my view, the exercise of the Full Bench’s discretion in substitution for the Commission at first instance should proceed as follows.  In principle, a dismissal of an employee which is otherwise not harsh, oppressive or unfair may be so if another employee of the same employer, at a contemporaneous point in time, having committed similar acts of conduct or misconduct, are not dismissed.  The principle is one of consistency of treatment (Capril Aluminium Ltd v Sae (1997) 75 IR 65 at [68]).  Notions of fairness necessarily include  whether the employee has received a “fair go all round” when compared to others in a similar position employed by the same employer. 

231   It should be acknowledged that care must be taken in effecting a comparison because there may well be circumstances such as long service, the reasons for the conduct or misconduct or other circumstances which may justify more lenient treatment in one case than in the other.  It is significant in this case that the Commission at first instance found that the two safety breaches committed by Mr Portilla and Mr Chomkhamsing respectively are breaches which are capable of relevant comparison (at [59]).  That being the case, it is far more likely that the Full Bench has before it a comparison of “apples with apples”  as Lawler VP referred to in Sexton v Pacific National (ACT) Pty Ltd (14 May 2003, Print PR931440 at 36) and I proceed on that understanding. 

232   In this case, there are no reasons to do with length of service, the reasons for their conduct, or any other factors other than the issue of truthfulness, which on their face suggest a valid reason for the more lenient treatment of Mr Chomkhamsing; indeed, the opposite appears to be more likely given the finding at first instance that his conduct was, for the most part, more culpable and dangerous than Mr Portilla’s conduct. 

233   The Commission at [43] and [48] placed importance upon a finding that Mr Portilla lied during the hearing; at [50] the issue of lack of truthfulness was stated to be very important in determining the matter before the Commission.  Is this a valid reason for the more lenient treatment of Mr Chomkhamsing?  Whether a witness is, or is not, truthful is of limited relevance only in deciding whether or not a dismissal many months earlier was harsh, oppressive or unfair.  In Jupiter General Insurance Co v Shroff [1937] 3 All ER 67 the Privy Council considered the circumstances where an insurance salesman gave false evidence in the course of contesting his dismissal.  Lord Maugham observed at p. 73:

“Their Lordships do not take the view that the outrageous conduct of the respondent at the trial, including his inventions of interviews, his false charges, and the tissues of falsehoods of which the trial judge has found him guilty, has any direct bearing, other than an evidential one on the question whether he was properly dismissed, but they must observe that, in so far as anything turns on the correctness of the view formed by Mr. Mody and Mr. Iyer as to whether it was reasonably possible for the company any longer to employ the respondent, his behaviour in the witness-box makes it exceedingly difficult to conclude that their view was a wrong one.”

234   The task of the Commission, where there is evidence which is in conflict and which requires resolving in order to deal with the issue before it, is not always straightforward.   Assessing the credibility of a witness is never a simple task.  It includes not only the veracity of witnesses but the accuracy of their recollection.  It is always open to a Commissioner to believe part of what a witness has said in the witness box and to reject another part of that evidence:  Cousins v YMCA (2001) 82 WAIG 5 at [43]. 

235   Findings of fact are not overturned unless the appeal bench is satisfied that the Commission misdirected itself or that any advantage enjoyed by the Commission by reason of having seen and heard the witnesses could not be sufficient to explain or justify the Commissioner’s conclusions.  An appellate court may itself decide on the proper inferences to be drawn from facts which are undisputed or established by the findings of the Commission but shall give full weight and respect to the conclusions of the Commission.  An inference properly open on such facts is only to be overturned if considered wrong: Garbett v Midland Brick [2003] WASCA 36; (2003) 83 WAIG 893 at [30]; and see also Gromark Packaging v The FMWU WA Branch (1992) 73 WAIG 220 at [224]. 

236   I have reviewed the evidence of Mr Portilla from the transcript.  I give due weight to the Commission’s conclusion (at [41]) that it was improbable that Mr Portilla was standing in the position that he said he stood and he therefore concluded that Mr Portilla was being untruthful as a witness and that he had not been honest before the Commission (at [50]).  However, it was never put to Mr Portilla at that time that he was being untruthful in his evidence and the Commission should be slow to make such a finding in the absence of it being put to the witness.  To find that a witness lied under oath in proceedings before the Commission, as distinct from rejecting a part of his evidence, is a most serious matter: perjury is a criminal offence. 

237   A review of the evidence of Mr Portilla in relation to this, and his cross examination, shows that he was adamant as to where he walked, and that he was not going to change his evidence under cross examination.  That, in my respectful observation, falls short of evidence that he was lying.  If I am wrong, and the Commission at first instance was correct, for the reason given in Jupiter General Insurance Co v Shroff (above) I consider this to be of limited relevance to issue of the fairness of his dismissal.

238   I have set out earlier in these Reasons the comparative factors taken into account by the Commission at first instance, and also the factors which I consider are relevant and which were not taken into account.  In my view, the Commission at first instance was manifestly correct in finding that Mr Chomkhamsing was treated more leniently than Mr Portilla.  What Mr Portilla did in walking on the stockpile and then denying it to the inquiry was wrong.  However, did he really deserve to be dismissed with its attendant loss of income and its stigma when Mr Chomkhamsing’s more serious lack of attentiveness and disregard for safety resulting in more culpable and dangerous actions, a repeat of a safety incident two years’ earlier for which he had been retrained and warned about less than one hour prior to the event, did not result in dismissal? 

