Fair Work Act 2009

s.394 - Unfair dismissal

Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore

Application for an unfair dismissal remedy - no valid reason - dismissal harsh, unjust and unreasonable - reinstatement appropriate.

[1] On 17 January 2017, Mr Michael Ballam (Mr Ballam) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore (Rio Tinto).

[2] At the time of his dismissal, Mr Ballam was employed as a FIFO mechanic by Rio Tinto at their Marandoo site. Mr Ballam and another Rio Tinto mechanic were tasked to jack a grader (Grader) so that employees of Rio Tinto subcontractor, Otraco, could remove the machine's tyres. Mr Ballam was dismissed following an investigation into allegations that he committed various safety breaches whilst undertaking this task. (Incident).

[3] On 23 January 2017, Rio Tinto lodged a Form F3 Employer Response to the Application noting it had no jurisdictional objections to the Application.

[4] The parties participated in conciliation on 21 February 2017 and on 30 March 2017. The matter could not be resolved through conciliation and was listed for hearing (Hearing). Taking into account the parties circumstances, and their wishes, it was determined that a hearing, rather than a determinative conference, would be the most effective and efficient way to determine the matter.

[5] Directions were issued to ensure the efficient conduct of the Hearing (Directions). Those Directions required Mr Ballam and Rio Tinto to file and serve an outline of submissions, witness statements for any witnesses they proposed to call, copies of any documents upon which they sought to rely as evidence, and copies of any authorities upon which they proposed to rely at the Hearing.

[6] On 14 April and 20 April 2017, respectively, Rio Tinto and Mr Ballam sought permission to be represented at the Hearing.

[7] Section 596 of the FW Act provides as follows:

"596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[8] In Warrell v the Commission [2013] FCA 291 at [24], the Federal Court held that:

"A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission"."

[9] Taking into account the submissions of both parties and in the absence of any objections from either party opposing representation for the other, leave to appear was granted to both parties pursuant to section 596(2)(a) and (c) of the FW Act.

[10] At the Hearing, Mr Ballam gave evidence on his own behalf in support of his Application. Ms Mayana Aspinall (Ms Aspinall), Mr Ballam's partner, also gave evidence on behalf of Mr Ballam. Ms Aspinall was Mr Ballam's support person during the disciplinary proceedings leading up to the termination of his employment.

[11] The following witnesses gave evidence on behalf of Rio Tinto:

• Mr Joel Arvidson (Mr Arvidson), the other Rio Tinto mechanic tasked to jack the Grader;

• Mr James Simpson (Mr Simpson), Mr Ballam's Superintendent;

• Mr Simon Mallard (Mr Mallard), Maintenance Manager for Tom Price and Marandoo;

• Ms Kylie Butson (Ms Butson), a Human Resources Advisor at the Marandoo site; and

• Mr Damon Fox (Mr Fox), an Otraco employee who assisted Mr Arvidson and Mr Ballam to perform the task allocated to them.

[12] Following the conclusion of the Hearing, final written submissions were filed on behalf of Mr Ballam on 21 July 2017, and on behalf of Rio Tinto on 11 August 2017.

[13] Mr Ballam commenced employment with Rio Tinto as a Maintainer on 12 April 2016. He is currently 54 years old[1]

[14] As a condition of his employment, Mr Ballam was required to comply with the Iron Ore (WA) Isolation Regulations (Regulations) and the Life Saving Commitments (Commitments). Following a workplace fatality in mid-2016, Rio Tinto revised the Regulations and Commitments.[2] According to his notice of termination, Mr Ballam was dismissed by Rio Tinto on the grounds that he breached the revised Regulations and Life Saving Commitment 7 on three separate occasions on 1 December 2016 by placing himself in the footprint of the Grader.[3] The footprint refers to the area within the shadow cast by the Grader when the sun is directly overhead (Footprint).

[15] On 1 December 2016, Mr Ballam was working a day shift commencing at 6:00 am. For the majority of the day he had been engaged in working on a D11 Bulldozer diagnosing faults with the grease system.[4]

[16] At some time after 4:00 pm, Mr Ballam and Mr Arvidson were given the task of putting the Grader onto the apron in Bay 4 of the workshop, jacking it up and putting stands under it so that the tyres at Position 3 and 5 at the left-hand rear of the Grader could be removed by Otraco employees before the shift concluded at 6:00 pm.[5]

[17] Mr Ballam and Mr Arvidson commenced positioning the Grader on the apron. Mr Arvidson operated the machine whilst Mr Ballam gave directions using hand signals according to normal spotting protocols.[6] No Job Hazard Analysis (JHA) was completed before Mr Ballam and Mr Arvidson commenced the task.[7] Mr Arvidson completed a 'Take 5'. Mr Ballam did not.[8]

[18] Mr Ballam and Mr Arvidson positioned the Grader on the apron with the rippers of the vehicle protruding over the edge of the concrete apron. Mr Ballam used a forklift to fetch two stands to place under the back of the Grader in order to stabilise the Grader while the wheels were removed by Otraco employees.[9]

