respondent. Application dismissed; Commission finds dismissal was not harsh, unjust or unreasonable and that the dismissal was for a valid reason related to conduct; order PR720311 issued ([215]-[216]).
Key principles
An employee's deliberate or reckless failure to follow an employer's clear and repeatedly trained safety procedures (here the Accessing Procedure and the Isolation Standard) can...
Where an experienced employee and elected safety representative, who has received training and expressly identified required controls in a JSA, fails to apply those controls on...
It is not necessary for an injury or near miss to have occurred for a failure to follow safety procedures to amount to serious misconduct; the potential for serious and imminent...
Issues before the court
Whether the dismissal was for a valid reason related to the Applicant's conduct under s387(a) of the Fair Work Act 2009.
Whether the dismissal was harsh, unjust or unreasonable in all the circumstances (s387 overall test).
Whether the employer followed fair procedure in dismissing the Applicant.
Plain English Summary
An experienced tradesman and elected safety representative inspected a grader without following mandatory radio contact, lockout/tagout and testing steps required by his employer's safety procedures. The Fair Work Commission found this failure — given his role, training and the potential for catastrophic harm — was a valid reason related to conduct and that dismissal was not harsh, unjust or unreasonable; the unfair dismissal application was dismissed.
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Cited legislation
2 cited instruments linked from this judgment.
Australia (Commonwealth)
Deep Dive
1,535 words · generated 21/07/2026
What happened
On 6 December 2019 Mr Jay Scoffern, an auto-electrician employed by Griffin Coal since 2006 and an elected workplace safety representative, was sent to inspect a grader (machine 7680) for a steering fault ([4]-[6], [5], [6]). He drove into the pit, observed the grader as unmanned with blade and rippers down and no lights on, and parked his light vehicle within the grader's footprint (inside the 30-metre exclusion zone). He conducted a close visual inspection of steering ram sensors, placing his shoulder or elbow against the tyre area and being within 1–2 metres of the sensors ([8]-[9], [14], [19]). He did not make radio contact from outside the exclusion zone, did not remain outside the exclusion zone initially, and did not apply tags/locks or test for 'dead' prior to inspection ([17], [30], [33]-[34], [38]).
After a colleague (Mr Ingarfield) drove up and asked whether he had his lockout/isolation tags, Mr Scoffern retrieved a blue commissioning tag and later attached it and connected his diagnostic computer, continuing investigation work ([45]-[49]). Griffin investigated the incident, characterised the Applicant's conduct as an isolation/accessing failure and serious misconduct, and after disciplinary processes dismissed Mr Scoffern (with five weeks' pay in lieu of notice). He made an unfair dismissal application to the Fair Work Commission; following hearing and arbitration, Commissioner Williams dismissed the application ([157], [174], [1]-[3], [215]-[216]).
Why the court decided this way
The Commission's reasoning flowed from statutory criteria in s387 of the Fair Work Act 2009, which requires assessment of whether there was a valid reason for dismissal related to capacity or conduct and other procedural and contextual matters ([180]-[181]). The Commission concluded the Applicant's failure to comply with two core safety instruments, the Accessing Procedure (Safe Working Instruction) and the Isolation Standard, constituted a valid reason related to conduct because:
The safety procedures required (inter alia) that an employee remain outside the 30-metre exclusion zone and establish positive radio/visual contact before entering, and that all plant under inspection be isolated, locked and tagged and tested for 'dead' before inspection ([26], [36]-[41], [88]-[89], [191]);
The Applicant was well trained, had completed induction and isolation training and, as a safety representative, was expected to model compliance ([92]-[98], [116]);
He had in a JSA himself identified controls such as calling the machine, following lock procedure and clear communications yet did not follow them on the day ([69]-[72], [212]);
The procedures exist to guard against low probability, catastrophic consequences; potential for death or serious injury is sufficient to constitute serious misconduct even absent actual injury ([76]-[79], [90], [160], [166], [210]).
The Commission also took into account that the Applicant had been notified, given an opportunity to respond and procedural requirements were met; the employer is a large entity with HR resources; and the Applicant maintained he had acted safely and did not accept the gravity of his conduct, factors that supported Griffin's assessment of seriousness and the consequence of dismissal ([202]-[206], [172], [176], [212]-[214]). Consequently, dismissal was not harsh, unjust or unreasonable ([215]).
Before and after state of the law
Before this decision, the Commission and authorities treated safety breaches as potentially constituting serious misconduct where there is a serious and imminent risk to health and safety, including decisions cited such as Beltrame v Essential Energy adopting principles in Butson v BHP, recognising that regulatory definitions and Commission jurisprudence permit dismissal for safety non‑compliance even where no harm occurred ([161], fn 57).
This decision reiterates and applies those principles in the specific factual setting of a mine site with high‑risk mobile plant: it confirms that strict compliance with lockout/tag and accessing protocols can be a valid reason for dismissal, and that the lack of an actual incident does not prevent an employer from treating non‑compliance as serious misconduct where potential catastrophic risk is present ([160], [166], [209]-[211], [201]). Practitioners should see this as reinforcement that objective mandatory safety steps, widely trained and repeatedly emphasised, form an enforceable baseline of conduct.
Key passages with plain-English translation
Paragraph 191: "Regardless of whether task number 2 or task number 3 ... there are common steps required ... remain outside a 30‑metre exclusion zone ... attempt to make radio contact ... apply locks and tags ... before inspection."
Plain English: Even if you debate which subsection of the procedure applies, both require you to stay 30 metres away, radio the operator, and lock/tag the machine before examining it.
Paragraph 198: "Even though the Applicant was certain there was no one ... he was still required by SWI to attempt to make radio contact ... The fact he was correct in his assumption does not excuse his failure ..."
Plain English: You cannot rely on your gut or a supervisor's statement; the written procedure requires objective verification steps.
Paragraph 210: "It is not necessary for someone to be injured or for there to be a near miss ... for that failure to be viewed as a serious breach ..."
Plain English: A breach of safety rules can be serious even if nothing bad actually happened.
Paragraph 201: "Mr Scoffern's failure ... was a valid reason for dismissal related to his conduct."
Plain English: The Commission found the employer had good reason to dismiss him because of what he did.
What fact patterns trigger this precedent
This decision is directly applicable where:
An employee with substantial training and/or a safety representative role breaches clear, written, repeatedly enforced safety procedures relating to lockout/tagout or accessing heavy plant; and
The breach involves entering exclusion zones, failing to make mandatory radio/visual contact, failing to lock/tag and test for 'dead', or similar procedural steps designed to prevent catastrophic hazard; and
The employer can show the procedures are reasonable, have been updated and trained (particularly after serious incidents), and that the breach could have exposed the employee or others to serious and imminent risk even if no injury occurred.
Less likely to apply where procedures are ambiguous, not trained for the employee, or where the employer's enforcement is inconsistent and the specific breach is genuinely minor and without foreseeable catastrophic potential.
How later courts have treated it
This decision itself cites Commission authority (Beltrame adopting Butson) for the proposition that safety breaches can be serious misconduct and that context matters (fn 57, [161]). Although this decision is a single-member FWC arbitral decision, its reasoning follows established Commission practice emphasising objective compliance with safety procedures and the permissibility of dismissal for safety-related conduct even absent actual harm ([160], [201], [215]). Practitioners should monitor subsequent FWC decisions and Full Bench opinions for any recalibration, but as of this decision the approach is consistent with prior Commission authorities cited.
