Adam Hall v Pacific National Pty Ltd [2022] FWC 94

1 Fair Work Act 2009 s.394—Unfair dismissal Adam Hall v Pacific National Pty Ltd (U2021/8155) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 20 JANUARY 2022 Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed. Introduction [1] Mr Adam Hall was employed by Pacific National Pty Ltd (PN) as a Terminal Operator from May 2017 until his dismissal on 24 August 2021. Mr Hall was paid three weeks’ pay in lieu of notice on his dismissal. Mr Hall contends that his dismissal was harsh, unjust and unreasonable. PN denies those allegations. [2] I heard Mr Hall’s unfair dismissal case against PN on 9, 10, 14 and 15 December 2021. Mr Hall gave evidence in support of his case. PN adduced evidence from Mr Steven Zsiros, Shift Supervisor, Mr Aaron Curtis, Bulk Manager Operations – Lower Valley, and Mr Nicholas Clifton, Head of Operations, Bulk. Background [3] Mr Hall was engaged in the position of Level 2 Terminal Operator at the PN Morandoo Depot, which is located near Newcastle harbour. From its base at the Morandoo depot, PN provides services at numerous customer sites. One such customer is Infrabuild Trading Pty Ltd (InfraBuild). InfraBuild manufactures steel and related products, including wire. PN assists InfraBuild in the loading of steel and steel made products and the transportation of such products by rail. [4] InfraBuild moves large coils of wire by a 16 tonne forklift within an area known as its wire yard to trucks and rail wagons for transportation away from the site. The forklift is operated by an InfraBuild employee. Railway tracks lead into the wire yard. PN uses the railway tracks for the shunting of empty rail wagons into the wire yard to be loaded with product and the shunting of full wagons of wire out of the wire yard. Shunting at the wire yard is typically performed by two PN employees. One employee drives the locomotive which is attached to the wagons at various points in time. The second employee, the shunter, provides directions to the locomotive driver from the ground by way of radio communication, to enable the locomotive [2022] FWC 94 DECISION -- 1 of 31 -- [2022] FWC 94 2 driver to know when and where to go. The shunter acts as the ‘eyes’ of the locomotive driver because the locomotive driver will often have limited or no visibility of certain areas when the wagons are being pushed or pulled around the wire yard by the locomotive. [5] The primary issue in the case concerns alleged safety breaches which took place on 13 May 2021 in connection with the shunting of rail wagons in the wire yard. Mr Hall was working in the role of shunter in the wire yard on 13 May 2021. Site inspection [6] During Mr Hall’s oral evidence on 9 December 2021 it was very difficult to understand the sequence of events which took place on 13 May 2021 and where Mr Hall was located during each of these events. As a result, I requested that a site inspection be undertaken. I am grateful for the permission given by InfraBuild to allow us to enter and inspect the wire yard. I am also grateful for the work undertaken by PN to arrange the site inspection at short notice. In my opinion, the site inspection was essential to understand exactly what happened on 13 May 2021. [7] Prior to attending and inspecting the wire yard on 10 December 2021, my Associate sent an email in the following terms to the parties: “Dear parties Deputy President Saunders wishes to clarify the nature and purpose of the site inspection this morning. First, anything that occurs during the inspection will not constitute evidence in the proper sense. The function of the inspection is to assist the Commission in understanding the evidence which has been, or will be, adduced by the parties at the hearing. Second, the inspection is not to be used as an opportunity, through interactions with persons encountered on the inspection, to bring in evidence “by the backdoor”. It may be necessary during the inspections for identified persons to explain what is being shown to the Deputy President, and the Deputy President may ask questions as part of that process to assist in his understanding of this. However, this will not constitute evidence. Third, representatives of the parties may wish, either at an appropriate stage of the inspection or at the hearing, to place on record a summary of what has occurred during the inspection. This may be done with the permission of the Deputy President and, if permission is granted, any such summary will be recorded and a transcript produced. The inspection will not otherwise be recorded. Fourth, parties may, at the hearing, make submissions concerning the relevance, if any, of the inspection to the