[19] Mr Ballam says that Mr Arvidson began lowering the rippers to the ground, thereby pushing the rear body of the Grader off the ground. Mr Ballam says he gave Mr Arvidson a signal to stop and he received a clear response from Mr Arvidson showing him his hands open, indicating his hands were off the controls of the Grader. Mr Ballam says that he then began to push the rear right hand stand under the Grader with his hands and feet.[10]

[20] Mr Fox arrived at Bay 5 between 4.00 pm and 4.30 pm. Mr Ballam says that, when Mr Fox arrived, Mr Arvidson was in the cab on the Grader. Mr Arvidson says that he was not in the cab and was instead standing near Mr Ballam. Mr Arvidson's evidence is consistent with the evidence of Mr Fox. Mr Fox says that, when he arrived, he observed Mr Ballam in the Grader's Footprint under the ripper near tyre Position 6, positioning a stand under the rear of the Grader while Mr Arvidson stood nearby (First Alleged Isolation Breach)[11].

[21] Mr Fox proceeded to the isolation point near the tyre at Position 3 to attach his personal isolation lock, and discovered that the isolation switch was off but that neither Mr Ballam's nor Mr Arvidson's personal locks were attached. Mr Fox told Mr Ballam that the Grader must be isolated before Mr Ballam positioned the stands under the Grader.[12]

[22] Mr Arvidson retrieved his personal lock from the piece of equipment he had been working on before he was tasked to place the Grader on stands. Mr Arvidson, Mr Ballam and Mr Fox then placed their personal isolation tags on the Grader.[13] Mr Arvidson and Mr Ballam then went under the Grader to position the remaining stands.[14]

[23] Mr Fox decided that two additional stands needed to be positioned under the Grader and that an articulation lock pin (Pin) needed to be put in place.[15] The Pin is stored on the chassis of the Grader near tyre Position 4. The articulation lock (Lock) consists of two metal brackets attached to the back and front frames of the Grader. When the Grader is centrally aligned, the Pin can be placed through holes in each of the three pieces of metal which make up the brackets. If the Grader is not centrally aligned, the Pin will drop through the first hole but not the second or third. The Pin is used to join the brackets and prevent any sideward movement of the Grader.[16]

[24] Mr Ballam says that he did not believe it was necessary to isolate the Grader before placing the stands underneath it, put the Pin in place, or use the two additional stands that Mr Fox insisted upon.[17]

[25] Mr Fox removed the Pin from its storage position and put it in the Lock. However, the Pin only passed through the first hole, meaning that the Grader was not centrally aligned.[18]

[26] Mr Fox went to the isolation point to de-isolate the Grader, and Mr Arvidson climbed into the cab to operate the Grader's controls to align the Grader so the Pin would pass through all three holes. Both Mr Fox, who was standing behind Mr Ballam, and Mr Ballam began giving Mr Arvidson differing hand signals to direct him to align the vehicle so that the Pin would fall through holes two and three. Mr Arvidson chose to follow Mr Fox's instructions. The Pin then dropped through the second hole.[19]

[27] Mr Ballam says that he observed that the Pin had not passed through the third hole so he looked up at Mr Arvidson in the cab and indicated to him to stop. Mr Ballam says that Mr Arvidson opened his hands indicating that his hands were off the controls of the Grader and Mr Ballam reached forwards between tyre Position 4 and the body of the Grader to adjust the Pin (Second Alleged Isolation Breach). Mr Fox and Mr Arvidson say that Mr Fox took his hands off the controls only after Mr Arvidson saw Mr Ballam step inside the Grader's Footprint. It is agreed by the witnesses that Mr Ballam was in the Grader's Footprint for a matter of seconds.[20] In his Incident Report prepared on the same day, Mr Ballam admitted that he had stepped inside the Footprint of the Grader and that this was a "lapse in thought judgement" for which he was "sorry".[21]

[28] Mr Fox says that he warned Mr Ballam to get out of the area. Mr Ballam denies this. Mr Arvidson says that he heard the comment but this seems unlikely given the uncontested evidence that he was in cab of the Grader at the time and its engine was running.[22]

[29] Mr Ballam then began directing Mr Arvidson to steer the Grader to the right. However, he says that it was then he realised Mr Fox was standing behind him giving opposing directions so he stopped giving directions. Mr Ballam says that Mr Fox eventually realised he was giving the wrong directions, and directed Mr Arvidson to steer the Grader in the direction originally proposed by Mr Ballam.[23]

