Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - ss 387(a), (b), (c), and (e) weigh in favour of a finding that the dismissal was not unfair - Application dismissed.

[1] This decision is about Roy Hill Holdings Pty Ltd's decision to dismiss Mr Jeffray Fox for breaches of Roy Hill's safety procedures, and whether its decision was unfair.

[2] I conducted a hearing on Tuesday, 19 August 2025. Mr Fox represented himself and gave evidence in support of his case. Roy Hill called Mr Joseph Power, Mr Paul Robinson, and Mr Tony Halpin to give evidence and was represented by Mr David Garner, an employee of an associated entity of Roy Hill.

[3] Having considered the relevant evidence and submissions of the parties, I find that Mr Fox's dismissal was not unfair. My detailed reasons follow.

[4] Mr Jeffray Fox: Mr Fox initially commenced his employment on site in April 2023 through a labour hire provider, before being directly employed by Roy Hill on 12 December 2023 as a Maintainer Fitter in Roy Hill's Non-Process Infrastructure division.

[5] Mr Joseph Power: Mr Power is employed by Roy Hill as a Supervisor, NPI. Mr Fox reported to Mr Power.

• [6] Mr Tony Halpin_:_ Mr Halpin is employed as a Manager, NPI. Mr Halpin has worked for Roy Hill since 2014 and has 14 years' experience working in the mining industry, including as an electrician.[1] Mr Power reports to Mr Halpin, and Mr Halpin reports to Mr Robinson.

[7] Mr Paul Robinson: Mr Robinson is employed as the General Manager of NPI. As the General Manager, Mr Robinson is the final decision maker regarding any employee terminations in NPI.

[8] The witnesses largely did not disagree on the events as they occurred. Where the witnesses differed was on the significance of the events that led to Mr Fox's dismissal.

• [9] On 11 January 2025, Mr Fox was assigned to a job that involved work on an oil rack. It is not contested that Mr Fox did not perform a risk assessment before he started the job, such as filling out a Take 5 or Job Hazard Analysis. It is also not contested that during the job, Mr Fox did not properly isolate a valve.[2] This led to an oil spill. Mr Power was informed of the incident and attended the job site to inspect it and take photos of the area.

[10] On 12 January 2025, Mr Power submitted an incident report, which contained the following findings:

"The maintainer [Mr Fox] (working alone) has removed a passing ball valve (182-50-BSS-3199) on the waste oil system at the MSA workshop lube distribution rack 8 without any risk assessment (Take 5 or JHA) and without developing or putting in place an isolation. It appears that when the ball valve was removed, a workshop maintainer started using the waste oil system in the MSA workshop. This pressurised the system and caused waste oil to flow from the pipework. The maintainer has then closed the manual valve from the workshop. The pneumatic valves on the waste oil tank have stayed open and continued to gravity feed to the open pipework until the pneumatic valves were closed. During this time the NPI mech coordinator was phoned and informed.

NPI mech coordinator and 2 other maintainers attended the location to assist with controlling the loss of containment. All sources of waste oil were isolated and pipework returned to operation. Photos of area were taken. Maintainers and mech coordinator began cleaning up the area. The area where the loss of containment occurred is a bunded area for service truck operations. Investigation began the following morning after PSI".[3]

• [11] Roy Hill provided photographs of the oil spill. I agree with Mr Power's evidence that there was a large volume of oil spilled, and that this created a hazard.[4]

• [12] On 14 January 2025, Mr Fox and Mr Power met in person whilst Ms Cooper - Specialist Human Resources for Roy Hill - dialled in. Mr Fox was advised that he was being stood down on pay pending an investigation. Mr Fox admitted to Mr Power and Ms Cooper that he had decided to not fill out a JHA or undertake any isolation measures before undertaking the task on the oil rack.[5]

[13] Mr Fox was directed to attend a show cause meeting on 20 January 2025. On 20 January 2025, Mr Fox met with Mr Halpin and Ms Cooper. As a result of Mr Fox's responses during the show cause meeting, Mr Halpin and Mr Robinson decided to issue Mr Fox with a first and final written warning and place him on a Performance Improvement Plan rather than terminate his employment.

