BHP Coal has been ordered to reinstate an employee involved in a vehicle rollover after evidence produced by the employer failed to convince the Fair Work Commission that his poor decision-making caused the incident.

Here, AREEA employee relations counsel and adviser Lindsay Carroll, analyses this decision and the lessons employers can learn regarding their ‘evidentiary burden’.

The background

THIS unfair dismissal case arose following an incident at BHP Coal’s Goonyella Riverside Mine near Moranbah.

Mr Kenny, an employee of 28 years with BHP Coal was on shift in October 2014 when the Toyota Landcruiser Ute he was driving rolled over.

Commissioner Susan Booth heard that prior to the rollover, Mr Kenny had failed to complete two mandatory safety requirements: a fitness for work test called an Occupational Safety Performance Assessment Technology (OSPAT), and the remainder of a pre-start check of the vehicle.

Mr Kenny said his failure to undertake the safety requirements was an omission due to disruptions in his routine caused by multiple storms bringing winds, rain, hail and dust.

Analysis of the rollover site identified a 25-metre-long ‘soft spot’ known as ‘bull dust’ on the unsealed road. According to Mr Kenny, the prior weather conditions had made the soft spot undetectable and caused the vehicle to turn sharply to the left when he drove into it.

Following several investigations into the rollover, BHP Coal ultimately concluded that the soft spot (originally identified as the root cause) was a contributing factor, while the overriding cause was Mr Kenny’s ‘poor decision to sharply turn the vehicle at speed’. He was driving 20km below the speed limit at around 60km per hour.

He was also found to be driving in the centre of the road which was also considered inconsistent with BHP Coal’s requirements to drive to the conditions. Mr Kenny was dismissed due to BHP Coal’s lack of confidence in his ability to work in a safe manner.

The decision

Commissioner Booth did not believe the evidence adequately showed that the speed and driving line were dangerous or unsafe, or that Mr Kenny made a sharp left turn ‘either deliberately or negligently’. Therefore, BHP Coal’s assertion that it had lost confidence in Mr Kenny was not supported.

“I conclude on that basis, relating to the rollover, that the conduct stated as the reasons for the dismissal did not take place as alleged and there was not a valid reason for the dismissal,” she said.

“I add that on my assessment of the evidence, Mr Kenny’s omission to take the OSPAT, his failure to complete the pre-start check that he had started, and the rollover resulting from matters beyond Mr Kenny’s control, are not sufficient to cause BHP Coal to lose confidence in Mr Kenny’s ability to work safely in the future.

“As discussed above, the evidence is that Mr Kenny was a prudent and safety conscious employee. BHP Coal’s assertion of loss of confidence, integral to what it says is a valid reason for dismissal, is not supported by the evidence, and relies on undue emphasis being placed on the rollover and the omissions and insufficient emphasis being placed on other relevant factors including work record, experience and explanations for the uncharacteristic conduct and the rollover.”

Commissioner Booth went further, saying that even if Mr Kenny had made a dangerous turn in a panic, it did not warrant immediate dismissal based on a loss of confidence in his capacity to work safely.

She also noted that Mr Kenny’s dismissal was in contrast to the treatment (warnings and revocation of a licence) of two other BHP Coal workers involved in earlier rollovers between July 2014 and September 2014, and that BHP Coal had not changed its policy to zero tolerance of rollovers, including accidental ones.

“I consider the treatment of the earlier cases should have informed BHP Coal’s decision making, especially given the paucity of evidence supporting the proposition of intentional acts on Mr Kenny’s part,” Commissioner Booth said.

In ordering Mr Kenny’s reinstatement, Commissioner Booth noted his ‘unblemished’ 28-year work history with BHP Coal, his ‘sincere remorse’ at the incident, and the impact of the mine’s general manager to exclude him from working at the site as a contractor.

Mr Kenny also gained continuity of employment, with Commissioner Booth saying that not ordering it would ‘seriously diminish’ the reinstatement decision due to his long employment history.

However, when deciding on restoration of lost pay, she ordered a deduction of two month’s salary to reflect the two breaches of safety requirements.

Click here to read the full decision.

Implications for members: Evidentiary burden key to reinstatement

One of the more interesting aspects of this case is how the employer’s evidence was dealt with by the Fair Work Commission.

Under Section 387 of the Fair Work Act 2009, the criteria for the Commission to consider the harshness of a dismissal is very broad, potentially exposing employers to successful unfair dismissal claims even when at first instance the action seems justified. Further, the evidentiary burden to prove there was a valid reason for dismissal, and that this action was not harsh, is placed on the employer, not the applicant to an unfair dismissal claim.

In this case, the Fair Work Commission heard from an expert independent report backing BHP Coal’s interpretation of the incident and that careless driving involved warranted dismissal.

However, the Commissioner was highly critical of the report tabled by the employer, including the following aspects:

• The short, one-day turnaround between the report being commissioned and delivered to the employer;
• The lack of detailed information on the driving conditions provided by the employer to the traffic incident expert preparing the report;
• The lack of detail on the report’s research methodology and conclusions; and
• That the report’s author appeared to contradict himself when providing verbal evidence.

Commissioner Booth thus found the report provided by BHP Coal to be ‘simplistic’ and to offer no real evidence to support the management decision to terminate the applicant.

This finding, and the Commission’s decision to reinstate the employee, reinforces the need for employers to conduct thorough, well-documented investigations into workplace incidents.

It is also critical that the employer is seen to have as little influence as possible in framing the context of an incident when commissioning a report from an independent expert. It is critical to ensure that enough time is allocated for an investigation to be thorough and that the investigation is perceived as fair and balanced to both parties so that ultimately, there is substantial evidence to support any disciplinary action in case of a claim.

For advice on conducting thorough safety incident investigations, representation in workplace tribunals or any other dismissal/disciplinary procedures, please contact an experienced AREEA employee relations consultant at your local AREEA office.