evidence adduced at the hearing and the issues in the proceedings. Any such submissions will of course be considered by the Deputy President. -- 2 of 31 -- [2022] FWC 94 3 Yours sincerely” [8] Following the site inspection on 10 December 2021, Mr Hall gave further oral evidence in the Fair Work Commission (Commission). The extent of that evidence was shortened by reason of the parties being able to agree, after the site inspection, on the following sequence of events which took place on 13 May 2021: 1. Mr Hall was shunting wagons in an area adjacent to the wire yard. 2. At 17:13, Mr Hall received a call from Mr Zsiros, asking him to bring empty wagons into the wire yard. 3. At this time there were seven wagons in the wire yard. They were loaded with wire. 4. Mr Hall needed to have the seven full wagons taken out of the wire yard in order to take seven empty wagons into the wire yard to be loaded with wire product. 5. At approximately 17:17, Mr Hall called Infrabuild and obtained a green light to shunt the wire yard. The green light was given. 6. Mr Hall gave instructions to the locomotive driver in order to take seven empty wagons to a point where they could be moved by the locomotive into the wire yard. 7. The locomotive, at this point, was at the front of the seven empty wagons (away from the wire yard). 8. The locomotive was used to push the empty wagons into the wire yard, on Mr Hall’s instructions. Before doing so, the sandwich board and scotch block were removed from the rail tracks. 9. Mr Hall attached the full seven wagons within the wire yard to the chain of seven empty wagons. At this point, the locomotive was still back beyond the wire yard and had 14 wagons attached to it. The seven empty wagons were closest to the locomotive and the seven full wagons were at the other end of the train to the locomotive. 10. Mr Hall instructed the locomotive driver to drive away from the wire yard until such point as the wheels of the last full wagon went beyond the C5 points. Mr Hall then changed over the points. He then instructed the locomotive driver to push the full wagons toward road 260. 11. The full wagons were then detached from the empty wagons. 12. Mr Hall then instructed the driver of the locomotive to pull all empty wagons out of road 260 past point C5. 13. Mr Hall then instructed the locomotive driver to push the empty wagons into the wire yard where they were loaded with wire. Before Mr Hall gave these instructions, someone from InfraBuild changed the light from green to red and did not inform Mr Hall. Accordingly, when the empty wagons were being pushed into the wire yard the light was red. Similarly, while Mr Hall was driving the Pacific National ute to a location near where wire coils were being loaded onto a truck the red was light. 14. Mr Hall parked his ute and alighted from it. The forklift was nearby, about 4m-5m away according to Mr Hall. Initial matters to be considered [9] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application. -- 3 of 31 -- [2022] FWC 94 4 [10] There is no dispute between the parties and I am satisfied on the evidence that: (a) Mr Hall’s application for unfair dismissal was made within the period required in s 394(2) of the Act; (b) Mr Hall was a person protected from unfair dismissal; (c) the Small Business Fair Dismissal Code did not apply to Mr Hall’s dismissal; and (d) Mr Hall’s dismissal was not a genuine redundancy. Was the dismissal harsh, unjust or unreasonable? [11] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Hall’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below. Valid reason (s 387(a)) General principles [12] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 [13] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).5 [14] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.7 [15] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.8 In cases such as the present where allegations of serious misconduct are made, the 1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at [373], [377-8] 2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at [373] 3 Ibid 4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685] 5 Ibid 6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [24] 7 Ibid 8 Ibid -- 4 of 31 -- [2022] FWC 94 5 Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.9 [16] In Patrick Stevedores Holdings Pty Ltd v CFMMEU,10 Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]: “Fact Finding and the State of Satisfaction Required 14. It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140. 15. Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties. 16. It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission: The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion. Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw...at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He 9 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at [216] per Dixon J 10 [2019] FCA 451 -- 5 of 31 -- [2022] FWC 94 6 pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262): ‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...’ Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363). 17. It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)…” [17] It follows that for PN to succeed in relation to its allegations of misconduct against Mr Hall I am required to reach a state of satisfaction or an actual persuasion that PN has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.11 PN’s case regarding valid reasons 11 Ibid at [18] -- 6 of 31 -- [2022] FWC 94 7 [18] Mr Hall’s employment was terminated because PN found that he:  breached important and documented safety rules, which in turn contributed to a ‘near miss’ which could have given rise to a serious injury;  failed to report the incident, in breach of clear directions regarding incident reporting; and  failed to take responsibility for the relevant conduct or accept that he had not behaved consistently with PN’s expectations. [19] PN submits that each of these matters individually constitute valid reasons for dismissal. [20] PN contends that Mr Hall engaged in three instances of behaviour that breached its operating procedures. First, Mr Hall drove a motor vehicle into the wire yard notwithstanding that entry was not permitted by the traffic light system in operation at the time. Secondly, Mr Hall gave instructions for rail wagons to be shunted into the wire yard notwithstanding that entry was not permitted by the traffic light system in operation at the time. Thirdly, it is alleged that Mr Hall parked his vehicle in a dangerous location in an area approximate to a forklift without checking to see whether other vehicles or machinery could come into contact with his parked vehicle. [21] PN contends that the first and second breaches are inconsistent with:  clause 6 of PN’s procedure known as FRT-PRO-SAF (InfraBuild Shunting Procedure), which expressly provides that entry to the wire yard and 264 road should be on a “green light”, and  clauses 1 and 13 of the Pacific National Code of Conduct (Code), which relevantly require employees to: o understand and follow all applicable health and safety policies, and o perform work in a safe manner and in accordance with relevant procedures and standards. [22] PN submits that Mr Hall’s failure to look for hazards before driving his ute into the wire yard where the forklift was operating and then parking his ute in the wire yard was inconsistent with PN’s site rules which require employees to make eye contact with forklift drivers when interacting with them. PN also contends that such conduct is inconsistent with clauses 1 and 13 of the Code. Relevant facts [23] Some of the facts relevant to these alleged breaches of various policies and procedures are set out in paragraphs [3] to [8] above. -- 7 of 31 -- [2022] FWC 94 8 [24] There is no dispute that Mr Hall was trained in the relevant procedures and inducted on to the relevant parts of the work site. [25] Mr Hall received training in a module titled “Workplace Health, Safety & Environmental Induction” which outlines, amongst other things, the procedures for InfraBuild site access and site rules. These rules include: “Moving around Site  Make eye contact when interacting with drivers in vehicles, forklifts or trucks” [26] Mr Hall also received training on the ‘line of fire’ principle when a forklift is in operation. That training included:  a presentation in which Mr Hall was instructed to “keep clear of the ‘Line of Fire’ and do not enter forklift exclusion zone or cross the path of a forklift without gaining permission from the Forklift Operator”, and  a questionnaire in which Mr Hall was asked “Which statement best describes the ‘line of fire’ principle when a forklift is in operation?”, to which he correctly answered “Keeping clear of the path of the forklift, turning circle and load with the potential to fall or strike”. [27] PN’s Incident Reporting and Investigation policy requires employees to report all incidents and “Near Misses” as soon as is reasonably practicable. A “Near Miss” is defined in the policy as “an unplanned event that did not result in injury, ill-health or damage to plant property or the environment but had the potential to do so”. [28] Clause 3.5.2 of PN’s general shunting procedure (PN-PRO-SAF) (General Shunting Procedure) provides: “3.5.2 Shunt authority All rollingstock movements are authorised, and the track/route must be set for the movement. The worker in control of the shunt:  Confirms the signal indications and network authorities, if applicable.  