[14] The final written warning relevantly stated:

"Your actions on 11 January 2025 were unacceptable, and unsafe practices will not be tolerated. Considering the full circumstances of the case including your responses, this letter constitutes a First and/Final Written warning. Please note, a copy of this letter will be placed on your personnel file.

Further to this First and/Final Written Warning, you will also commence working under a Performance Improvement Plan (PIP). The PIP is designed to assist you in demonstrating a sustained improvement in your behaviour and performance and will focus on addressing the concerns outlined to you. It is a requirement of your role to comply with all Company Policies, Procedures, Standards and Work Instructions, and the PIP will provide you with the opportunity to demonstrate alignment to these as well as to our Code of Conduct and Company values.

As you are aware, we are working towards successful completion of the PIP, however, it is critical that you understand should you fail to address the concerns outlined or if further breaches occur, you may be subject to further disciplinary action up to and including the termination of your employment. Please note that a Final Written Warning will have a negative impact on your bonus payments for the 12 months following the issue of the warning. Should you have any questions regarding your responsibilities under your contract of employment, Roy Hill's expectations of its employees, or any other aspects of your role, please raise these with your Line Leader."[6]

[15] On 17 February 2025, Mr Fox met with Mr Power and the Acting NPI Superintendent to discuss the PIP. Mr Fox signed the PIP. The PIP contained the following words:

"This performance improvement plan (PIP) has been developed due to concerns surrounding your failure to demonstrate a commitment to controlling and managing all potential health and safety hazards in accordance with the Risk Management Standard.

Having failed to perform a risk assessment and isolation before commencing work all training related to risk assessments and isolation procedures is to be refreshed at the earliest available opportunity. This is to ensure your understanding of the Roy Hill expectations."[7]

(a) Conducting risk assessments: that it was expected that Mr Fox complete appropriate risk assessments such as a Take 5, JHA or Safe Work Method Statement.

(b) Positive isolation: that it was expected that Mr Fox follow all requirements and processes to safely isolate and manage damaging energies or substances on all plant and equipment.

• [17] Mr Fox met with Mr Power and Ms Cooper on 10 March 2025; 17 March 2025; and 7 April 2025 to review his performance and discuss the PIP. After each meeting, Mr Fox signed a Performance Plan Review to acknowledge he had read and understood the feedback.[8] Mr Fox did not contest the accuracy of the PIP notes.

• [18] At the meeting on 10 March 2025, the PIP notes record that Mr Fox had completed his refresher training on performing risk assessments and isolations. Further, that Mr Fox had provided daily evidence of risk assessments and isolations performed to his supervisor and had also discussed the jobs with his supervisor. At the meeting Mr Fox gave feedback that he was happy with the support provided.[9]

[19] At the meeting on 17 March 2025, the PIP notes show that Mr Fox had continued to provide completed isolation and risk assessment documents to his supervisor at the end of each shift. Further that there had been a check-in on Mr Fox while he was servicing generators on site. Mr Fox had correctly identified and controlled all hazards, with the JHA, Material Safety Data Sheet, and Work Instruction completed to a very good standard.[10]

• [20] At the meeting on 7 April 2025, the PIP notes provide that Mr Fox had continued to provide completed isolation and risk assessment documents to his supervisor at the end of each shift.[11]

[21] On 13 April 2025, Mr Fox was assigned to a task involving the replacement of a pump for a sprinkler system. Mr Power went to check-in on Mr Fox. Mr Fox had not yet started replacing the pump when Mr Power arrived, but he had started the job. It is not in contest that Mr Fox had correctly performed the required electrical isolations but had not isolated two mechanical valves that were involved in controlling the flow of water through the pump. Mr Fox also had not filled out or signed onto the JHA for the job.

• [22] Mr Power's evidence is that when he asked Mr Fox if he was aware that the isolation was incorrect, Mr Fox was evasive.[12]

[23] Mr Power told Mr Fox to stop working, remove his isolation locks and return to the NPI office. Mr Fox was subsequently stood down on pay while an investigation was conducted.

• [24] On 24 April 2025, Mr Fox provided a written response to the investigation regarding the second incident, which stated that:[13]

(a) He had not completed the pump replacement task before but had completed other similar tasks and considered himself competent to undertake the task.

(b) He had not started the pump replacement at the time Mr Power turned up.

(c) There was no job description document or isolation matrix. Mr Fox was working through the job setup isolation when Mr Power arrived.