239   BHPB’s treatment of Mr Chomkhamsing’s wrongdoing is an illustration of the current standards of justice and fair play between BHPB and its employees.  Upon a proper comparison of the treatment received, Mr Portilla’s dismissal was unfair given that Mr Chomkhamsing’s conduct was intentional and wilful, over a period of up to one hour, by a supervisor in charge of other employees, whose actions endangered his own and the other employees’ lives, whose actions were the subject of an instruction one hour beforehand and was not dissimilar for the breach two years earlier for which the whole team had been retrained and which had been the subject of a regular update or reminder within work groups and where he, too, initially and briefly lied on two occasions when interviewed.  Mr Portilla has considerably longer service than Mr Chomkhamsing and should be given credit for his safe working during that time.  I therefore find that Mr Portilla’s dismissal was unfair by reason of the more lenient treatment given to Mr Chomkhamsing. 

240   I turn to consider the relief to be ordered.  The appellant argues for Mr Portilla’s reinstatement.  In his evidence, Mr Portilla expressed his regret for what occurred and said he hoped to have another chance.  By s.23A(3) the Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

241   The decision whether or not to reinstate Mr Portilla is an exercise of discretion.  I take into account his length of service; twenty-seven years is a considerable period of time.  During that time, and to a period four months prior to his dismissal, there is no suggestion that Mr Portilla was other than a good and satisfactory employee.  He was not primarily at fault in his first safety incident four months before he was dismissed and he demonstrated a safety awareness on that occasion even if it was inadequate.  The conduct for which he was dismissed, while not quite a single act, cannot be fairly described as a pattern over the time of his employment. 

242   The evidence of Mr Sproule at [89] of his statement of evidence and when cross-examined at page 139 of the transcript, of Mr Swinnerton at [135] and [136] and of Mr Cook at [56] contain a common theme: Mr Portilla showed a lack of awareness of safety and may possibly be involved in a serious incident again;  they lacked confidence in him and he would require constant and permanent supervision.

243   This evidence, however, is to be seen in context.  While I understand the sentiment given Mr Portilla’s conduct, I note that there was not the same reservation in BHPB in relation to Mr Chomkhamsing who, to a greater extent, showed a lack of awareness of safety and who may possibly be involved in a serious incident again.  Any lack of confidence in Mr Chomkhamsing was not such that he should be dismissed.  I conclude that the reservations in the evidence referred to above similarly are not sufficient to lead to the conclusion that, after 27 years’ employment, there cannot again be a proper working relationship between Mr Portilla and BHPB.  As to whether he would require constant and permanent supervision, I note the evidence that Mr Portilla’s employment as a bulldozer driver means that he is not directly supervised.  Given that BHPB has now made a rule regarding not walking on the stockpile, and Mr Portilla’s experience of having been dismissed for doing so, there is room for doubt that constant and permanent supervision will be required.

244   BHPB’s lack of confidence also relates to the fact that Mr Portilla lied during his interview.  It is important that his employer has trust in him.  The finding that Mr Portilla lied during the hearing is a relevant consideration.  Mr Portilla’s lying, which cannot be condoned by the Commission, is nevertheless to be seen in context.  This is not dishonesty of the type considered in Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312 where an employee used his employer’s property for his own private purposes.  The facts of this matter are very different (compare the similar observation of Scott J about Concut when His Honour referred  to it in the context of Mr Robinson’s conduct in BHP Billiton Iron Ore Pty Ltd v CFMEU [2002] WASCA 172; 82 WAIG 1188 at [37] and following).

245   Nor was Mr Portilla’s conduct within the category of acts of dishonesty or similar conduct found by the Full Bench to be destructive of mutual trust between employer and employee in Sargant v Lowndes Lambert Australia Pty Ltd (2001) 81 WAIG 1149 at [98] to which BHPB referred the Full Bench.

246   The context also includes the latitude that was given by BHPB to Mr Chomkhamsing’s lying.  Mr Portilla panicked when questioned and lied in order to preserve his job.  Mr Chomkhamsing also lied.  Mr Portilla subsequently found it difficult to recant from his original lie.  Mr Chomkhamsing did not.  While Mr Portilla’s conduct is unacceptable, it is also understandable: Mr Portilla did not want to lose his job of 27 years.  The words of Lord Maugham (in Jupiter General Insurance v Shroff (op. cit. at p.74) which were said in a different context) that one must apply the standards of men and not those of angels, are not inappropriate here also.  While I do not make light of Mr Portilla’s conduct, in the context of Mr Chomkhamsing also having lied, although for a lesser length of time, of Mr Portilla’s 27 years’ service and given his proficiency as a bulldozer driver and his complete familiarity with the work that he has done on the stockpile, and in the context of Mr Chomkhamsing not having been dismissed, the equity and substantial merits of the matter lead me to conclude that Mr Portilla should be reinstated.

247   I agree with the order to issue.

THE PRESIDENT:

248   For those reasons, the appeal is upheld and the decision at first instance varied.

Order accordingly