[30] In his witness statement, Mr Ballam says that he observed the Pin slide fully into position and he gave Mr Arvidson the signal to stop. He says that Mr Arvidson removed his hands from the controls of the Grader so Mr Ballam stepped forwards and secured the Pin (Third Alleged Isolation Breach).[24] Mr Arvidson says that he took his hands off the controls only after he saw Mr Ballam step inside the Grader's Footprint.[25] According to the notes made by Mr Simpson during his interview with Mr Fox the day following the incident, Mr Arvidson had shut down the Grader before Mr Ballam stepped into the Footprint to secure the Pin.[26] However, Ms Butson says that, during the investigation interview held on 8 December 2016, Mr Ballam stated that the Grader was still live when he stepped into the Footprint to secure the Pin.[27]

[31] Mr Arvidson says that, after securing the Pin, Mr Ballam stepped into the Grader's Footprint on two further occasions while the Grader was still live to position additional stands. According to Mr Arvidson, on at least one of these occasions, he heard Mr Fox admonish Mr Ballam for doing so. Mr Arvidson says that he also admonished Mr Ballam.[28] At the Hearing, both Mr Fox and Mr Ballam denied that any of these events occurred.[29] Given the inconsistencies in Mr Arvidson's evidence in a number of regards with that of both Mr Fox and Mr Ballam, I accept the evidence of Mr Fox and Mr Ballam.

[32] Mr Arvidson says he then turned the Grader off and attached the scissor clip, master lock and his personal lock. Unbeknownst to Mr Fox and Mr Ballam, Mr Arvidson then went in search of Mr David Nilson (Mr Nilson), his leading hand, and reported to him that Mr Ballam had gone into the Footprint of the Grader contrary to warnings by himself and Mr Fox.[30]

[33] Mr Ballam says that he and Mr Fox began discussing their disagreement about the necessity for additional stands. Mr Fox says they discussed his concerns that Mr Ballam had acted dangerously, although Mr Ballam denies this. Mr Fox and Mr Ballam eventually became aware that Mr Arvidson had disappeared.[31]

[34] Mr Fox went in search of Mr Arvidson and found him in the Supervisor's Office recanting to Mr Nilson what had occurred. Mr Fox added his own account. Mr Fox and Mr Arvidson then returned together to the Grader.[32]

[35] Mr Nilson subsequently followed Mr Fox and Mr Arvidson to the Grader. He took Mr Ballam aside and informed him that complaints had been made about his conduct. Mr Ballam apologised to both Mr Fox and Mr Arvidson and took no further part in the task.[33]

[36] Mr Fox queried whether the job should proceed and was told by Mr Nilson to complete the job with the assistance of Mr Arvidson. Mr Arvidson and Mr Fox completed positioning the stands under the Grader.[34]

[37] At 5.40 pm, Mr Ballam packed his tools away.[35]

[38] Mr Nilson returned to the office and reported to Mr Simpson that a potential isolation breach had occurred. Mr Simpson says that Mr Nilson took him to the Grader and "showed [him] the places that Michael Ballam had put himself".[36] I note that Mr Nilson had not witnessed Mr Ballam doing so, and his knowledge of the conduct was based solely on the oral allegations of Mr Arvidson and Mr Fox.

[39] When the task was completed, Mr Fox and Mr Arvidson were instructed to complete an incident report which they both did before returning to Camp. [37]

[40] Mr Simpson instructed Mr Ballam to complete an incident report and then undergo a drug and alcohol test. After he completed the testing, Mr Ballam returned to Camp.[38]

[41] Mr Simpson reported the incident to Mr Mallard, informing Mr Mallard that there appeared to have been a 'serious' isolation breach by Mr Ballam and that Mr Ballam's colleagues had expressed concern about working with him because of his approach to safety. According to Mr Mallard's witness statement, Mr Mallard had his own views about what should be done, but first allowed Mr Simpson to express his before asking Mr Simpson whether he was considering the possibility of termination. Mr Simpson indicated to Mr Mallard that he proposed to stand Mr Ballam down and conduct a safety investigation into the cause of the isolation breach, and a HR investigation to determine whether disciplinary action was appropriate. Mr Mallard endorsed this course of action[39]

[42] At 8.30 pm, Mr Simpson called Mr Ballam and advised him that he had been stood down until further notice. Mr Ballam remained in Camp until 4:00 pm the next day, when he was taken to the Site for an investigation interview.[40]

[43] Mr Simpson says that, at that investigation interview, Mr Ballam conceded:

1. He had been positioning a stand between the ripper and the tandem without being locked on.

2. He had entered the Grader's Footprint to adjust the Pin without warning Mr Arvidson, who was at that time operating the Grader.

3. After the Grader was shut down, he re-entered the Footprint again.

4. He knew that he should not have been inside the Footprint of a live machine.

5. He couldn't recall being trained or given a refresher course on isolation procedures, although he remembered the rollout of information about isolated work.