(d) Mr Fox had spoken with the plumber assigned to the job and the plumber disagreed with Mr Power's views regarding the importance of the mechanical isolations.

(e) He denied that there had been an incident and that, "the thing I am accused of not doing I may well have done prior to starting work!".

(f) There was no stored energy in the pump. Isolations are required where there is stored energy or potential stored energy.

(g) Mr Power should have discussed the issue with him before commencing an investigation.

[25] Mr Fox's response also detailed his resentment at having to spend a week in isolation refresher training after the first incident as he thought it would only be a few hours; and his grievance that the first incident had impacted on his bonuses. Mr Fox stated that he had agreed to refresher isolation training, the PIP, and the first and final written warning, but that he had not agreed to any financial penalty. Further, that he wanted the bonuses paid out or he would seek a review of the investigation into the first incident.

[26] Mr Fox's written response further listed his grievances with Mr Power and his views on how Mr Power had a vendetta against him. Mr Fox also requested that, "...this investigation be stopped without delay, and then that this investigation be re-opened as a harassment investigation to review Joe's treatment of me. Two failed investigations initiated by Joe against me are significantly stressful events that cannot be ignored".[14]

[27] On 1 May 2025, Mr Fox attended a meeting with Mr Halpin and Ms Cooper to further discuss the second incident.

[28] On 13 May 2025, Mr Halpin sent Mr Fox a letter inviting him to attend a show cause meeting on 15 May 2025. The letter stated:

"This conversation is an opportunity for you to provide any final considerations as to why your employment with Roy Hill should not be terminated following the incident on 15 April 2025, whereby whilst you were performing a pump change out in the WWTP at the Village, a CCV was conducted, and it was identified that all sources of stored energy had not been isolated correctly. On inspection the power source had been isolated to the pump, but the fluid flow had not, and the valves did not have the correct lock isolation installed."[15]

• [29] On 15 May 2025 at 7:19am, Mr Fox emailed Ms Cooper protesting the show cause meeting and the investigation process. Mr Fox raised that he had been stood down for four weeks and that he had not received any response to his email of 24 April 2025, nor had Roy Hill responded to his request for an investigation into the harassment from Mr Power.[16]

[30] The meeting was rescheduled as Roy Hill had sent the letter for the show cause meeting to Mr Fox's work email, rather than his personal one.

• [31] On 15 May 2025 at 8:37pm, Mr Fox sent another email to Ms Cooper that in summary stated:[17]

(a) He disagreed that there had been an isolation breach.

(b) There was ample evidence to commence an investigation into Mr Power's harassment of him and that Mr Power's harassment was intertwined in the isolation breach investigation.

(c) He did not feel that he had been provided with sufficient information in advance to prepare for the show cause meeting.

[32] On 16 May 2025, Mr Halpin replied to Mr Fox. Mr Halpin's email stated that he wanted to meet Mr Fox in person to discuss two processes as follows:

"The first process which is requiring a resolution is the substantiated Isolation Breach dated 13 April 2025, we took time to investigate this allegation to understand the true nature of what has occurred. The insights I can share with you are as follows:

• - The Simple Isolation Statement dated 13 April 2025 did not include the two missing isolations required by you. Based on this, we are not satisfied that you had sufficient intent to lock on to the two missing isolations.

• o This accompanied with your previous isolation breach has led to the decision to proceed to the Show Cause for Termination meeting as there is an overall loss of confidence in your ability to perform high risk tasks and ensuring correct isolations are in place."[18]

[33] With regards to the second process - being Mr Fox's request for an investigation into Mr Power - Mr Halpin asked Mr Fox for further information about why he felt Mr Power had "excessively focused" on him and for details about complained conversations and incidents.

[34] On 18 May 2025, Mr Fox replied to Mr Halpin's email. With regards to the finding that the second isolation breach had been substantiated, Mr Fox stated:

"This "insight" contains no information to me because it has a [sic] unproven premise - that there were two missing isolations. An investigation based on an unproven premise is pointless. I gave multiple reasons why these two Premises/isolations were not needed, the primary issue and the request I made was asking why would I be required to make those two isolations? I say these two isolations are not required to be done by me and hence this investigation falls flat. I also say that under the current circumstances of our team undertaking a lightspeed increase in safety addressment (which everyone blames/knows is due to me and my last isolation breach investigation) there really was every chance I would have isolated those two extra taps just for the sake of it."[19]

[35] Mr Fox's email of 18 May 2025 went on to raise issues with Mr Halpin's statement that Roy Hill had lost confidence in his ability; the investigation into the second incident; Mr Power's treatment of him; and accused Mr Halpin, Mr Power and another employee of having potential conflicts of interest as they all share Irish heritage.