Still-open questions
Ambiguity in which step of a multi‑task SWI applies: Commissioner Williams dealt with this by focusing on common mandatory steps across tasks ([190]-[191]). But where a procedure's tasks materially differ, there remains a question about how ambiguities are resolved and when an employee's honest confusion might mitigate to make dismissal harsh. The judgment notes the Applicant claimed uncertainty but the Commission found his conduct inconsistent with that claim ([186]-[189]). Future cases may test more ambiguous or poorly drafted SWIs.
Comparative disciplinary treatment: The Applicant pointed to apparently lenient outcomes for others (eg Mr Ingarfield or contractors). The Commission accepted some differences explained by factual distinctions (eg partial vs full breaches) ([124]-[126]). Yet the precise threshold for inconsistent treatment to render dismissal harsh remains fact-specific and unsettled in edge cases.
Weight of the employee's role as a safety representative: The decision treated the Applicant's representative role as aggravating because he should model compliance ([116], [172], [176]). How heavily tribunals will weigh representative status against long service, prior good record and isolated nature of breach will continue to be context-driven.
The interplay between incident risk rating and disciplinary seriousness: The Commission emphasised these are distinct evaluations ([209]-[211]). The line between a 'low risk' incident and a 'serious misconduct' breach will require further articulation, particularly where investigation risk ratings and disciplinary conclusions diverge.
Procedural mitigation through remediation: The Commission took absence of remorse/insight into account ([214]). There remains an open question about when effective acceptance, retraining or remedial steps post‑incident could render dismissal disproportionate.
Practical takeaways for practitioners
Ensure SWIs and isolation standards are clearly written, trained, and evidenced as communicated; keep contemporaneous training records ([78]-[85], [92]-[95]).
Where disciplining for a safety breach, document the connection between the breach and potential catastrophic risk; procedural fairness remains vital (notify, allow response, allow support person) ([202]-[204], [132]-[137]).
Employees in safety‑critical roles, particularly elected representatives, are likely to face higher expectations; mitigation arguments should emphasise ambiguity, genuine mistake, prior instruction, immediate remedial action and acceptance of responsibility ([184]-[186], [212]-[214]).
Employers should be consistent in enforcement and record reasons for any differential treatment against comparable breaches to avoid claims of capriciousness or inconsistency ([100]-[104], [124]-[126]).
This decision underscores that in high‑risk industries, objective compliance with lockout/tagout and accessing protocols is more than internal policy; it can form the legal foundation for dismissal when breached in circumstances presenting potential for serious and imminent harm ([88]-[90], [160], [201], [215]).
Judgment (91 paragraphs)
[1]
Jay Scoffern v The Griffin Coal Mining Company Pty Ltd [2020] FWC 3201 (23 June 2020)
[1] This decision concerns an application made by Mr Jay Scoffern (Mr Scoffern or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is The Griffin Coal Mining Company Pty Ltd (Griffin or the Respondent).
[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.
[3] At the hearing of this matter Mr Scoffern gave evidence and called Mr Glenn Davis (Mr Davis), Mechanical Fitter. For the Respondent evidence was given by Mr Warren Hann (Mr Hann), Commercial Fleet Manager and Mr João Paulo Da Silva Fernandes (Mr Fernandes), General Manager.
[6]
[4] The Applicant began working for Griffin in September 2006. He was employed as an Auto-Electrician at Griffin's mine in Collie.
[5] The Applicant was a workplace delegate for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) and an Occupational Safety and Health Representative (Safety Representative) at the mine. Griffin was aware he held these positions.
[6] His evidence was that on 6 December 2019, he was asked by Supervisor, Chris Pointon (Mr Pointon), to go to Pit 3 to have a look at a steering fault on grader 7680. Mr Pointon told him that the machine had been abandoned in the coal hole with a steering fault and that the production crew had parked it out of the way. He told him that one of the fitters had gone to look at the grader but that they could not fix it as it was not a mechanical issue; it was an electrical issue.
[7] At the time, it was also approaching knock-off time for the production shift, so the on-duty operators were about to go home.
[8] The Applicant says he drove the work utility ute to the location of the grader. He says he saw that the grader was shut down, unmanned and its blade and rippers were down. He says this was consistent with the advice he had received from Mr Pointon.
[9] He says he made a careful observation of the grader as he drove the ute for possibly 200 to 300 metres as he approached it and was actively looking at the grader and assessing the situation. There was no vehicle parked near the grader.[1]
[10] The grader is a one seat machine with a glass cab. The Applicant's evidence was that it is a skinny machine with nowhere to hide. He says if someone was present he would have seen them.
[11] The Applicant explained the chain of information passing between people on-site to the person (like himself) who attends faulty plant. He agrees it is possible for information to get muddled at some point.
[12] The Applicant agrees miscommunications on-site does happen and could mean he is directed to attend a problem with one piece of plant, but it is actually the wrong piece of plant. He agrees that sometimes he is sent out to fix a problem with plant he has been told is faulty but actually finds that it is in fact working. He has had occasions where he is told to attend to a truck that would not start but when he gets there it has been started.
[7]
To provide a Safe Work Instruction (SWI) to ensure the safety of all employees, visitors and contractors while accessing and egressing heavy equipment on site at Griffin Coal Mine (GCM) in a manner which assists in identification and possible courses of action to be taken in such situations.
[8]
ScopeThis SWI includes descriptions of, recognition of and special requirements for identifying potentially dangerous situations related to safe access and egress of heavy equipment in the field, as required by legislation and in accordance with the site procedures.
[9]
Due to their size and height of platforms involved, large equipment and vehicles can be difficult to:
[10]
Access and Alight (maintain 3 (three) points of contact)
Maintain and Clean
Visually see persons accessing and egressing
Known and common blind spots.
[11]
Serious injury or death from falls, slips and trips
• Repetitive strain injuries to backs and legs."
[12]
[24] The SWI goes on to identify four types of tasks and for each task prescribes a particular procedure which is a sequence of specific actions that are to be followed.
[25] The tasks are:
Safely accessing and egressing operating earthmoving equipment.
Approaching a heavy vehicle when it cannot be determined if there is an operator or any other personnel on board.
Mobile servicing and maintenance in-pit where LV's are required within the 30-metre exclusion zone.
Emergency egress e.g. operator being trapped in the event of a fire.
[26] The first three tasks, respectively, include steps that prescribe the following actions:
[13]
Step 2 (of Task 1): No one shall approach and try to access an operating piece of equipment within the 30-metre exclusion zone without first making positive radio contact and then visual contact with the operator.
[14]
Step 1 (of Task 2): Remain outside the 30-metre exclusion zone and attempt radio contact.
[15]
Step 1 (of Task 3): The service or maintenance fitters' vehicle shall only enter the 30-metre exclusion zone once the heavy equipment is parked and ready for servicing and positive communication has been received. Once established the operator must get out of the cab and onto the ground.
[16]
[27] It is only in a case of emergency egress that there is no requirement to make positive radio contact or communication or attempt to make radio contact before entering the 30-metre exclusion zone.
[28] Immediately under the four task types with their respective actions is the following (the initials JSA stand for Job Safety Analysis):
[17]
"JSA'sAny changes in conditions which affect this SWI or when there is not a procedure covering the task you are doing then a JSA must be completed."