[44] Mr Ballam denies telling Mr Simpson that he did not warn Mr Arvidson before entering the Grader's Footprint to adjust the Pin. He also denies telling Mr Simpson that he re-entered the Grader's Footprint after the Grader was shut down or that he could not recall being trained or given a refresher course on isolation procedure.[41]

[45] After the investigation interview, Mr Ballam was flown off site.[42]

[46] On the same day, Mr Simpson also interviewed Mr Nilson. Mr Nilson was not called as a witness. However, Mr Simpson says that, when he interviewed him, Mr Nilson told him that Mr Arvidson had raised concerns with him about Mr Ballam not locking on when he should have done so, and entering the Grader's Footprint when it was live. Mr Simpson asserts that Mr Nilson told him that he had spoken to Mr Ballam about the concerns Mr Arvidson and Mr Fox had raised with him. Mr Ballam had purportedly replied with words the effect of "that's not very manly of them". [43] Mr Ballam denies saying this.[44]

[47] Mr Simpson asserts that Mr Nilson also told him that he had previously had cause to counsel Mr Ballam about failing to wear personal protective equipment. Mr Ballam says that he explained to Mr Nilson, at the time, that he required reading glasses and therefore was unable to safely operate with a face shield or safety glasses.[45] Mr Simpson says that Mr Nilson told him he had cautioned Mr Ballam in relation to another incident involving Mr Ballam standing under a track. According to Mr Nilson, Mr Ballam got aggressive and shouted at him. Mr Ballam denies shouting or getting angry with Mr Nilson, but admits the incident occurred.[46] Mr Ballam was not issued with any formal reprimands or disciplinary warnings in relation to either of these incidents.[47] Mr Nilson was not called as a witness and I was unable to assess Mr Nilson's credibility. Therefore, where Mr Nilson's evidence differs from Mr Ballam's, I have accepted Mr Ballam's evidence.[48]

[48] The same day, Mr Simpson also interviewed Mr Fox and Mr Arvidson. Mr Simpson's recollection of the information provided by them during the investigation interviews is similar to the evidence they gave in their witness statements.[49]

[49] Mr Fox also participated in a 're-enactment' of the incident.[50]

[50] On 5 December 2016, a HR Investigation was initiated after Mr Simpson provided Ms Butson with a bundle of documents, including the Incident Statement Forms from Mr Fox, Mr Arvidson and Mr Ballam. The documents also included Mr Ballam's Fatigue Accident Causation Tool, the 'Take 5's prepared by Mr Fox and Mr Arvidson, the Otraco Best Practice Procedure, Mr Ballam's stand down letter and his training records.[51]

[51] On 8 December 2016, Ms Butson and Mr Simpson met with Mr Ballam. Mr Ballam declined the opportunity to have a support person with him. During the meeting, Mr Ballam admitted that:

1. he did not lock on when he and Mr Arvidson started working on the Grader;

2. Mr Fox had spoken to him about not being locked on;

3. he was aware that he was not supposed to be in the Footprint of a live machine; and

d. he had entered the Footprint of the Grader to position the Pin.[52]

[52] On 8, 13 and 19 December 2016, Mr Ballam forwarded emails to Mr Simpson and Ms Butson to consider in the course of the HR Investigation.[53]

[53] On 21 December 2016, Ms Butson and Mr Simpson met with Mr Ballam and his support person, Ms Aspinall. Mr Simpson informed Mr Ballam he had concluded that, despite being aware of the isolation procedures, Mr Ballam had breached the Isolation Regulations and Life Saving Commitment 7 by stepping into the Footprint on three separate occasions. He advised Mr Ballam that Rio Tinto were considering terminating his employment. Mr Simpson invited Mr Ballam to advise Rio Tinto of any mitigating circumstances or reasons why Rio Tinto should consider alternative disciplinary action. Mr Simpson says that, at this point, Mr Ballam changed his approach and began to deny that the breaches had occurred at all and produced a number of diagrams and photographs to illustrate that he had done nothing wrong.[54]

[54] Ms Aspinall says that Ms Butson and Mr Simpson insisted that Mr Ballam admit that he had breached the isolation policy on three occasions. She says the impression she was given was that, if he did so, he would not be dismissed.[55]

[55] On 22 December 2016, Mr Ballam requested he be given until 4 January 2017 to seek legal advice and provide a response to Rio Tinto. An extension was granted only until 9:00 am on 23 December 2016. On 23 December 2016, Mr Simpson advised Mr Ballam that, in the absence of any further information, Rio Tinto intended to finalise its decision.

[56] Mr Simpson subsequently recommended to Mr Mallard that Mr Ballam's employment be terminated.[56]

[57] On 28 December 2016, Ms Butson and Mr Simpson met with Mr Ballam. They advised him that his employment had been terminated effectively immediately, and provided him with a letter of termination.[57]

[58] Mr Ballam maintains that he was unfairly dismissed and seeks an order that he be reinstated and compensated the lost remuneration between the date of his dismissal and his reinstatement.

[59] Section 396 of the FW Act requires that the FWC to decide four preliminary issues before considering the merits of an application for unfair dismissal:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

[60] I am satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act. I am also satisfied that the Small Business Fair Dismissal Code, which applies to employers of fewer than 15 employees, does not apply to Mr Ballam's dismissal. There is no assertion that Mr Ballam's dismissal involved redundancy.