[36] Mr Fox reiterated that there had been no isolation breach as the plumber had been responsible for the sewerage pipe isolations; the pipe had been an open-ended pipe that could not hold pressure with no residual liquid; and the plumber had told Mr Fox that no isolation was required.

"2. This email will be the sixth time I have written to Roy Hill inside of Isolation breach investigations. I think that anyone who reads these 6 writings will see that my department under Joe Power has experienced a massive change in safety standards. Since my first investigation my crew has been asked to focus on JHA's like never before...that is partly because a JHA was a very rarely used document in our department leading up to January of this year. I would not like to give a number of how few JHA's I have written on many swings working under Joe Power. Even if you have been successful in finding that, the isolations are required; AND that I would have started work without the extra two isolations, you must address the fact that Joe's team needs significant leniency as it transitions from a low standard of safety. I say that I will be able to show that any termination was unreasonable; given the substandard safety culture in our crew as recently as January this year."[20]

• [38] On 19 May 2025, Mr Halpin replied to Mr Fox. Mr Halpin's email stated that the show cause meeting would be rescheduled for 20 May 2025 and that Mr Fox was welcome to bring a support person. Mr Halpin further stated that, "I want to share clarification regarding the advice received by the Plumber, we note that tradespeople will counsel each other from time to time on queries regarding a job however you were still responsible for the final two isolations to be isolated."[21]

[39] On 20 May 2025 at 1:06pm, Mr Fox replied to Mr Halpin. In his reply email, Mr Fox agreed that it defaults to the mechanical tradesperson to perform isolations where they are required, but in his view, there was no isolation required. Mr Fox's email also contained the following:

Because you have not dismantled my submissions and shown the isolation was required you cannot terminate my employment today. To my knowledge you have effectively ignored (which means you agree with) my claims of harassment by Joe which is a relevant factor. You have had my submission for basically four weeks now and todays [sic] termination meeting will be its third scheduled event. I should not be having to write such letters at this short amount of notice.

How much longer will you attempt to terminate my employment without addressing the relevant matters? If todays [sic] meeting brings in new information I will need time to digest it and several days at least to respond.

PS regarding your request for me to complete questions/paperwork for what you call the separate issue of harassment. I say that harassment and safety were both covered in my extensive submissions and cannot be separated from the isolation investigation. Your request to create two investigstions [sic] coincidentally enough causes the safety issues to be ignored."[22]

[40] On 20 May 2025, Mr Fox attended the show cause meeting via phone with Mr Halpin and Ms Cooper.

• [41] At 4:32pm, Mr Halpin advised Mr Fox via email and letter that his employment had been terminated on the basis he had not isolated the fluid flow or isolated the valves on the pump change out. Further, that Roy Hill had considered the final written warning issued on 11 February 2025 and his PIP.[23]

a) Mr Fox was protected from unfair dismissal pursuant to s 382 of the Fair Work Act 2009(Cth);

b) Mr Fox's application was made within the time prescribed in s 394(2) of the Act;

1. Roy Hill was not a small-business employer within the meaning of the Act; and

d) The dismissal was not a case of genuine redundancy.

[43] In assessing whether a dismissal was harsh, unjust, or unreasonable, I must consider the factors set out in s 387 of the Act. I set out my consideration below.

4.1 Section 387(a) - was there a valid reason for the dismissal related to Mr Fox's capacity or conduct?

• [44] A valid reason is one that is "sound, defensible or well-founded"[24] and should not be "capricious, fanciful, spiteful or prejudiced".[25]

• [45] Where the reason for dismissal relates to conduct, the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal actually occurred is to be determined based on the evidence,[26] and it is to be assessed on the balance of probabilities[27] taking into account the gravity of the allegations.[28]

[46] Mr Fox was terminated for not isolating the mechanical valves during the second incident. Roy Hill considered this to be sufficiently serious given Mr Fox's first isolation breach in January 2025 and the fact that Mr Fox was on a PIP at the time of the second incident.