[18]
[29] The Applicant's evidence was that the applicable task under this SWI was not "Approaching a Heavy Vehicle when it cannot be determined if there is an operator or any other personnel on board" but rather was "Mobile servicing and maintenance in-pit where LV's are required within the 30-metre exclusion zone".[13]
[30] The Applicant under cross-examination conceded that considering the prescribed actions required by the task he says was applicable, "Mobile servicing and maintenance in-pit where LV's are required within the 30-metre exclusion zone", he had not established positive communication before entering the 30-metre exclusion zone and indeed did not attempt to do so. He explained he did not attempt to do this and could not achieve this because there was no operator on the machine, as he had been advised by his supervisor who allocated him the task.[14]
[31] The Applicant's evidence was that the particular situation he was in, in his opinion, were in conflict with some of the actions required for the particular tasks, prescribed in the SWI. [15]
[32] The Applicant had completed what Mr Davis referred to as a generic JSA. However, the Applicant did not complete a second JSA which he was required to do if he believed the procedures in the SWI (Accessing Procedure) did not cover the work he had been instructed to do.
[33] The Applicant did not place a danger tag on the grader before bringing his vehicle in close to the grader.
[34] The Applicant did not place a danger tag on the graders' isolation point nor did he test for Dead before checking the surrounding area and cab to ensure no one else was on board, but rather completed a visual inspection of the sensors and then returned to the ute to get his computer.
[35] The second relevant safe working instruction is entitled "Tag and Isolation Standard" (Isolation Standard).
[36] The introduction of the Isolation Standard explains as follows:
[19]
"In order to provide a safe system of work Griffin Coal provides, a lock out tag out system to effectively control the positive isolation of equipment and plant that could cause an injury or damage to equipment.
[20]
This Standard sets out the use of positive Isolation Lock's and Personnel danger, Commissioning, Out of Service and Special Instruction Tags. It also sets outs the use of Group Isolations, using different types of locking arrangements.
[21]
All Positive isolations will be done in accordance with the standard. Plant/Equipment isolation instruction will be followed. Where there is no instruction developed or where the instruction requires review then the isolation will be done using a JSA which will be approved by the area supervisor or their nominated delegate. Once the JSA has been finalised and used without change for a period of four weeks it will be submitted to be upgraded into a work instruction if deemed necessary.
[22]
This is required when working on/inspecting all plant where it is not necessary to have an energy source to perform the required task.
[23]
With the advancement in the methods of electrical control that are in use today, it is essential when isolating electrically operated plant, that the isolation is carried out by breaking the circuit at a whole current isolator. Under no circumstances while using the Personal Danger Lock or Tag can positive isolation be carried out on a control circuit. The energised tag must be utilised to protect personnel and equipment while work or testing is carried out on the energised control circuits."
[24]
[37] The Applicant in cross-examination explained he was familiar with the standards and he was required to comply with it when working on plant and equipment on-site. [16]
[38] In cross-examination the Applicant was referred to the following provisions in the standard.
[25]
Whenever any plant or equipment is under repair or inspection, it is essential that all employees, who are required to work on or inspect the plant or equipment. For any other purpose must achieve positive lock and tag the plant or equipment in accordance with this lock/ tag Standard.
[26]
Isolate ALL proper units in alignment with the instructions available. Where there is no instruction available then a JSA will be used to confirm the isolation for each identified piece of plant or equipment and where applicable is done in accordance with OEM's requirements, site plans, P&ID's or drawing or requirements set down by site. (not limiting)
[27]
Place your Personal Danger Lock or Tag on ALL proper switches, valves, main isolators or key rings. If a lock cannot be fitted a "Danger Tag" must be used in conjunction with a risk assessment approved by the department head or their nominated delegate
[28]
Testing for "Dead" must be carried out before work commences."
[29]
[39] His evidence was that he understood this applied to him and whenever he was working on or inspecting plant and equipment needed to lock/tag it.
[40] In answer to how one would isolate and lock off the grader the Applicant explained the grader has a starter isolator and the battery isolator, so you would assess the situation regarding whether you need the power on, or did you not need the power on at all and you would tag the appropriate isolator. You would lock the appropriate isolator.[17]
[41] The Applicant's evidence was that the reference to "Testing for "Dead"..." means that if you were locking a piece of plant out and you did not want the power on you would lock it out and then you would conduct the test, that is, you would try and start it and make sure it did not start.[18]
[42] He explained this was necessary even though it had already been locked because you could have the situation where the locks are defective.
[43] Blue tags are commissioning tags. The Applicant's evidence is that this is what you use on a machine if you want to run it and conduct a test.
[44] When the Applicant first inspected the grader, he did not see a yellow out of service tag, but he did not think about that fact particularly.[19]
[45] The Applicant's evidence in chief was that after having visually inspected the sensors, as he was walking back to the ute, Mr Ingarfield drove up to him in a separate vehicle. The Applicant says he should not have done this, as he did not ask the Applicant's permission to enter the 30-metre exclusion zone around the grader before he approached.
[46] The Applicant says Mr Ingarfield asked him if he had his lockout and isolation tags with him. The Applicant replied that he did. Mr Ingarfield then told him that he had not fitted them to the grader despite having been in the footprint of the machine. The Applicant says he agreed with Mr Ingarfield that he had not yet fitted his tags.
The Applicant's evidence is that he grabbed his blue commissioning tag from the ute. He says Mr Ingarfield then drove off.
[30]
"Griffin does not rely on common sense or past practices to guard against risks and hazards when carrying out its operations. It relies on having appropriate safety procedures and policies in place which must be strictly complied with by the workforce. These safety procedures protect the individual worker, their workmates and anyone involved in Griffin's operations from hurting themselves or others and causing damage to Griffin's property."
[31]
[76] In 2018, a worker was fatally injured at the Griffin's Ewington mine site.
[77] He says Griffin then conducted an immediate review of its operations and the applicable safety procedures and policies. Since then Griffin has been working to prioritise strict compliance with all safety procedures and policies.
[78] Griffin updated its procedures following the fatality.
[79] All employees were then required to participate in training about the new procedures, accompanied by an assessment.
[80] Training was rolled out either face-to-face at toolbox meetings or, if the worker was not in attendance at the safety toolbox meeting, through Griffin's online training system.
[81] Another method of ensuring workers are trained on procedural updates is by a competent person, usually a supervisor or training manager, providing a copy of the updated procedure to the worker, discussing it with them and then asking the worker to sign to confirm their understanding. Following the completion of the training, a paper or online assessment must be completed.
[82] Two fundamental safety procedures which all Griffin workers are required to comply with are the Accessing Procedure and the Isolation Standard (together, Safety Procedures).
[83] The Isolation Standard was updated in October 2018.
[84] A review of the procedures around the Accessing Procedure was undertaken following an incident which occurred in April 2019 and upon receiving an improvement notice issued by the Western Australian Department of Mines, Industry Regulation and Safety to ensure the safety of all employees, visitors and contractors while accessing and aggressing heavy equipment on-site. Accordingly, the Accessing Procedure was updated in August 2019.
[85] The Accessing Procedure applies to any worker who is required to operate, approach or maintain a piece of equipment. It is designed to ensure the safety of all Griffin employees, visitors and contractors by providing steps that workers must take when accessing and egressing heavy equipment on-site.
[32]
(a) A worker removed another worker's Personal Danger Lock and Tag from a heavy vehicle truck without permission while conducting maintenance. After an investigation, it was determined that the worker had breached Griffin's safety procedures and so the worker's engagement on-site was ended by Griffin. Subsequently, the worker's employment was terminated. A worker who observed the breach but failed to report the incident was stood down without pay for one week. The worker who had originally locked and tagged the truck and failed to remove it following his completion of the work was given a written warning.