[61] Section 382 sets out the circumstances that must exist for Mr Ballam to be protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

[62] There is no dispute, and I am satisfied, the Mr Ballam has completed the minimum employment period, and is covered by the Mining Industry Award 2010. Consequently, I am satisfied Mr Ballam was protected from unfair dismissal.[58]

[63] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

[64] It is not contested, and I am satisfied, that Mr Ballam was dismissed for the purposes of section 385(a) of the FW Act and that his dismissal was not a case of genuine redundancy, nor subject to the Small Business Fair Dismissal Code.

Was Mr Ballam's dismissal harsh, unjust or unreasonable?

[65] Having been satisfied of each of subsections 385(a),(c) and (d) of the FW Act, it is necessary to determine whether Mr Ballam's dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether a dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(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

(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

(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

(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

(h) any other matters that the FWC considers relevant."

[66] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

".... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

[67] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.[59] The reasons should be 'sound, defensible and well founded'[60] and should not be 'capricious, fanciful, spiteful or prejudiced.'[61] The reason must be valid in the context of the employee's capacity or conduct, or based upon the operational requirements of the employer's business. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.[62]

[68] Rio Tinto allege that, despite being aware of the revised Regulations and Commitments, Mr Ballam breached the Regulations and Life Saving Commitment 7 on multiple occasions on 1 December 2016 by placing himself in the Footprint of the Grader when the Grader was not isolated. Rio Tinto asserts that this formed a valid reason for dismissing Mr Ballam, and maintain that his dismissal was not, in the circumstances, harsh, unjust or unreasonable.[63] I note that, in the notice of termination, Rio Tinto assert that Mr Ballam breached the Regulations and Commitments three times. In its Closing Submissions, however, Rio Tinto conceded that Mr Ballam may have only breached the Regulations and Commitments twice.

[69] According to the evidence of Mr Simpson, the revised Regulations, Commitments and safety procedures required that:

"(a) no-one was to work on a live machine unless:

(ii) no-one was in the machine's footprint while the work was being done; or

(iii) if the task required the machine to be running AND the work was covered by a JHA that had been signed-off by the Registered Manager; and

(b) no-one should be in the footprint of a live machine."[64]

[70] Given Mr Ballam's evidence that he positioned the stands with his hands and feet, and the evidence of Mr Fox that Mr Ballam was within the Footprint of the Grader when he arrived at the worksite, I am satisfied that Mr Ballam's hands and/or feet encroached into the Footprint of the Grader when positioning the stands. I accept the evidence of Mr Fox that the Grader's isolation switch was off at the time and the Grader was not live.[65]

[71] Mr Ballam conceded during the course of the investigation and at the Hearing that, at the very least, his limbs encroached into the Footprint of the Grader to adjust the Pin and then to secure the Pin.[66] Mr Simpson's notes of his interview with Mr Fox the day after the incident indicate that the Grader was not live when Mr Ballam encroached into the Footprint to secure the Pin. Mr Simpson also confirmed at the Hearing that it was his understanding that the Grader was shut down when Mr Ballam entered the Footprint to secure the Pin.[67]

[72] Mr Arvidson claims that, after securing the Pin, Mr Ballam stepped into the Grader's Footprint on two further occasions while the Grader was still live to position additional stands. At the Hearing, both Mr Fox and Mr Ballam denied that this occurred.[68] Given the inconsistencies in Mr Arvidson's evidence in a number of regards with that of both Mr Fox and Mr Ballam, I accept the evidence of Mr Fox and Mr Ballam.

[73] The Closing Submissions filed on behalf of Rio Tinto identify the valid reason for Mr Ballam's dismissal as "... namely his repeated and deliberate disregard for the Rules." On the evidence before me, I am not satisfied that Mr Ballam repeatedly or deliberately disregarded the Rules.

[74] On the evidence before me, I am satisfied that Mr Ballam encroached into the Footprint of the Grader while the Grader was live when he adjusted the Pin. I am not satisfied that the Grader was live when Mr Ballam encroached into the Footprint of the Grader to secure the Pin or when he positioned the stands.

[75] In Mr Ballam's defence it is asserted that:

1. He was allocated the task late in the day and was under pressure to complete it quickly.

2. He did not fully understand the relevant procedures.

3. There was no JHA prepared for the task and he was not warned by Mr Fox or Mr Arvidson not to encroach into the Footprint.

d. Stepping into the 'footprint' of machinery is a common and accepted practice.[69]

1. His incursions into the Footprint, if they occurred, were short in duration, limited in extent and did not create a risk of harm.

2. He was disliked by the crew to which he had been allocated, and Mr Arvidson unnecessarily and maliciously reported him.