[47] The uncontested evidence is that the oil spill on 11 January 2025 occurred because Mr Fox did not properly isolate the valve prior to commencing work on the oil rack. It is also not contested that Mr Fox did not complete a JHA prior to commencing the task.

• [48] Mr Fox submits that this isolation breach was "technically true",[29] but makes the following submissions:

[49] Firstly, as the incident happened within a "Safety Bunded area" and there were existing issues, his actions were like "pulling down a STOP [sic] sign because it was illegible".[30] This is a confusing analogy. Putting to one side that Mr Fox did not identify with any detail, or establish these existing issues, it does not negate the fact that Mr Fox did not take well-established safety measures such as completing a JHA and adhering to tagging and isolation protocols.

[50] Secondly, there was no investigation conducted into the first isolation breach. It does appear from the evidence that Mr Fox was not formally asked for his version of events prior to Roy Hill reaching a view on what occurred. However, I find that in the circumstances this was not unreasonable. Figuring out what happened was not complicated. Mr Fox told Mr Power and Ms Cooper that he had not completed a JHA and he had not isolated the valve prior to his task. Even now, Mr Fox does not contest this. It is unclear what other investigation was necessary to determine what had happened. I note that Mr Fox was not denied the opportunity to raise mitigating factors, as he had the opportunity to do so during the first show cause process.

• [51] Thirdly, during the show cause meeting Mr Halpin and Ms Cooper were embarrassed and nervous and that Mr Halpin "basically begged" Mr Fox to consider accepting a first and final written warning, undergo refresher isolation training, and participate in a PIP.[31] I note that Mr Fox did not put any of these assertions to Mr Halpin. It is unclear how Mr Fox's impressions of Mr Halpin's and Ms Cooper's body language change Mr Fox's actions.

[52] I find that Mr Fox's actions on 11 January 2025 did constitute a safety breach. Mr Fox is an experienced fitter. He would know the importance of completing a risk assessment and proper isolation procedures.

[53] Mr Fox's submissions regarding the second incident can be summarised as follows:

[54] Isolating the mechanical valves was not necessary: much of Mr Fox's arguments centre on this point. Mr Fox argues that there was an unnamed plumber involved in the job who did not think it was necessary to isolate the mechanical valves. Mr Fox did not seek to call this plumber as a witness. I do not give any weight to this submission.

[55] Mr Fox also contends that because he had not yet started replacing the pump, Roy Hill could not be certain that he wasn't going to isolate the mechanical valves. This is not an honest argument. During the hearing Mr Fox conceded that he did not intend to isolate the mechanical valves as he did not think it was necessary.

[56] Roy Hill's position effectively is that Mr Fox was the tradesperson in charge of the job, and the mechanical valves had to be isolated.

[57] The parties agree that there was low to no risk of a hazard of stored energy in the pump Mr Fox was replacing. What the parties do not agree on is whether an isolation is required in such a situation.

• [58] Unhelpfully, Roy Hill did not provide me with a copy of its isolation and tagging procedure,[32] even though it is at the heart of the second incident. Roy Hill also did not provide a copy of the relevant JHA for the pump replacement job. Though the need for isolation and tagging is well-known, and there will be largely similar practices across sites, it does not mean there won't be nuance from site to site.

[59] Also unhelpfully, the witnesses largely did not refer to the content of the isolation and tagging procedure; simply that it existed. The witnesses mostly gave evidence on whether there was a hazard during the second incident and whether isolation was needed in situations where there was low to no risk.

[60] Based on the competing evidence and given I did not have a copy of the procedure of a JHA, I cannot determine whether Mr Fox's failure to isolate the mechanical valves breached Roy Hill's isolation and tagging procedure.

[61] I also note that the parties disagreed on other single member decisions of this Commission dealing with other dismissals involving breaches of isolation procedures. Given my finding above, it is unnecessary for me to traverse those decisions.