[33]
(b) A worker failed to place a Personal Danger Lock and Commissioning Tag on a grader when he was looking for an oil leak, which involved him lying on the ground and working under the engine bay. The worker also subsequently failed to place a Commissioning Tag on the grader when it was being run. The worker's engagement on-site was ended by Griffin.
[34]
[102] In these incidents, Griffin initiated a directive to the contracting entity about the removal of the workers from site and for there to be no further engagement. Any disciplinary action was ultimately taken by the contractor.
[103] These incidents are examples of Griffin taking a strict approach to all safety breaches. That approach is consistent regardless of whether the workers are Griffin employees or employees of contractors.
[104] Following these incidents, Mr Hann informed the maintenance teams of the circumstances of the incidents and the responsive action taken. This generally occurred at the safety toolbox meetings. He did this because he wanted to make sure they knew and understood the seriousness of such safety breaches and the consequences of them. He was aware that the superintendents and supervisors addressed the tradesmen on these incidents at the pre-start meetings.
[105] Mr Hann's evidence was that he has worked extensively on the graders himself and to inspect the sensors the Applicant was checking one needs to be right in the area where the sensors are, and one could not inspect them without actually going and feeling them and looking at the wiring and the sensors themselves.[29]
[106] His evidence was you could not do an initial visual inspection from where the grader tyres are. This was because of the location and position of the wiring and sensors which are up against the chassis in between the wheels and the blade of the grader.[30]
[107] With respect to the Move and Test Procedure which Mr Davis mentioned in his evidence, Mr Hann explained this is not applicable to the job the Applicant was attending to in the active mining area. The Move and Test Procedure applies to working on plant or equipment in the controlled environment around the workshop which is separate from the operations area.[31]
[108] Under cross-examination Mr Hann did not agree that when the Applicant approached the grader he was able to determine that there was no operator on board. His evidence was there is no way you could determine there was no operator without first complying with the Accessing Procedure.
[35]
[147] Mr Scoffern was employed by Griffin for more than 13 years. He has no relevant disciplinary record.
[148] It is submitted the incident that occurred on 6 December 2019 was a non-event. It was so insignificant that no reasonable employer would have dismissed a 13-year employee with a clean record over that incident.
[149] Under that matrix, the incident could only have been classified as a "very low" risk incident.
[150] There was no one other than Mr Scoffern near the grader at the time that he was conducting his visual inspection.
[151] Mr Scoffern knew this at the time because he had been told as much by Mr Pointon and because he could see with his own eyes that there was no one else near the grader. The attaching of tags to the grader before the inspection would have made no practical difference.
[152] This incident was no more than a procedural breach where death or permanent disablement had almost no chance of occurring due to:
Mr Pointon a supervisor independently found that the incident was a low to very low risk incident.
Griffin's investigation team found that the incident was a minor incident.
[153] Mr Scoffern's conduct was a Category 1 incident under Griffin's Disciplinary Action Policy at clause 4.2, which is a minor breach of safety standards. Under clause 4.5 of that policy, the action that Griffin ought to have taken against Mr Scoffern was to counsel Mr Scoffern and place a Diary Note on his file. This is especially so given the non-serious nature of the incident and the fact that it was Mr Scoffern's first safety-related incidents over his 13 years of employment.
[154] If anything, Mr Ingarfields's conduct, the Applicant submits, was more serious because he entered the exclusion zone without first seeking permission from the Applicant who was working in the area at the time. Mr Ingarfield was not dismissed.
[155] The Applicant submits the application should be granted with an order for reinstatement and compensation.
[36]
[156] The Commission is not required to 'stand in the shoes' of the employer but is required to be satisfied that the termination of the employee was for a valid reason. In order for an employer's reasons to be valid they should be "sound, defensible and well founded" and should not be "capricious, fanciful, spiteful or prejudiced".
[157] In this case it is submitted, Griffin held that Mr Scoffern had engaged in serious misconduct on 6 December 2019, when he failed to comply with the Safety Procedures. In the invitation to the disciplinary meeting letter, Griffin set out the allegations against Mr Scoffern as follows:
[37]
"1. It is alleged that on 6 December 2019, you wilfully and deliberately failed to isolate the mobile plant prior to starting your work. If substantiated, this allegation is considered serious misconduct under the Fair Work Regulations. Such conduct is inconsistent with the continuation of your contract of employment and has the potential to cause a serious and imminent risk to the health and safety of a person, and viability of Griffin Coal's business (Isolation Failure); and
[38]
It is alleged that on 6 December 2019 you wilfully and deliberately failed to isolate the mobile plant prior to driving a light vehicle within the exclusion zone. If substantiated, this allegation is considered serious misconduct under the Fair Work Regulations. Such conduct is inconsistent with the continuation of your contract of employment and has the potential to cause a serious and imminent risk to the health and safety of a person, and viability of Griffin Coal's business (Accessing Failure)."
[39]
[158] The Respondent submit had Mr Scoffern complied with the processes set out in the Safety Procedures, the Isolation Failure and the Accessing Failure would not have occurred.
[159] Griffin says Mr Scoffern should have:
[40]
(a) Radioed from outside the 30-metre exclusion zone in order to make contact with any personnel working on or around the grader;
[41]
(b) Parked his light vehicle outside the 30-metre exclusion zone and approached the grader on foot;
[42]
(c) As he approached the grader on foot, called out to try and attract the attention of any personnel working on or around the grader;
[43]
(d) Isolated the grader (to stop it from being started or moved) and tagged it (to indicate to others that he was working on it) before he began his visual inspection of the grader.
[44]
[160] The Fair Work Regulations 2009 (Cth) at 1.07 defines 'serious misconduct' to include "conduct that causes serious and imminent risk to: the health or safety of a person".
[161] In analogous matters involving an employee's dismissal for a breach of safety procedures, the Commission has taken the following matters into account:
[45]
(b) whether the breach was isolated or recurring in nature;
[46]
(c) the company's policies setting out safety procedures and consequences for breaches;
[47]
(e) whether the employee concerned was expected to set an example.[57]
[48]
[162] Griffin employees are trained that it is not safe to make assumptions about apparently unattended plant or vehicles. According to the Safety Procedures, it is foreseeable that even when a vehicle is supposed to be unattended an operator could be in the wrong plant or vehicle. A trainer or trainee could be using the vehicle or plant, a fitter could be testing the plant or vehicle.
[163] Furthermore, a non-isolated plant (i.e. a plant which can be started and potentially moved) poses a particular threat to the safety of the workforce. There are continuous, simultaneous operations undertaken by various work groups on Griffin's mine site and it is necessary to control and execute those operations in a way which avoids risk and injury to all personnel.[58] The act of isolating and tagging a vehicle on which a worker is operating provides a physical and visual safety barrier and indicates to other workers that someone is carrying out work on the vehicle.
[164] Even if the risks posed by working on heavy equipment and mobile plant are relatively unlikely to occur, they are real and may result in injury or death. The reason Griffin requires strict adherence to the Safety Procedures is to guard against events that might only have a small chance of occurring, but which could have catastrophic consequences.
[165] Accordingly, when working in this high-risk environment with heavy vehicles and mobile plant, the potential for injury or death should be regarded as imminent unless the mandatory rules are being followed.
[166] Mr Scoffern continued to claim throughout the investigation and disciplinary process that he believed his actions had been safe.[59] However, the situation could not have been safe given the Safety Procedures were not followed.