3. The safety investigation into the incident recommended retraining rather than dismissal.

4. The decision maker relied on photographs of a recreation which the witness evidence suggests was inaccurate.

[76] It is also submitted on Mr Ballam's behalf that:

1. He participated honestly and openly in the investigation.

2. Having regard to his work history of no formal prior warnings, the breach appears to have been isolated and not recurring in nature.

3. He made a full and frank admission at the earliest opportunity.

4. Other employees involved in isolation breaches have been dealt with less harshly.

[77] In the above circumstances, it is submitted that there was not a valid reason for Mr Ballam's dismissal and that his dismissal was a harsh, unjust and unreasonable outcome.

[78] At the hearing, Mr Ballam conceded that he was aware that the Regulations and Commitments had been revised as a consequence of a fatality. He acknowledged that a key change was a rule that employees were not permitted to work on live machines or be in their footprint unless:

1. they were working in the cab and no one else was in the footprint; or

2. a JHA had been created and that JHA had been signed off by a registered manager.

[79] Mr Ballam conceded that he and Mr Mallard had a discussion about these changes to the Regulations and Commitments, and that he had recently redone his isolation training at the time of the Incident.[70]

[80] In his defence, Mr Ballam points out that there was no JHA prepared for the task. He asserts that he was not warned by Mr Fox or Mr Arvidson not to encroach into the Footprint. Occupational Health and Safety legislation imposes on employees an obligation to ensure their own safety. The evidence suggests that both Mr Fox and Mr Arvidson did, in fact, warn Mr Ballam that his conduct was unsafe. In any event, an assertion that other employees, especially those who are younger and less experienced, did not remind him of safety rules or insist on safety processes which he concedes he was aware, is not sufficient for Mr Ballam to discharge his duty to ensure his own safety. Mr Simpson gave evidence that a JHA should have been prepared for the task and that Mr Arvidson and Mr Ballam were equally at fault for failing to ensure that a JHA was prepared.[71] The JHA would have clarified how the task should have been safely performed and should have prevented any breach of the Regulations and Commitments occurring. Mr Arvidson and Mr Ballam's supervisor also bears some responsibility in failing to ensure that a JHA was prepared and implemented. There is no evidence that disciplinary consequences were imposed on Mr Arvidson in relation to his failure to prepare a JHA or on their supervisor for ensuring that this occurred.

[81] Mr Ballam asserted during the 8 December 2016 investigation meeting, and at the Hearing, that going into the footprint of machinery while the machinery was not isolated was normal practice in the workshop. Standard Work Procedures (SWPs) were produced at the Hearing entitled Spotting Equipment into and out of the Workshop[72] and Servicing 16M Graders.[73] Both these SWPs refer to the 'chocking' of tyres. Neither expressly note the isolation of the relevant machine before the chocking is undertaken. Mr Ballam's evidence was that chocking required an employee to encroach into the footprint in order the place the chocks.[74] Under cross-examination, Mr Mallard conceded that may be necessary to reach into the footprint of a machine to place wheel chocks in accordance with the SWPs.[75]

[82] According to Mr Ballam, his incursions into the Footprint were short in duration, limited in extent and did not create a risk of harm. He says that Rio Tinto's failure to include him in the re-enactment of the Incident, which took place the day after the Incident, resulted in the decision maker having an inaccurate view about the extent to which he encroached into the Footprint of the Grader. No explanation was provided as to why Mr Ballam was not included in the Rio Tinto re-enactment along with Mr Fox. It is particularly surprising that Mr Ballam was not included given that his participation had potential benefits, in terms of ensuring he was afforded procedural fairness and the accuracy of incident investigation.

[83] Mr Ballam's assertion that the incident did not warrant the severity of the disciplinary action imposed on him is arguably consistent with the outcome of the safety investigation which recommended retraining, not dismissal.

[84] Under cross-examination, Mr Mallard, the decision maker who determined that the appropriate sanction for Mr Ballam was dismissal, conceded that he based his decision to dismiss Mr Ballam on the outcome of the HR Investigation, ignoring the recommendations of the Safety Investigation. Mr Mallard confirmed that findings of the HR Investigation were based on Rio Tinto's photographs of the re-enactment of the Incident. The photographs of Rio Tinto's re-enactment of the Incident suggest that Mr Ballam was well within the Footprint of the Grader. This is in contrast to the photographs of Mr Ballam's re-enactment of the Incident, which suggest a far more limited encroachment into the Footprint[76]. Mr Fox gave evidence that Mr Ballam did not encroach as far into the Footprint as the Rio Tinto re-enactment suggested, and that Mr Ballam's re-enactment of the Incident was the more accurate version.[77] It appears, therefore, that Mr Mallard's decision as to the appropriate disciplinary sanction in the circumstances was based on an inaccurate understanding of the severity of the Incident.