[62] Mr Power had a vendetta against Mr Fox: Mr Fox submits that the reason why the second incident attracted so much attention and led to his dismissal is because Mr Power wanted to get rid of him. Mr Fox did not put this to Mr Power during cross-examination. Assessing Mr Fox's materials, it seems that because Mr Fox is aggrieved with Mr Power being prominently involved in the reporting of both incidents, he has attributed this personally to Mr Power. I do not find that there was credible evidence establishing that Mr Power had a vendetta against Mr Fox.

• [63] Roy Hill was looking for an excuse to dismiss him: Mr Fox submits that Roy Hill used safety protocols as a reason to terminate his employment as it was the easiest method to get rid of him. This is because he did not "silently put up with sub-standard safety practices".[33] This is a plainly contradictory submission. Mr Fox also insinuates that as Mr Halpin and Mr Power are both Irish, they have "offsite connections".[34] This is an offensive submission and not based on any evidence.

• [64] The need for a JHA: Mr Fox concerningly contends that prior to being placed on his PIP he regularly would not complete JHAs and that no one would check JHAs.[35] Mr Fox also confusingly submits that he has worked in oil and gas and has maintained safety standards higher than those in mining but that he cannot be expected to maintain oil and gas safety standards wherever he works.[36]

[65] I find Mr Fox's failure to complete a risk assessment prior to commencing the pump replacement to be the most alarming aspect of the second incident.

• [66] It is not controversial that safety is of utmost importance in the workplace, particularly on mine sites where safety incidents can have serious implications for health and life. That is why there is legislation mandating that PCBUs, officers, and workers have duties with regards to workplace health and safety.[37] Part of this duty is the management of risks and is why formal risk assessment mechanisms such as JHAs and Take 5s exist. This is widely known and understood in blue collar workplaces, such as mining. It is also clear from Mr Fox's PIP documentation that there was a clear instruction and expectation that formal risk assessments needed to be completed.

[67] Mr Power's uncontested evidence is that there was a JHA for the pump replacement job, but Mr Fox had not signed onto it. I find that a JHA was necessary in the circumstances. Mr Fox's views on whether the mechanical valves required isolation and whether there was a hazard should have featured in the risk assessment. It is also not controversial that an electrical isolation was needed and was performed.

[68] I find that by not completing the JHA for the job, Mr Fox did breach safety protocol.

[69] Mr Fox not completing the JHA for the second incident is not a valid reason by itself. However, I agree with Roy Hill that there is a different story when considering all the circumstances.

[70] It is unclear why Mr Fox did not learn from the first incident and chose to deviate from his PIP; other than he simply did not think it was necessary to sign onto the JHA. This is concerning given the importance of risk assessment and given there was only three months between the first and second incident.

• [71] Mr Fox was aware of the importance of completing risk assessments such as a JHA. He had completed a week-long refresher training on safety after the first incident; it was explicitly stated in Mr Fox's PIP that he was expected to complete appropriate risk assessments such as a JHA; and he was providing evidence of his risk assessments daily to his supervisor. As noted in [37] of this decision, in Mr Fox's email to Mr Halpin and Ms Cooper on 18 May 2025, Mr Fox even states that since the first incident his crew has been asked to "focus on JHAs like never before".[38]

[72] Given my findings on the first and second incident and the circumstances of Mr Fox's PIP, I find that there was a valid reason for Mr Fox's dismissal.

4.2 Section 387(b) and (c) - notification of valid reason and opportunity to respond

• [73] An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss.[39] Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.[40]

• [74] As set out in [28], Mr Fox was informed via email on 13 May 2025 that Roy Hill was considering terminating his employment for failing to isolate the mechanical valves in the pump change. Mr Fox made several responses in writing and attended the show cause meeting. Mr Fox submits that as Roy Hill did not provide the investigation findings to him, he did not have the opportunity to respond. Mr Fox further submits that his communications with Roy Hill were "simply procedural communications" and not an opportunity to respond.[41]

[75] I disagree with Mr Fox. It is clear from his materials that he disagreed with Roy Hill's findings and how it reached those findings. He is entitled to do so. That does not mean however that he was not given the opportunity to respond to the reason for dismissal. Based on the uncontested written correspondence between the parties and the show cause meeting on 20 May 2025, I find that Mr Fox was notified of the reason for his dismissal and had the opportunity to respond.