[167] The Respondent submits the evidence supports a finding that it was unlikely but not impossible that another worker could have been working on the grader prior to Mr Scoffern's arrival and not heard Mr Scoffern approach because he did not comply with the requirement to radio ahead and call out to attract attention (Accessing Failure) or that another worker could have begun working on the grader after Mr Scoffern had commenced his inspection of the grader because the absence of a tag meant they did not realise Mr Scoffern was there (Isolation Failure). Either scenario could have exposed Mr Scoffern or his co-workers to significant risk and injury. In this kind of high-risk environment, the notion of a 'minor' breach of the Safety Procedures is meaningless.
[49]
(a) endangered the safety of Mr Scoffern and his colleagues; and
[50]
[169] It is submitted the Applicant's actions demonstrate an absence of reasonable judgment in situations in which the Safety Procedures must be applied even when they appear unnecessary or burdensome.
[170] Mr Scoffern's actions on 6 December 2019 were either:
[51]
(a) wilful in the sense that he intentionally refused to comply with the Safety Procedures; or
[52]
(b) reckless in that he did not even consider complying with the Safety Procedures on the day in question.
[53]
[171] Mr Scoffern's refusal to admit that he had erred and acted in a way which jeopardised his own safety and the safety of other workers on-site, amounts to a refusal to recognise or admit to the significance of the incident. This is something which Griffin was entitled to take into account in deciding to terminate.
[172] Mr Scoffern was an elected Safety Representative. A safety representative is required to assist Griffin's supervisors in ensuring procedural compliance by the workforce and run regular safety meetings. Ultimately, safety representatives are meant to model safe work practices.
[173] Given all of this, it is submitted, Griffin's decision to dismiss Mr Scoffern for his failure to comply with the Safety Procedures was based on valid reasons. The necessary relationship of trust and confidence between Mr Scoffern and Griffin could not survive the combination of his deliberate or reckless breach of the Safety Procedures and his steadfast refusal to acknowledge the seriousness of the breach and its potential ramifications on the safety of the workforce.
[174] Mr Scoffern was dismissed for serious misconduct. He was paid 5 weeks' notice.
[175] Whether dismissal was a proportionate response to Mr Scoffern's conduct is a relevant factor for the Commission to consider when determining whether a dismissal was harsh.
[176] It is clear that:
[54]
(a) compliance with the Safety Procedures is a core responsibility for all employees at Griffin;
[55]
(b) Griffin regularly trained employees on the Safety Procedures;
[56]
(c) Mr Scoffern was familiar with the Safety Procedures;
[57]
(d) Mr Scoffern either knowingly chose not to follow the Safety Procedures or recklessly disregarded them; and
[58]
(e) Mr Scoffern's conduct on 6 December 2019 was repudiatory of the essential conditionsof his employment obligations.
[59]
[177] These factors support the proposition that Mr Scoffern's conduct should be treated as serious misconduct justifying his dismissal. In the circumstances, Griffin was entitled and justified to dismiss him summarily but paid him 5 weeks' notice.
[178] Throughout the investigation and disciplinary process, Mr Scoffern never gained insight into his misconduct and maintains in his claim that he never acted unsafely. This demonstrates a fundamental inability to accept the importance of compliance with the Safety Procedures and the seriousness of his conduct.
[179] Consequently, the Respondent submits the application should be dismissed
[60]
[180] Section 387 of the Act sets out particular matters the Commission must take into account when considering whether a dismissal is harsh, unjust or unreasonable. This is set out below.
[61]
"387 Criteria for considering harshness etc.
[62]
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
[63]
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
[64]
(b) whether the person was notified of that reason; and
[65]
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[66]
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
[67]
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
[68]
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[69]
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[70]
(h) any other matters that the FWC considers relevant."
[71]
[181] The Applicant is an experienced employee having worked for 13 years work on this site.
[182] Griffin as is normal for all mine sites operates under a comprehensive set of safety policy and procedures.
[183] Relevant in this matter are the SWI or Accessing Procedure and the Isolation Standard.
[184] The Applicant has received training in these Safety Procedures. He agrees he is familiar with them.
[185] The Applicant was an elected health and safety representative on the site and consequently has received extensive additional training in safety.
[186] In parts of his evidence at the hearing the Applicant said he was uncertain which of the four tasks prescribed in the Accessing Procedure applied to the work he was allocated to do on the grader on 6 December 2019.
[187] This however is not consistent with the evidence he gave at the hearing as to how he approached that task. His oral evidence explained the steps he took having been instructed by his supervisor to attend the grader. He explained how he drove in the light vehicle towards the grader observing it and its surrounds from a distance and what steps he then followed.
[188] There is nothing in his evidence about how he acted on the day which is suggestive of him being uncertain as to what steps the Accessing Procedure required him to take.
[189] The Applicant's witness statement that he wrote the same day, 6 December 2019, makes no mention of any confusion or uncertainty regarding the requirements of the Assessing Procedure.[60]
[190] The Respondent's view is that it is entirely clear the work done by the Applicant fell within task number 2 of the Accessing Procedure however, the Applicant argues the applicable task was instead task number 3, a view Mr Davis seems to support.
[191] Regardless of whether task number 2 or task number 3 as detailed in Accessing Procedure was applicable to the work the Applicant was doing, there are common steps required for both tasks which the Applicant should have followed. The first was that on approaching the grader he would first remain outside a 30-metre exclusion zone. He must then attempt to make radio contact or otherwise have positive communication with the operator. The other common step is that he must apply locks and tags to the grader as required by the Isolation Standard before undertaking an inspection or any work on the grader.
[72]
[201] Mr Scoffern's failure to comply with Griffin's safety procedures, specifically the Accessing Procedure and the Isolation Standard was a valid reason for dismissal related to his conduct.
[73]
[202] The Applicant was notified of the reason Griffin was considering dismissing him before the final decision to dismiss him was made.
[74]
[203] The Applicant was given an opportunity to respond to the reason the Respondent was considering dismissing him before their final decision was made.
[75]
[204] There was no unreasonable refusal to allow a support person present.
[76]
[205] The dismissal did not involve any criticism of the Applicant's work performance.
[77]
The size of the enterprise and the presence of Human Resource Management specialists
[78]
[206] Griffin is a large employer which does have specialist human resource management personnel, and this was appropriately reflected in the investigation and procedure leading up to dismissal.
[79]
[207] The Applicant has been employed for 13 years and prior to this had no relevant disciplinary criticisms.
[208] It is argued on behalf of the Applicant that the incident was no more than a procedural breach where there was no chance of any death or injury occurring. It was pointed out that the Applicant's supervisor assessed the incident on the day to be a low to very low risk and similarly in Griffins own Incident Report it found the incidents risk was categorised as low to medium.
[209] There was debate as to whether assessing the risk of death or injury arising from the Applicant's actions on that particular day is the same as determining how serious his breach of the Respondent's Safety Procedures was. In my view these are different issues and involve different judgements.
[210] It is not necessary for someone to be injured or for there to be a near miss because of an employee's failure to follow a safety procedure for that failure to be viewed as a serious breach of the employee's obligations.
[211] In my view this was not a mere procedural or administrative breach by the Applicant. The reality was the Applicant ignored multiple requirements in two separate safety procedures which he was obliged to follow. This was a serious breach of his obligations to his employer.