Verifies the route is set and the track is clear for the movement. o Derailers and catch-points are set in the correct position. o Points are set for the movement. o The track is clear of obstructions and there is no rolling stock fouling the track.  Confirms the safe position of workers before authorising the movement.” [29] Clause 6 of the InfraBuild Shunting Procedure provides: -- 8 of 31 -- [2022] FWC 94 9 “6 From 266 Road Points to Wire Yard, Rod Mill, Bar Mill and North Side (Merchant Bar) Wire Yard 6.1 Check all points to enter and exit yard. 6.2 Call Wire Yard for a GREEN light to enter 264 road on [telephone number]. 6.3 Remove SB-2 and sandwich board. If the Scotch block is engaged DO NOT proceed. 6.4 Protect all road crossings. 6.5 Enter 264 road on a GREEN light and shunt as required. 6.6 When clear of Wire Yard, replace SB-2 and sandwich board. 6.7 Call wire yard and inform them you are clear and that they can reset the RED light.” [30] On approach to the wire yard there is a large sign (No Entry Sign). A photograph of the No Entry Sign is below:12 12 Ex R8 -- 9 of 31 -- [2022] FWC 94 10 [31] The No Entry Sign in the image above is located to the right side of, and about half a metre back from (in the opposite direction to the mill where the wire is produced) a set of rail points known as C5. If one took a straight line through the base of the poles on which the No Entry Sign sits, the line would intersect the rail tracks at about C5. However, this is only because the No Entry Sign is on an angle; it is not perpendicular to the rail tracks. In order to read the No Entry Sign, it is necessary to stand in front of it. From this point, it is clear that the No Entry Sign is located behind (in the opposite direction to the mill where the wire is produced) the C5 points. [32] A lever system may be used to change the direction of travel of rail wagons at C5. In particular, for wagons being moved toward the wire yard, the points at C5 may be set such that rail wagons are (a) directed onto road 264 and into the wire yard for loading or (b) directed onto road 260 and away from the wire yard.13 [33] On 13 May 2021, Mr Hall was contacted by his supervisor, Mr Zsiros, at about 17:13 and asked to take seven empty wagons into the wire yard. Mr Hall had been scheduled to undertake this task later in his shift. At the time he received this instruction, Mr Hall was working in the rail operations area to the side of the wire yard and had seven empty rail wagons attached to a locomotive. There were seven full wagons in the wire yard. They were loaded with wire product. Mr Hall believes that InfraBuild must have observed that he had the empty rail wagons attached to a locomotive and asked for them to be shunted into the wire yard earlier than planned so that they could begin loading those empty rail wagons with wire product. All the known facts suggest that Mr Hall’s belief in this regard was correct. I am satisfied that it was correct. [34] At approximately 17:17, Mr Hall called InfraBuild and obtained their approval to shunt the wire yard. The approval was confirmed by the showing of a green light in the wire yard. Mr Hall saw that the light was green when he arrived at the No Entry Sign. He then proceeded to remove a scotch block and sandwich board from the rail tracks. The scotch block and sandwich board are safety devices which are used to prevent the movement of rail wagons into an area where they do not have approval to go. [35] Mr Hall gave instructions for the locomotive driver to push the empty wagons into the wire yard. They were then attached to the full wagons within the wire yard, so that the locomotive was connected to 14 wagons, the first seven of which were empty and the last seven of which were full of wire product. Mr Hall instructed the locomotive driver to drive away from the wire yard until such point as the wheels of the last full wagon went just beyond the C5 points. Mr Hall then changed over the points. He then instructed the locomotive driver to push the full wagons toward road 260. The full wagons were then detached from the empty wagons. Mr Hall then instructed the driver of the locomotive to pull all empty wagons out of road 260 until the wheels on the last wagon went just beyond the C5 points. Mr Hall then instructed the locomotive driver to push the empty wagons into the wire yard where they were loaded with wire. At no point during this whole process did Mr Hall or his PN ute travel beyond the No Entry Sign. He was either on foot or in his PN ute and was, at all