4.3 Section 387(d) - any unreasonable refusal by the Respondent to allow a support person

[76] Mr Fox was informed that he could have a support person, and he did not seek to bring one to the show cause meeting. I find that this is a neutral consideration in this case.

4.4 Section 387(e) - warnings concerning performance

[77] Mr Fox received a first and final written warning on 20 January 2025 regarding the first isolation breach. Mr Fox downplays this warning and the incident, stating that the isolation breach was only "technically true" and that Roy Hill was "making way to [sic] big a deal" of the matter.[42] Mr Fox submits that he had also requested a review of the investigation findings.

[78] I do not agree with Mr Fox. He did not complete proper isolation when there was stored energy. This resulted in a large oil spill, which was a hazard. Mr Fox also did not complete any formal risk assessment. Mr Fox admitted to the breaches at the time. Mr Fox only requested a review of the first isolation breach after the investigation into the second isolation breach had started.

[79] Mr Fox also makes much of Mr Halpin and Mr Robinson deciding to not terminate him after the first isolation breach. This is not in Mr Fox's favour, as it shows that Roy Hill genuinely took into account what Mr Fox had to say at the show cause meeting in relation to the first isolation breach.

4.5 Section 387(f) and (g) - size of the Respondent's enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed

[80] Roy Hill employs approximately 1500 people and has a large team of HR specialists. There is no absence; I find that this is a neutral consideration.

4.6 Section 387(h) - any other matters the Commission considers relevant

• [81] Mr Fox submits that Roy Hill ignored serious safety events. Mr Fox cites the following in support of this:[43]

(a) a battery explosion where he was exposed to battery acid, noting that Mr Power did not report it.

(b) A second battery explosion on an unidentified day where it was also not reported by an unidentified person.

(c) An emergency back-up generator at camp did not have its oil changed contrary to paperwork. Mr Power did not do an oil test to verify Mr Fox's concerns.

(d) He has been bullied, including his photo being taken and photographs of work areas to suggest he had left a mess. Further aggressive behaviour that was reported to Mr Power but ignored.

[82] Mr Power's evidence is that on 20 November 2024, Mr Fox asked him to look at the back-up generators. Mr Power's impression was that some gas had released from the internals of one of the batteries and there had been a crack in the battery covering. Mr Fox did not tell Mr Power that he'd had any contact with acid, and Mr Fox did not have any visible injuries.

[83] I find that Mr Fox's submissions on this point lack detail and cogency. I am not persuaded that this is a matter that is relevant in considering whether Mr Fox's dismissal was unfair.

[84] Mr Fox submits that the time Roy Hill took to investigate the second incident was inappropriate.

[85] The second incident occurred on 13 April 2025. Mr Fox was stood down that day. Mr Fox was then on R&R from 17 April to 1 May 2025. Mr Fox was asked for a response for the investigation on 24 April 2025 and attended a meeting with Ms Cooper and Mr Halpin on 1 May 2025. The show cause process started on 13 May 2025, and Mr Fox was dismissed on 20 May 2025.

[86] I do not find anything untoward in the timeframes just outlined. This is not a relevant factor in my consideration.

4.7 Is the Commission satisfied that Mr Fox's dismissal was harsh, unjust, or unreasonable?

[87] I have made findings in relation to each matter in s 387 as relevant to this case. The considerations in ss 387(a), (b), (c), and (e) weigh in favour of a finding that the dismissal was not unfair, whilst the other considerations in s 387 are neutral.

[88] Based on the evidence and submissions before me, I do not find that Mr Fox's dismissal was unfair. His unfair dismissal application is therefore dismissed.

[1] Witness Statement of Tony Halpin, Digital Court Book 108 [1]-[3].

[3] Witness Statement of Joseph Power, DCB 77 [7].

[8] Witness Statement of Joseph Power, DCB 78 at [13] and [15], 79 at [17] and [19].

[24] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371, [373].

[26] King v Freshmore (Vic) Pty Ltd Print S4213, [24].

[27] Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[28] Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336.

[32] See stand down letter sent to Mr Fox on 13 May 2025, referencing the Roy Hill Isolation and Tagging Manual [OP-MAN-00168], DCB 119.

[37] See: Work Health and Safety Act 2020 (WA), ss 20 - 29.

[39] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [70]-[73]; (2000) 98 IR 137.

Printed by authority of the Commonwealth Government Printer