Termination hits a bump in the road26 February 2016
Employers must ensure that an investigation of any employee is conducted with consistent standards and procedural fairness, as this recent case illustrates.
A worker has been reinstated following a Fair Work Commission (FWC) hearing, after originally being dismissed for causing a vehicle rollover.
The dismissal, which was based on a questionable expert report, was held to have been made based on an invalid reason, with the FWC instead having favoured the applicant's evidence that the incident was merely an accident.
This case, Kenny v BHP Coal Pty Ltd  FWC 4231, again highlights the interplay of the safety and employment spheres, which in-house lawyers and law firms need to understand. It also emphasises the importance of conducting thorough investigations to justify disciplinary action. In doing so, the case reiterates that, even in situations in which a serious incident has occurred, employees are guaranteed consistent standards and procedural fairness when subject to investigation.
On 29 October 2014, Mr Michael Kenny, an electrician for BHP Coal at the Goonyella Riverside Mine, was scheduled to work a night shift from 6pm to 6.15am. However, at the start of the shift a large storm disrupted his normal routine and resulted in his failure to complete an Occupational Safety Performance Assessment Technology (OSPAT) test and a pre-start vehicle check, both of which are mandatory prior to the start of each shift.
During his shift, Mr Kenny was driving along an unsealed road in a Toyota Landcruiser when he somehow managed to roll the vehicle, claiming that he lost control in a soft spot of the road that was concealed by "bulldust". BHP instead relied upon an "expert report" conducted by a traffic incident expert, which suggested that the cause of the rollover was the negligent or deliberate actions of Mr Kenny. Further, BHP argued that the combination of the pre-start failures and Mr Kenny's unsafe driving caused a loss of confidence in his ability to work in a safe manner.
Context is everything
Mr Kenny claimed the significant storm activity was the reason he didn't carry out the OSPAT test and the pre-start vehicle check. In addition, BHP acknowledged that without its finding of unsafe driving, the pre-start check and OSPAT test failures alone would not have been significant enough to result in termination. Therefore, much of the case turned on whether Mr Kenny's driving had, in fact, been negligent or intentional.
As an employee of BHP Coal for almost 28 years, Mr Kenny had at all times exhibited the behaviour of a prudent, experienced and safety-conscious employee, and there were several factors relating to the incident that supported this assertion. These were:
Mr Kenny was travelling about 20kmh below the maximum speed limit (80kmh) at the time of the incident.
The purpose of Mr Kenny's trip was to collect insulated reading glasses, equipment he considered essential for the safe execution of a task.
When Mr Kenny first arrived on site, he advised the outgoing crew of the potential hazards related to the storm.
Mitigating circumstances, such as Mr Kenny's length of service and his unblemished safety record, should perhaps have been afforded more weight by BHP when considering whether to terminate his employment, and demonstrate the strong position of long-serving employees in safety investigations.
This case also raised questions about the adequacy of safety incident investigations and their role in determining what, if any, disciplinary action an employer should take. The investigation in this case started poorly, when a report was completed on the basis of information supplied solely by BHP.
More specifically, the author of the report did not undertake a site visit and did not obtain material from or interview Mr Kenny. He was also not provided with information about the depth of the bulldust and conceded that the report was "simple" in nature. To make matters worse, the report asserted that the incident was caused by Mr Kenny's inattentive driving and panicked reaction.
An additional four ICAMs (a type of safety investigation analysis method) were then undertaken by BHP in an attempt to properly determine the root cause of the incident, each of which found Mr Kenny's reckless or intentional driving was the catalyst.
Regardless of BHP's various investigations, the FWC ultimately found Mr Kenny's driving had not been either intentional or negligent, and therefore held there was no valid reason for his termination. As a result, Mr Kenny was not only reinstated, but was also awarded restoration pay minus a deduction of two months due to the safety check omissions.
This case therefore highlights the need to ensure safety investigations are conducted swiftly, with a focus on obtaining detailed evidence to ensure that an objective and well-informed decision can be made. Further, it enforces the need for employers to ensure that procedural fairness is provided, including consideration of all relevant circumstances such as the employee's tenure and performance history.
This article was originally published in the February issue of Proctor and is republished here with their kind permission. Click here to read the article.