[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:
-
He had been positioning a stand between the ripper and the tandem without being locked on.
-
He had entered the Grader's Footprint to adjust the Pin without warning Mr Arvidson, who was at that time operating the Grader.
-
After the Grader was shut down, he re-entered the Footprint again.
-
He knew that he should not have been inside the Footprint of a live machine.
-
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:
-
he did not lock on when he and Mr Arvidson started working on the Grader;
-
Mr Fox had spoken to him about not being locked on;
-
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]
