Industrial Relations Commission of New South Wales CITATION : Australian Workers Union, NSW for J McInherny v Pioneer Construction Materials Pty Ltd [2000] NSWIRComm 263 PARTIES : Australian Workers Union, NSW Pioneer Construction Materials Pty Ltd FILE NUMBER: IRC 4842 of 2000 CORAM: Harrison DP at 1 Unfair dismissal, neglect of duty CATCHWORDS : Intervention refused LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 12/05/2000 DATE OF JUDGMENT: 12/14/2000 Mr C Tate Australian Workers Union, NSW LEGAL REPRESENTATIVES: Mr D Davies Ausgroup Consulting JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 14 December 2000 Matter No IRC 4842 of 2000 The Australian Workers' Union, New South Wales for J McInherny & Pioneer Construction Materials Pty Ltd Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 The application in this matter was filed on 3 October 2000 and subject to proceedings for the purpose of directions and conciliation on 10 October 2000. 2 Mr C Tate, an official of The Australian Workers' Union, New South Wales appeared on behalf of the applicant, Mr McInherny. Mr D Davies of Ausgroup Consulting appeared on behalf of Pioneer Construction Materials Pty Ltd, the respondent employer. 3 These proceedings established that the matter could not be resolved by agreement between the parties. Directions were issued to bring the matter to arbitration on 5 December 2000 at Wauchope Court House, the location of mutual application by the parties. 4 On hearing Mr Tate brought evidence from the applicant. Mr Davies brought evidence from Mr B Allman, employed by the respondent as Quarry Production Manager at its quarry at Sancrox Road, Wauchope. 5 The evidence established that the applicant commenced employment at Sancrox Road Quarry on 29 September 1998 as a casual quarry worker, Grade 4, pursuant to the Quarrying Industry (State) Consolidated Award (316 IG 961) ('the Award'). The applicant's duties were initially to operate the crushing plant. 6 The applicant continued in his employment as a casual to the date of termination of that employment on 21 September 2000. 7 In March 2000 Mr Allman sought discussions with the applicant concerning the applicant's unavailability for overtime. It is Mr Allman's evidence that he had formed the view that Mr McInherny had lost interest in his employment. Mr Allman further deposed that Mr McInherny had become quite volatile during the course of these discussions. 8 The result of these discussions was a rearrangement of the applicant's hours to include regular work on Saturdays, Sundays and Mondays (as well as some other days) to allow the applicant time to attend to his farm. The evidence of Mr Allman is that this arrangement worked well for both parties, resulting in the increase in the classification of the applicant to grade 6 to take account of extra duties he performed in this role. 9 The evidence established that the applicant was regularly required to drive a 35 tonne Euclid tip truck to transport materials around the quarry. 10 On 15 September 2000 the applicant commenced work at 7.30am and was allocated to driving the tip truck. At 3.30pm that day the applicant was involved in a significant accident in which he drove the tip truck some 250 metres with the tipping body extended into the raised position, striking 11KV overhead power lines. The evidence of the applicant is that he was unaware that he had struck the power lines and continued for a further 50 metres with the tipping body raised until he struck a tree, a branch falling on the front of the truck, alerting him to the fact that the tipping body was in the raised position. 11 The applicant's evidence is that he reversed the truck to level ground and leapt from the cabin. The applicant deposed that he took a piece of rag with him from the cabin of the truck and wrapped it around his hand to pull the power line from the truck. 12 In subsequent investigation and interview the applicant contended that his actions had been appropriate and that he would, in the same circumstances, act in a similar manner. During the course of this evidence in these proceedings, the applicant conceded that it had been dangerous to seize the fallen power line, putting that in hindsight he was rather silly to have taken that action. 13 The applicant deposed that he was unaware of the potential danger of live electrical cables and that he had received no training or information in this regard. The applicant agreed in cross examination that he had undertaken a farm welding course at the Port Macquarie TAFE, deposing that there had been no instruction during that course on risk or safety procedures appropriate to live electrical cables. 14 The evidence of Mr Allman is that Mr McInherny had been assessed as competent to drive the 35 tonne tip truck and had obtained substantial experience in its operation. 15 The applicant contended that adjustments to the height of the seat in the vehicle had extended the length of downward reach required to lower the tipping body. The applicant put that he pushed the lever down the usual distance, then assuming that the tipping body had been lowered to the travelling position. 16 The applicant conceded in cross examination that this explanation was not offered to Mr Allman at the time of investigation of the incident or at any other time prior to these proceedings. 17 Mr Tate submitted that the event of 15 September 2000 was an accident beyond the control of Mr McInherny and that he should not be penalised with the termination of his employment as a result. Mr Tate sought reinstatement, re-employment or compensation. 18 Mr Davies submitted that the negligence and disregard for safety demonstrated by Mr McInherny was sufficient to warrant termination of his employment. Mr Davies put that Mr McInherny was familiar with the vehicle and had driven it from 7.30 am on the day of the incident and some days previously, subsequent to the seat modification, without incident. 19 Mr Davies submitted that the disregard for safety of himself and others at the time of the event, and during subsequent investigation a failure to acknowledge that his actions were inappropriate, led the employer to the view that continued employment of the applicant was inconsistent with its obligations pursuant to the Occupational Health and Safety Act 1983. 20 Part 2, Contract of employment of the Award provides that employment may be terminated by the employer without notice for: "… malingering, inefficiency, neglect of duty or misconduct and in such cases the wages shall be paid up to the time of dismissal only." 21 Neither party rely heavily on the downturn in business activity which, Mr Allman deposed, was a further contributing factor to the decision to terminate the applicant's employment. CONSIDERATION 22 The events of 15 September 2000 are serious and reflect poorly on the applicant's attention to his duties. It is simply not permissible to drive a vehicle with the tipping tray extended and incomprehensible as to how Mr McInherny would be unaware of this. 23 The applicant's almost complete lack of awareness of risks associated with live electrical cable is difficult to comprehend, however in the absence of other evidence I accept his deposition on the matter, which further mitigates against intervention. 24 The applicant's attitude of defending his actions and unwillingness to accept that he had acted in an improper and unsafe manner until brought to give evidence in these proceedings do not assist him. 25 I come to the view that this is not a matter which invokes the discretion of the Commission for intervention and accordingly decline to do so. 26 Matter No IRC 4842 of 2000 is so concluded. 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