[212] On the day of the incident the Applicant had completed a generic JSA. For jobs that involve travelling to a machine, he had identified the controls and safe working procedures as being to call the area or machine. Separately, on the JSA he had identified for a job of, checking faults, the control and safe working procedure would be to follow the lock procedure and have clear communications to the operator.
[213] Even having identified these controls and safe working procedures himself and writing these into a generic JSA, which he signed on 6 December 2019, he failed to do these on the day when he approached and inspected the grader.
[214] Finally, the Applicant throughout the investigation process, the disciplinary process and at the hearing of this matter did not accept that he did anything seriously wrong. It is apparent the Applicant is either unwilling to or unable to accept he has failed to comply in multiple ways with his employer's critical Safety Procedures and that this is a serious matter.
[80]
[215] Taking all of the above matters into account, my decision is that the dismissal of Mr Scoffern was neither harsh nor was it unjust nor was it unreasonable. His dismissal was not unfair.
[216] Consequently, this application will be dismissed and an order [PR720311] to that effect will be issued.
[81]
[82]
C Fogliani of Fogliani Lawyers for the Applicant.
[83]
[28] Witness statement of Mr Glenn Davis, paragraph 7 and Attachment 6, FWC Court Book at pages 62 and 85.
[58] Witness statement of Mr Warren Hann, Attachment WAH-2, sections 3.1 to 3.2, FWC Court Book at page 249.
[89]
[59] Witness statement of Mr Jay Scoffern, Attachment JS-6, FWC Court Book at page 212.
[90]
[60] Ibid., Attachment JS-3, FWC Court Book at page 41.
[91]
Printed by authority of the Commonwealth Government Printer
Parties
Applicant/Plaintiff:
Jay Scoffern
Respondent/Defendant:
The Griffin Coal Mining Company Pty Ltd [2020] FWC 3201
Legislation Cited (2)
Work Act 2009
Work Regulations 2009
AI Analysis
Outcomerespondent
Disposition:
Application dismissed; Commission finds dismissal was not harsh, unjust or unreasonable and that the dismissal was for a valid reason related to conduct; order PR720311 issued ([215]-[216]).
[13] When talking about other employees the Applicant says that policies should be followed to the letter of the law.[3]
[14] Under cross-examination the Applicant explained that he first stopped the ute 5 metres away from the grader.[4]
[15] His evidence was that he knew the grader was unattended because there was no one in the cab, the blade and the rippers where down and there were no lights on.[5]
[16] He agrees the grader could be running with no one in the cab.[6]
[17] The Applicant did not stop the ute he was driving before he was within 30 metres of the grader and attempt to make radio contact with the grader. The Applicant at no stage attempted to make radio contact with the grader nor did he call out to draw attention.[7]
[18] The Applicant's evidence in chief is that having parked the ute he got out and inspected the left and right steering ram sensors at the front of the grader. This was part of his initial inspection of the machine before he started working on it. The Applicant says he then started walking back to the ute to get his computer and his blue commissioning tags.
[19] Under cross-examination the Applicant explained that when he was visually inspecting the sensors; his shoulder or elbow would have touched the flat of the graders' front tyre. In this position he would have been he says between 1 and 2 metres away from the sensors.[8]
[20] The grader had not been locked off by the Applicant.[9] His evidence was however that the grader was not running, the blade was down, the rippers were down and there was no operator. His evidence was that whilst inspecting the sensors if someone had entered the graders' cab and started the machine up, he would have seen them and they would have seen him.[10]
[21] The evidence is that the Respondent has developed and trained employees, including the Applicant, in using safe working instructions which are required to be followed.[11]
[22] Relevantly in this case there is a safe working instruction (SWI) entitled "Accessing and Egressing Heavy Equipment" (Accessing Procedure) The Applicant agrees this SWI was something he was required to apply when he was accessing the grader.[12]
[23] This SWI begins as follows:
[47]
[48] The Applicant's evidence in chief is that he attached his blue commissioning tag to the grader and plugged his computer in to diagnose the cause of the steering fault.
[49] He says that later that day he was asked to provide a written statement to Griffin about what had happened.
[50] Mr Davis was called by the Applicant to give evidence.
[51] Mr Davis is a Mechanical Fitter at the mine and also an Occupational Safety and Health Representative.
[52] His evidence was that when there is a safety incident an investigation team is assembled to determine what happened, assess the risks and to suggest ways to prevent similar incidents occurring in future.
[53] Griffin established an investigation team to investigate the incident involving the Applicant that occurred on 6 December 2019, Mr Davis was part of that team.
[54] He says no re-enactment of what occurred was done which is usual if a breach is serious.
[55] On Sunday, 8 December 2019 the grader was relocated from the position it had been in.
[56] He says that Mr Ingerfield did not stop the Applicant working and he completed the job on the day.
[57] He says he only saw a draft report of the investigation and was not invited to view or have input into the final investigation report. He said the final investigation report was quite damning and did not quite reflect the position he thought the investigation team held.[20]
[58] Mr Davis's evidence was the investigation team found that the Applicant's incident was minor in accordance with Griffin's risk matrix. The Applicant had completed a generic JSA for the job which showed he was going to use his tags.
[59] Mr Davis's evidence in chief was given those findings he was surprised the incident was viewed by human resources as serious misconduct.
[60] Mr Davis agreed that the Isolation Standard requires an employee to isolate and lockout a machine before doing a physical inspection.[21]
[61] His evidence was that once you isolated and locked out the machine you have to test for dead, by attempting to start the machine.[22]
[62] His evidence was that even though an employee may be confident they have put the lock in the right place and locked off the machine the policy still requires the employee to test for dead.[23]
[63] He explained that whilst this seemed unnecessary it was a requirement in the policy because there have been instances where there's been electrical faults where a machine could have an isolator that is not working properly, so the machine had power even though you thought it was off.[24]
[64] Mr Davis argued that there is a bit of a grey area in Griffin's isolation procedures. He queried what an actual physical inspection is versus a walk around inspection.[25]
[65] Mr Davis's evidence in re-examination was that he did not believe that the task under the Accessing Procedure applicable to the job the Applicant was undertaking was the task concerning approaching a heavy vehicle when it cannot be determined if there is an operator or any other personnel on board. He said this task did not apply because the Applicant knew there was not an operator. His evidence was the Applicant already had confirmation from his supervisor that there was no operator there.[26]
[66] Mr Davis's opinion was that the task in the Accessing Procedure relating to mobile servicing and maintenance in the pit was more relevant to the job with the Applicant was doing. Although he recognised this task talks about having an operator on board the machine, which he referred to as being a little bit of a grey area.[27]
[67] Mr Davis in his evidence went on to point out that if no tasks applied to the job an employee is doing, they are to complete a JSA.
[68] The evidence is that the Applicant did complete a JSA because he was uncertain which task in the SWI applied to the job on the grader.
[69] The JSA included in Mr Davis's witness statement which he refers to as "generic" completed by the Applicant on 6 November 2019, includes some controls and safe working procedures. [28]
[70] These include:
"call area / and machine"
"follow lock procedure"
"Clear comms to operator"
[71] The evidence of the Applicant is that he did not attempt to call the machine (the grader), he did not follow the lock procedure until after Mr Ingarfield had left and the Applicant made no attempt to establish clear communication with the operator.
[72] Considering the Applicant's own evidence I find he did not follow the generic JSA. The Applicant did not apply the particular controls he had listed in the generic JSA.
[73] Griffin called Mr Hann, Commercial Fleet Manager. Mr Hann has been employed by Griffin for 33 years and started his career as an apprentice auto electrician in 1987 and moved up through various positions including tradesmen, supervising, maintenance superintendent and then into his current role.
