IN a recent win for resource employers, the Fair Work Commission has rejected an unfair dismissal case after a former employee of a major coal miner was found to have breached OHS standards by removing a Komatsu 730E truck tyre without the required competencies to do so.

Background

In August 2013, an electrician at Macmahon’s Eaglefield site in Queensland’s Bowen Basin, was deemed to have breached site operating procedures when he removed the tyre of a Komatsu truck without the competencies to do so, thereby endangering both his life and the lives of others.

Prior to the incident, the employee asked his shift supervisor to sign off on a job hazard analysis (JHA) related to preparing one of the large loader trucks for a tyre change-out. He later admitted that he had underestimated the risk on the JHA and that a supervisor cannot legally direct an employee to undertake an unsafe task.

Failing to list his full intentions on the JHA form, including the removal of tyre cleats and nuts, the employee’s shift supervisor signed off on the form but gave instructions to only “set up” the truck for the tyre fitter. Despite this, the employee proceeded to handle the tyre without ‘sufficient caution and judgement’.

In the weeks following the incident, Macmahon dismissed the employee with pay in lieu of notice, stating in a letter that he had ‘engaged in a high risk task without the authority or competencies to do so; disregarded and breached site procedures he was aware of; and but the safety of himself and others at risk’.

The Decision

Shortly after dismissal, the employee lodged an unfair dismissal claim against Macmahon, represented by AMMA before the Fair Work Commission in a recent hearing.

In deciding whether or not the employee’s dismissal was unreasonable, Deputy President Hamilton noted that the employee had previously been warned on two occasions regarding unsafe conduct, adding weight to witness statements that his colleagues ‘had no confidence in his ability to operate’.

“In a coal mine, there is both individual responsibility, as indicated by the Coal Mine Safety and Health Act 1999, as well as responsibility of the company. The general view taken of [the employee] by those that worked with him and observed his conduct was that he did not approach those responsibilities in an appropriate fashion,” Deputy President Hamilton said.

“The conclusion I have formed is that [the employee] engaged in a course of conduct which was careless and which was extremely dangerous in that it could have injured himself or anybody who happened to be in the vicinity.”

He noted that a tyre is compressed energy, and is highly dangerous, and this energy can be released in an explosion if not handled correctly. DP Hamilton went on to emphasise the importance of safety, stating “I refuse to accept that I or the employer should turn a blind eye to conduct of such an unsafe nature”.

On Macmahon’s decision to dismiss the employee, DP Hamilton said the organisation’s right to apply disciplinary procedures to enforce safe conduct in a dangerous place like a coal mine was balanced by evidence that a rigorous approach to safety and training employees existed within the company.

“Other employees entered into that training in good faith and respected the approach taken by Macmahon to training, and were concerned about the inappropriate approach to safety issues taken by the applicant,” DP Hamilton said.

Implications for Employers

Occupational health and safety on resource projects is of paramount importance, making it a top priority for resource employers in terms of training, implementation and maintenance.

The numerous facets of safe conduct on-site can make the OHS field a highly complex one, but first and foremost is ensuring your employees are qualified to carry out the duties they have been allocated. Of particular importance is the renewal and continuous update of qualifications to reflect new practices and technologies.

Fortifying safe work practices also means training your supervisory and managerial staff to carry out checks and balances that prevent unqualified individuals from carrying out procedures outside of their operational capacity.

A common strategy for managing these elements is the implementation of a code of conduct that outlines your organisation’s expectations for safe work practices. Including disciplinary actions liable to be taken in the event of a breach will reinforce the importance of good OHS, while also mitigating potential pressures associated with organisational response to unsafe conduct.

If you’d like advice about occupational health and safety on your worksite, including information about compliance with safe work legislation, contact your local AMMA office and speak to one of our AMMA employee relations consultants by clicking here.