[85] It was put to Mr Mallard that his written evidence appeared to suggest an element of prejudgement of the severity of Mr Ballam's conduct. In his Witness Statement, Mr Mallard states that:

"I discussed the report with Jamie [Mr Simpson] and, while I already had my own views about what should be done, I encouraged him to tell me what he thought we should do. I asked him whether he was considering the possibility of termination, and he told me that he was."[78]

[86] Under cross-examination, Mr Mallard denied that he prejudged Mr Ballam, saying that he was merely expressing the view that "... this was a serious enough breach that could warrant termination, if the investigation found - depending on what the investigation found, it was potentially a serious enough breach that it could go in that direction."[79]

[87] Mr Mallard's discussion with Mr Simpson, referred to in Mr Mallard's Witness Statement, occurred after Mr Fox and Mr Arvidson verbally reported the Incident, but before Mr Ballam was interviewed and before either the Safety or HR Investigations commenced. Arguably, these comments suggest a preconceived view of the severity of the Incident, and also conveyed to Mr Simpson an expectation that dismissal should, and would, be the appropriate disciplinary sanction for him to recommend. Mr Simpson conceded under cross-examination that he was aware that Mr Mallard was of the view dismissal was the appropriate outcome. [80]

[88] Mr Mallard and Mr Simpson conceded that Mr Ballam had no prior writing warnings[81] and that a variety of other disciplinary measures other than dismissal were available.[82] Mr Mallard sought to bring Mr Ballam's safety record into doubt with evidence of prior encounters with Mr Ballam in connection with safety related matters. However, under cross-examination, Mr Mallard conceded that none of the interactions he referred to resulted in Mr Ballam being issued with any form of disciplinary warning. Mr Mallard, Ms Butson and Mr Simpson all conceded that other employees had committed isolation breaches, including some more severe, and retained their employment.[83] It would appear therefore that a breach of isolation procedures of itself is not consistently treated by Rio Tinto as a valid reason for dismissal.

[89] In fact, Mr Ballam asserted that the Incident was of such an uncontroversial nature that it would not, in the normal course of events, have been reported but for the fact that Mr Arvidson did not like Mr Ballam, and was concerned that his failure to attach his isolation tag might result in him being subjected to disciplinary action. Based on my observations of Mr Arvidson and the inconsistencies in his evidence as compared to Mr Ballam and Mr Fox, I am satisfied that Mr Arvidson embellished his recollection of the Incident to paint Mr Ballam in a more unfavourable light. This no doubt contributed to the seriousness attached to the Incident by Mr Mallard, particularly given Mr Mallard's admission that he was unaware of any personal animosity between Mr Arvidson and Mr Ballam which might have caused Mr Mallard to treat Mr Arvidson's evidence with caution.

[90] Mr Ballam participated fully in the investigation, he showed remorse for his conduct by apologising immediately to his colleagues, he admitted breaching the isolation procedures at the first opportunity in the subsequent investigations, and was forthcoming in conceding he had undergone relevant training. Not surprisingly, he sought to minimise the extent of the breaches of the isolation procedures late in the investigation process when it became apparent that his dismissal was imminent. Given the increasing autonomy of workers, it is critical to safety systems that employees are not discouraged from admitting safety failures and that employees willingly and fully participate in safety investigations. The importance of this was recognised in the outcome of the Safety Investigation, which recommended retraining rather than dismissal.

[91] In light of the above, I am not satisfied the Rio Tinto had a valid reason for dismissing Mr Ballam pursuant to section 387(a) of the FW Act.

[92] I am satisfied, and it is not contested, that Rio Tinto discharged its obligations under section 387(b) of the FW Act to notify Mr Ballam of the reason for his dismissal, and that he was not unreasonably refused a support person contrary to section 387(d). I am satisfied, and it is not contested, that Rio Tinto had not failed to raise performance concerns with him contrary to section 387(e) of the FW Act.

[93] It is conceded on behalf of Rio Tinto that Rio Tinto is a large, well-resourced, employer with access to highly skilled human resource and employment law advice. This should have ensured that Mr Ballam was fully afforded procedural fairness. Notwithstanding these resources, Rio Tinto denied Mr Ballam's request for a modest extension of time to seek legal advice during the Christmas and New Year public holiday period. In these circumstances, I am not satisfied that Rio Tinto give Mr Ballam a proper opportunity to respond to the reasons for dismissal as required by section 387(c) of the FW Act.

[94] As noted above, I am not satisfied that Rio Tinto had a valid reason for dismissing Mr Ballam. Notwithstanding Mr Ballam's relatively short period of employment, even if Rio Tinto did have a valid reason to dismiss Mr Ballam, I am satisfied that, in light of the findings above, his dismissal was in all the circumstances harsh, unjust and unreasonable.

[95] Based on the evidence above, I am satisfied that Mr Ballam's dismissal was unjust because he was not responsible for all of the instances of misconduct on which the employer acted. I am of the view that his dismissal was unreasonable because the decision to dismiss him was based on inaccurate information. I am satisfied that, given Mr Ballam's age, employment record, and employment prospects, his dismissal was harsh in its consequences for his personal and economic situation. I am also satisfied that his dismissal was disproportionate to the gravity of the misconduct.