[74] He has known the Applicant since he also was a tradesman.
[75] He explained Griffin's approach to safety as follows:
[86] The Accessing Procedure provides step by step instructions for when workers are approaching a heavy vehicle in circumstances where it cannot be determined if there is an operator or any other personnel on board the vehicle in question.
[87] The Isolation Standard goes hand in hand with the Accessing Procedure and is to be used whenever any Griffin plant or equipment is under repair or inspection. It involves using physical locks and tags on Griffin's equipment to neutralise or isolate the equipment's energy source and prevents the inadvertent release of stored energy. It also provides a visual signal to other personnel that maintenance is being carried out on the vehicle in question. It is important for other workers to know that the equipment is being worked on so that they do not approach it, accidentally try to turn it on and use it while the maintenance worker is under the equipment or otherwise in a compromising position. If this was to occur, there is the potential for serious injury or death. Griffin always tells its workers that all equipment is hazardous until the Isolation Standard has been complied with.
[88] The steps outlined in the Isolation Standard can be summarised as follows:
Identification of the isolation point on the equipment. This is usually located at an accessible point on the equipment.
Placing a red Personal Danger Lock in the hole of the isolation point on the equipment. A Personal Danger Lock is a red padlock and personal to each worker and can only be unlocked by the worker's personal key. All isolators have a common hole which, when the equipment is turned off, the Personal Danger Lock can fit through to stop it from being physically turned back on. The Personal Danger Tag must then be attached to the arm of the padlock. The Personal Danger Tag is a red piece of paper, approximately 15 cm in length and 10 cm wide, which states the name and department of the worker and 'Do not operate'. A Personal Danger Tag is needed in addition to the Personal Danger Lock as it provides information as to who the lock belongs to. At this point, the equipment cannot be operated because the flow of electricity has been cut off by the lock. This prevents the inadvertent operation of the equipment by either the worker or someone else who is unaware of the worker's presence when they are working on or inspecting the equipment.
The worker can then perform the repair, maintenance or inspection of the equipment.
Once the work has been completed, the Personal Danger Lock and Tag should be removed from the equipment by the worker using their personalised key. If the job is not completed, the Personal Danger Lock and Tag must be removed and a black master isolation lock as well as an out of service tag should be put in its place in a similar fashion as the Personal Danger Lock and Tag.
[89] In some cases, a worker performing maintenance on a piece of equipment may require the equipment to be run to determine the source of the fault. If this situation arises, a blue Commissioning Tag must be placed on the equipment's ignition or control switch, or a control point, such as the operator's cab or the steering wheel. The Commissioning Tag is a blue piece of paper and approximately 15 cm in length and 10 cm wide. This provides a visible warning signal to other personnel who may inadvertently attempt to operate the equipment while the worker is testing it and are unaware of the worker's presence. Once a Commissioning Tag is in place, the Personal Danger Lock and Tag may then be removed, allowing the equipment to be powered on. Once the task is complete, the Commissioning Tag must be removed by the worker.
[90] The purpose of these Safety Procedures is to ensure sufficient controls are in place to prevent workers who are operating or maintaining equipment from suffering injury and preventing potential fatalities. The Safety Procedures are the primary means through which mine operators can prevent the risk of injury or harm to workers from materialising.
[91] A grader is a large piece of mining equipment. In Mr Hann's experience, if the Safety Procedures are not followed when accessing, operating or maintaining a grader it could result in significant injuries or death to the workers working on, or in the proximity of, the grader. By having the Accessing Procedure and Isolation Standard in place and complied with, Griffin can ensure the safety of the workers who access and maintain this equipment. Mr Hann says he knows this because he has personally worked on this equipment and his team works on this equipment routinely.
[92] Mr Scoffern underwent general induction training and an assessment on the content of the training on 15 February 2018, relevantly, the General Induction Training PowerPoint and Assessment which predominantly focuses on the purpose and process of isolating and tagging.
[93] Mr Scoffern completed isolation training on 19 December 2018 and competed an assessment on the content of the training.
[94] He said the most recent training Mr Scoffern participated in was on 31 October 2019. That training was about the recent updates to the Accessing Procedure. The training specifically dealt with the steps required prior to accessing a piece of equipment and the application of the tagging and isolation rules.
[95] Mr Scoffern was re-elected as a Safety Representative on 29 May 2019.
[96] A safety representative is required to attend a nationally accredited five-day course as well as training with Griffin's training department.
[97] Mr Scoffern had attended this training when he was first nominated in the role of Safety Representative.
[98] Every month a site safety committee meeting is held with Griffin's safety representatives and a team of managers to discuss high level safety concerns as well as safety developments in the industry. The safety representatives for the supply, maintenance and production teams attend on a rotating, rostered basis. Mr Scoffern attended four meetings in 2019.
[99] The safety representative's role is a central part of Griffin's workforce structure and safety culture. This role provides crucial support to supervisors to ensure all workers are complying with safety policies and procedures while offering safety role models for the broader workforce and a function to give and receive feedback on safety matters.
[100] Mr Hann noted in April and December 2019, there were several breaches of Griffin's safety procedures which resulted in disciplinary action and, on occasions the disciplinary action included an immediate end to the contracting relationship.
[101] The incidents were as follows:
[109] Mr Hann accepts that the Applicant was told by his supervisor that the grader was unmanned and that as he approached the grader he could see the cab was empty and there were no lights or beacons flashing and that the blade and rippers were down. His evidence, however, was that the Applicant could not from this ascertain that the vehicle was unmanned because the size of the machinery is such that there are hidden spaces and the procedure has been implemented so there are no assumptions made. His evidence was that mining is a very high-risk industry and there is no way from 30 metre distance to determine whether someone is in a large machine or hidden in a recess. This is exactly what the Accessing Procedure is to cover for.[32]
[110] His evidence was that if an employee is satisfied that a machine is not manned, and the employee can see that there is no one anywhere near the machine they should still doubt this and nonetheless treat the machine as unmanned and follow the Accessing Procedure.[33]
[111] Mr Hann did not agree that the appropriate task in the Accessing Procedure for the job the Applicant was doing was the task concerning mobile servicing and maintenance in pits.[34]
[112] His evidence is that this task in the procedure concerns planned maintenance in a segregated part of the pit, for maintenance which is in a controlled environment and this task does not apply to a breakdown situation, which was the case with the grader the Applicant was sent to.
[113] His evidence was that the Applicant was not able to skip over a step in the task because he believed the machine was unmanned. His evidence was the Applicant was required to treat the task as being one where there is heavy equipment where it cannot be determined there is an operator or personnel on board.[35]
[114] Mr Hann agrees that the Applicant was correct and that the grader at the time was unmanned. His assumption was correct.[36]
[115] Mr Hann confirmed there are real examples were a worker has not followed the lockout and tagging on a grader and was climbing on the back of the machine and fell off and was under the back wheel. His evidence was there has been numerous occasions where people have assumed that a vehicle has been isolated or unmanned and have been proven to be wrong.
