Lloyd Alwyn Robert Noble v Pancontinental Resources Pty Limited [1995] IRCA 520

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - CAPACITY AND CONDUCT - VALID REASON - PROCEDURAL FAIRNESS INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DC, 170DE Nicolson v Heaven & Earth Gallery Pty Ltd 126 ALR 233 LLOYD ALWYN ROBERT NOBLE v PANCONTINENTAL RESOURCES PTY LIMITED No. QI 94/0280 BEFORE: BOULTON JR PLACE: BRISBANE(HEARD IN TOWNSVILLE and BRISBANE) DATE: 27 JUNE 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 94/0280 QUEENSLAND DISTRICT REGISTRY BETWEEN: LLOYD ALWYN ROBERT NOBLE Applicant AND: PANCONTINENTAL RESOURCES PTY LIMITED Respondent MINUTE OF ORDERS CORAM: BOULTON JR PLACE: BRISBANE (HEARD IN TOWNSVILLE and BRISBANE) DATE: 27 JUNE 1995 THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 94/0280 QUEENSLAND DISTRICT REGISTRY BETWEEN: LLOYD ALWYN ROBERT NOBLE Applicant AND: PANCONTINENTAL RESOURCES PTY LIMITED Respondent BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN TOWNSVILLE and BRISBANE) DATE: 27 JUNE 1995 REASONS FOR JUDGMENT The applicant, now aged 39, was employed by the respondent as a miner at its Thalanga mine outside Charters Towers in Queensland. He had been so employed since early May 1991. His employment was terminated by the respondent on 6 December 1994. In the early hours of 4 December 1994 a D400 truck, being driven underground by the applicant, suffered damage. Much of the evidence at trial was devoted to the applicant's explanation for the damage, and that contended for by the respondent. I prefer the evidence led on behalf of the respondent, which evidence included that of a Mr Meka, a mechanical engineer and the site engineer at the mine. I found the physical evidence, supplemented by Mr Meka's opinions, to be very cogent. I find that the truck sustained two impacts, with significant damage being caused to it by a substantial impact on the right hand front corner of its tray. The truck was being driven forward on the occasion of the damage to its tray. I reject the applicant's explanations to the contrary. The respondent conducted an investigation following the incident. Subsequently, there was a meeting on 5 December 1994 at which the applicant, his union representative and various members of the mine management attended. At the outset, the mine manager, a Mr Taylor asked the applicant for his version of how the truck came to sustain damage. The applicant gave an explanation contrary to what I have found in fact occurred. Mr Taylor then put the respondent's theory about how the damage occurred to the applicant, including making reference to a report produced by Mr Meka. In the absence of the applicant and his union representative, the mine management members considered the applicant's explanation and they rejected it. The applicant and his union representative were called back into the room, but not before Mr Taylor had been authorised by the respondent's general manager to terminate the applicant's employment. When the meeting resumed, Mr Taylor took up with the applicant a number of points. They were the respondent's non-acceptance of the applicant's explanation of the damage, the respondent's theory about the cause of the damage, the applicant's failure to contact his shift boss before moving the damaged truck, the applicant's refusal of an instruction to see his foreman, a Mr Dekker and Mr Taylor at the change of shift on the morning of 5 December 1994, and his previous record as an employee of the respondent. Citing all these points, Mr Taylor told the applicant his services were terminated forthwith. As for the allegation that the applicant had moved the damaged truck without reference to his shift boss, both Mr Taylor and a Mr Lennox, the respondent's personnel services officer regarded this act on his part very seriously. The applicant gave evidence that he had encouraged another truck driver to use his (the other driver's) truck to push the damaged tray of the applicant's truck back into position. This occurred underground, in a decline. By trying to move the truck up the decline with its rear tray pivots broken, there was a prospect of the tray falling off. Had this happened, the decline would have been blocked, causing potentially extensive delays in mining and consequent lost production. I accept that the applicant, as an experienced miner, ought to have left the truck where it was until the mine's mechanical staff had had a chance to assess it, and perhaps secure it in some way, prior to bringing it to the surface. I should add that in respect of this ground of termination the respondent relied on two clauses of the Underground Safety Handbook (ex R2) issued by it to its employees at the mine. These respectively read: Report any mechanical problems to your supervisor. Reporting Unsafe Conditions or Hazards: (a) If, in your opinion, an unsafe condition exists and requires urgent attention, report it to your supervisor as soon as possible. He will take whatever action is necessary to either remove the hazard or to ensure protection unless it can be removed. In my opinion, the respondent ought to spell out with greater clarity in its handbook the prohibition relied on by it against the moving of damaged vehicles underground without first reporting the occurrence to a supervisor. While I do not consider that the applicant's failure to meet with his foreman and Mr Taylor at the change of shift on the morning of 5 December 1994 would be sufficient on its own to justify his dismissal, it can be viewed as part of a pattern of behaviour exhibited by him to that time. On earlier occasions he had been disciplined for absence without leave and coming to work intoxicated. These episodes were part of his record as an employee referred to by Mr Taylor at the 5 December 1994 meeting. Ex A1, a letter dated 28 June 1994 from the respondent to the applicant, makes reference to the applicant's absence from work on 24 June 1994, and on previous occasions. It also makes reference to counselling on 17 February 1994 and 28 May 1994 about absenteeism. The letter was expressed to be a final reprimand, and included a warning that further disciplinary action for any further unacceptable performance on the applicant's part may include dismissal from employment. I do not accept the explanations the applicant gave in evidence for his absences from work without leave. I find that the respondent had valid reasons for terminating the applicant's employment within the meaning of s 170DE of the Industrial Relations Act 1988, these being related to his capacity and conduct. By his actions the applicant caused considerable expense to the respondent in repairs to the truck and lost production time while the truck was out of commission. The termination was not otherwise harsh, unjust or unreasonable. On behalf of the applicant it was argued that he had been denied procedural fairness in the manner of the termination of his employment. I consider that the respondent accorded him ample opportunity to put his case at the meeting of 5 December 1994, in the presence of his preferred union representative. The respondent had made appropriate inquiries to eliminate the possibility that the truck damage had occurred in a manner other than that believed by its representatives. The applicant knew the gravity of the 5 December 1994 meeting. When Mr Dekker spoke to him at the end of that morning shift about meeting with him, the applicant responded by saying: "As long as you are not going to hang me". I do not consider that procedural fairness required the respondent to rehash with the applicant at the 5 December 1994 meeting the details of his past record as an employee. I am satisfied that the applicant was well aware at that meeting of the significance of his past record in the light of his then situation. I consider that, in the present circumstances, the respondent's failure to give the applicant the opportunity to make submissions on whether a lesser penalty than termination ought to result did not deny him procedural fairness. I conclude that in the manner of his dismissal the applicant got "a fair go" as that is understood in terms of s 170DC of the Act - Nicolson v Heaven & Earth Gallery Pty Ltd 126ALR 233 at 243. I order that the application be dismissed.