[96] Accordingly, I find the Mr Ballam's dismissal was unfair.

[97] Mr Ballam seeks an order that he be reinstated and compensated the lost remuneration between the date of his dismissal and his reinstatement.

[98] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

[99] I am satisfied that Mr Ballam was protected from unfair dismissal pursuant to section 382 of the FW Act and was dismissed unfairly.

[100] Reinstatement is the FW Act's primary remedy for unfair dismissal and must be ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not appropriate. In DP World Sydney Limited v Lambley [2013] FWCFB 9230 at [138], the Full Bench of the FWC said:

"The language of s.390 makes the position pellucidly clear. The Commission "must" order reinstatement unless reinstatement of the person is inappropriate."

[101] No grounds were identified by Rio Tinto which would suggest that reinstatement of Mr Ballam was inappropriate. Subject to Mr Ballam undergoing training in accordance with the recommendations of the Safety Investigation, I am not satisfied that reinstatement is either inappropriate or impractical.

[102] In the circumstances, I am satisfied that I should order reinstatement.

[103] Section 391 of the FW Act provides:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."

[104] I will make an order requiring Mr Ballam to be reinstated into the position in which he was employed immediately before his dismissal on the condition that he undertake training in accordance with the recommendations of the Safety Investigation.

[105] Section 391(2) of the FW Act provides a discretion to the FWC to determine if it is appropriate for an order maintaining Mr Ballam's continuity of employment and continuous service with Rio Tinto. I consider it appropriate in the circumstances to make an order maintaining the continuity of the Mr Ballam's employment and continuous service with Rio Tinto.

[106] Section 391(3) of the FW Act provides the FWC with a discretion to determine if it is appropriate to make an order causing Rio Tinto to pay Mr Ballam an amount for the remuneration lost, or likely to be lost, by Mr Ballam because of the dismissal. Notwithstanding a finding that an employee has been unfairly dismissed, an order restoring lost remuneration may not be appropriate.[84] Compliance with safety rules, processes and procedures are critical to ensure employees and their colleagues go home fit and well to their families at the end of the working day or roster. Given Mr Ballam's failure to diligently comply with all relevant safety practices and procedures, I do not think it is appropriate to make an order restoring remuneration lost, or reasonably likely to be lost, by Mr Ballam because of the dismissal.

[107] I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that a remedy of reinstatement is appropriate.

[108] An order to this effect (PR598093) will be issued with this decision.

T Kucera of Turner Freeman Lawyers for the applicant.

S Heathcote of Steve Heathcote Barrister & Solicitor for the respondent.

[10] Exhibit A2 at [13] and Transcript PN214.

[11] Exhibit A2 at [14]; Exhibit R2 at [5]; Exhibit R4 at [5].

[12] Exhibit A2 at [14]; Exhibit R2 at [5].

[14] Exhibit R4 at [5]; Transcript at PN250 - PN253.

[16] Exhibit B1 at [3]; Exhibit R2 at [5].

[18] Exhibit A2 at [19]; Exhibit R2 at [5].

[20] Exhibit A2 at [20]; Exhibit R3 at Attachment JA1; Transcript PN1592.

[22] Exhibit R2 at [5]; Exhibit R4 at [5].

[31] Exhibit A2 at [24]; Exhibit R2 at [5].

[32] Exhibit A2 at [25]; Exhibit R2 at [5].

[33] Exhibit A2 at [26]-[27]; Transcript at PN575.

[34] Exhibit A2 at [28]; Exhibit R4 at [5].

[37] Exhibit R2 at [6]; Exhibit R4 at [6].

[50] Exhibit R2 at [5]; Exhibit R4 at [5].

[53] Exhibit R8 at [4]; Exhibit R9 at [3].

[59] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373, 377-378.

[60] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

[63] Exhibit R9 at Attachment KMB16; Rio Tinto Closing Submissions at [3].

[65] Transcript PN2109 -PN2110, PN3115. Mr Ballam gave evidence that he pushed the stands under the Grader with his arms and feet. Mr Fox and Mr Arvidson gave evidence that Mr Ballam encroached into the Footprint whilst doing so. While there were a number of discrepancies in Mr Arvidson's evidence, I found Mr Fox to be a consistent and credible witness. However, it is agreed that Mr Ballam's tag was not attached to the isolation point at the relevant time.

[66] Transcript at PN689, PN805, PN858, PN1123, PN1128, PN1135.

[70] Transcript at PN581, PN592, PN602, PN832.

[80] Transcript at PN2731-PN2734, PN3190.

[83] Transcript at PN3492, PN3184, PN876-PN891, PN1304, PN2755.

[84] Mt Arthur Coal t/a Mr Arthur Coal v Goodall [2016] FWCFB 5492 at [79].

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