[116] His evidence was that because the Applicant was a safety representative, he would know full well how serious the policies and procedures are and how important they are. He would be aware of them because as a safety representative it is his role to promote those procedures.[37]
[117] His evidence was that during the interview the Applicant on two occasions repeated that he did not believe what he had done was an unsafe act at all and all that was involved was an administrative error. He continually denied there was any breach at all other than an administration breach.[38]
[118] Mr Hann's evidence was there were real actual risks to the Applicant as a result of him not following the procedures properly. It would be possible for someone to start up the machine and run him over. Because the grader was still energised there is other risks for example if he had moved a wiring harness and it shorted out. He explained you isolate the power source so there is no energy that can move anything.[39]
[119] Even without another person in the grader if there is a short for instance, in the steering circuit, he believed the grader could still move.[40]
[120] Mr Hann acknowledged that if the Applicant was standing where he said he was then he would have been in clear view of anybody who went into the graders' cab and so the risk of him being injured by someone starting up the machine was insignificant.[41]
[121] Under cross-examination he again said that through the interview process there was no sign of the Applicant being remorseful or accepting he made an error.
[122] Mr Hann agreed that under Griffin's safety management system risk rating the incident was categorised as a low to medium risk. However, when Griffin look at the incident it is not just this safety rating that is taken into account they have to consider employees safety and also the business reputation.[42]
[123] Mr Hann rejected any suggestion that the fact the Applicant was a union representative or a safety representative was a factor in the decision to dismiss him.
[124] Mr Hann dealt with the alleged inconsistency where other workers in previous instances had not followed Isolation Procedure but had not been dismissed. In the example in question he explained the workers had isolated the piece of fixed plant machinery they were working on however, the procedure also required them to take other steps they had not, in his words it was a partial breach not a full breach of the Isolation Procedure.[43]
[125] Mr Hann evidence was that the Applicant's actions could not be described as a partial breach of the Isolation Procedure because he had no intention of putting any isolation tags on until Mr Ingarfield challenged him to do so. He had completed the task of inspecting the sensors and rams and was walking back to his vehicle without having isolated the grader.[44]
[126] Mr Hann rejected the Applicant's explanation, he said he was an experienced tradesman who understands the policies and procedures clearly and if he had any intention of using the isolation tags as required, he would have done it before he started work. For the Applicant to say that he was going to do it afterwards does not align. The fact that he inspected the machine only for a minute does not explain his actions at all. His evidence was the steps the Applicant took were all out of order.[45]
[127] Mr Hann provided a detailed explanation of the investigation into the incident and the disciplinary investigation including the disciplinary meetings up to and including the Applicant's termination.[46] I note that the Applicant accepts there were no procedural issues with the disciplinary process, that he was notified of the reason for his dismissal and given an opportunity to respond to that reason and he was not unreasonably refused to a support person.[47]
[128] Evidence was also given by Griffin's General Manager, Mr Fernandes.
[129] Mr Fernandes gave evidence about Griffin's approach to safety on-site and its overarching health and safety document which is the Safety Policy. His evidence also explained the role of SWIs and JSAs.
[130] His evidence explained the difference between the Incident Report which is usually immediately completed following an incident by the shift supervisor and is a record in Griffin's MYOSH system and the Incident Investigation Report, which is not recorded in the MYOSH system, but must be made later to the regulator where there is a more serious issue.
[131] Separately, where either an Incident Report or an Incident Investigation Report findings require action by human resources this is a separate process. Either of these reports may be used as part of an employee disciplinary process.
[132] Any disciplinary action is taken in accordance with Griffin's Disciplinary Action Policy which categorises incidents from Category 1 being least serious through to serious misconduct which is the most serious.
[133] Serious misconduct includes conduct that "... causes a serious and imminent risk to: the health and safety of a person...".[48]
[134] The process of a disciplinary investigation is quite separate from the safety investigations.
[135] Mr Fernandes' view was that the Applicant's conduct on 6 December 2019 was a very severe incident. He agreed with the classification that this amounted to serious misconduct. In his view it was of very high seriousness with an isolation breach and a high potential for risk. Failure to follow the Isolation Procedure can have serious consequences including fatal injuries.
[136] Ignoring the Applicant's actions would mean the direction Griffin was setting was that they do not take isolation non-compliance with safety protocols and procedures seriously.
[137] Consequently, his decision was that the Applicant's employment should be terminated for serious misconduct.
[138] Under cross-examination his evidence was that he did not agree with the low to medium risk assessment made by the safety investigation team into the incident.[49]
[139] His evidence was that a categorisation in terms of seriousness of an incident may change during the course of an investigation.[50]
[140] His evidence was that it struck him as unusual to treat a failure to isolate as low to medium risk and that a similar incident with a contractor lead to dismissal from site.[51]
[141] Under re-examination he drew a distinction between the rating of the risk of an incident and categorising the seriousness of the breach by an employee as being different concepts.[52]
[142] His evidence was that he was aware of the previous isolation breach by employees working on fixed plant where they had isolated the conveyors they were working on but not the main switch. He did not view that as comparable to the Applicant's particular failure to follow the Isolation Procedure.[53]
[143] Under cross-examination his evidence was the fact the Applicant's inspection of the grader perhaps only took a minute, which was then the duration of his isolation breach, was not a relevant consideration because the duration of the breach is not the issue because it only takes a few seconds for someone to be fatally injured on a mine site.[54]
[144] His evidence was that the Applicant made an assumption that the grader was unmanned but that is normally how incidents happen, when we make assumptions or take things for granted.[55]
[145] When asked whether the Applicant having worked with Griffin for 13 years who had only been involved in the one incident, which others described as low to medium risk could be trusted to come back to work, his evidence was that he did not accept that the Applicant could be trusted.
[146] Mr Fernandes explained that the disciplinary investigation identified the Applicant had never agreed with the Respondent's categorisation of the incident or the seriousness of the incident which in his role as a health and safety representative was unacceptable. He acknowledged that nothing did happen, which was just fortunate, but the potential for something to happen was serious. For Griffin to ignore an incident of that nature especially by a health and safety representative would not set the right direction in the workplace.[56]
[168] Griffin accepts that the incident was isolated. Nonetheless, Mr Scoffern's conduct:
[192] The Applicant did not take any of these steps.
[193] Further the Accessing Procedure provides that when there is not a procedure covering the particular task an employee is doing then a JSA must be completed.
[194] The Applicant did not complete a JSA for this particular task.
[195] The Applicant's evidence was that based on his supervisors' statement that the grader was unmanned plus his observations as he drove towards the grader, he knew there was no operator or other employee there. This assumption that the grader was unmanned was never an acceptable reason to ignore the steps he was required to follow in the Accessing Procedure.
[196] The system of safe working instructions and standards is designed to not rely on the subjective assessment of a situation by an employee. Rather the safe working instructions and standards oblige employees to take particular steps, even in situations where those steps may seem entirely unnecessary. This is because the safe working instructions and standards are designed to eliminate human error as much as possible.
[197] With regard to the possibility of human error in this instance it was possible that the Applicant's supervisors' statement that the grader was unmanned was wrong or that the Applicant misheard his supervisor. The Applicant agreed in cross-examination that miscommunications do sometimes happen on-site.
[198] Even though the Applicant was certain there was no one in or around the grader he was still required by SWI to attempt to make radio contact or have positive communication, but he did not. The fact he was correct in his assumption does not excuse his failure to follow the steps that are designed to double check that an assumption such as this, is actually correct.
[199] Separately, it is clear on the Applicant's own evidence that when he says he visually inspected the sensors he was within the footprint of the grader. However, before he positioned himself in this way he did not follow the steps in the Isolation Standard.
[200] The Isolation Standard requires, whenever any plant is under repair or inspection, that employees who are to work on or inspect the plant must first achieve positive lock and tag. The applicant did not do this.