times, within the area designated by the No Entry Sign. When Mr Hall changed the points at C5 and gave instructions 13 Ex A2 -- 10 of 31 -- [2022] FWC 94 11 to the locomotive driver, he was about 30-50cm closer to the wire mill than the No Entry Sign. This was the closest he went to the No Entry Sign while undertaking the shunting exercise to deliver empty rail wagons to InfraBuild in the wire yard. [36] Before Mr Hall gave instructions to the locomotive driver for the empty rail wagons to be pushed into the wire yard, someone from InfraBuild changed the light from green to red and did not inform Mr Hall. Accordingly, when the empty wagons were being pushed into the wire yard on road 264 the light was red. Similarly, while Mr Hall was driving the PN ute to a location near where wire coils were being loaded onto a truck, the red was light. Mr Hall did not notice that the light had been turned from green to red. [37] At about 17:52, Mr Hall parked his ute in the wire yard and alighted from it. The InfraBuild forklift stopped nearby, about 4m-5m away according to Mr Hall. [38] Mr Hall gave evidence that the forklift driver pointed to the red light. Mr Hall then put his hands in the air, to indicate that he did not know the light was red. Mr Hall then says that the light turned from red to green, he and the forklift driver gave each other the “thumbs up”, and they each proceeded to undertake their duties. Notwithstanding Mr Hall’s assertion that the light turned from red to green “seconds” after the forklift driver pointed to the red light,14 it is apparent from the CCTV footage that the light was not changed from red to green for a further period of about 30 seconds. The CCTV footage does not show the light itself, but it does show the only location at which the light can be changed from red to green in the wire mill. I saw that location during the site inspection. The CCTV footage shows an InfraBuild employee, most likely the despatch officer, walking to the position where light can be changed from red to green at a time which is about 30 seconds after the non-verbal exchange between Mr Hall and the forklift driver. No other person went to that location in the wire mill at any other time that could realistically have coincided with the changing of the light from red to green. There are other switches at the location where the light is turned from red to green. It is therefore possible that the despatch officer was doing something other than switching the light from red to green when he is seen in the CCTV footage at the location in question. However, I consider that is unlikely in light of the known times when the light was switched between red and green on the night in question and what can be seen on the CCTV footage concerning the location of the InfraBuild employee at the relevant light switch in the wire mill. [39] Mr Hall gave oral evidence that this was the first time that InfraBuild had changed the light from green to red without first communicating to him that they intended to do so. He explained that InfraBuild often needed to change the light from green to red for a particular operational reason while he was shunting wagons in the wire yard, but they would let him know before they did so. The obvious purpose in letting Mr Hall know that InfraBuild intended to change the light from green to red was to communicate to him that it was not safe to conduct shunting operations at that time. I accept Mr Hall’s evidence in relation to this practice. Absent such a practice, it would have been extremely dangerous for InfraBuild to change the light from green to red. Mr Hall could not reasonably be expected to keep a constant eye on the light while he was in the wire yard. If he was standing behind a rail wagon, Mr Hall could not see the light. Further, Mr Hall was required to observe the wagons at all times while they were being moved 14 PN1281-2 & PN1347 -- 11 of 31 -- [2022] FWC 94 12 within the wire yard. It would not be possible to observe the rail wagons and the light at all times. [40] A business record (email) from InfraBuild (dated 19 May 2021) gives the following explanation for the change in light from green to red on 13 May 2021:15 “Hi Lesa, Here is an update from our investigation from interviews with our employees and review of CCTV. 1) [xx:xx] The Warehouse Fork Driver (Woodman) called Morandoo and requested a shunt due to it not occurring at the usual time. (Woodman) did not communicate this request to Rod Mill Despatch or Forklift Driver. 2) [xx:xx] The Shunter called Rod Mill Despatch (Johns) … and asked “for the green light”, with no additional information about what they were intending to do. 3) [17:35] The night shift Rod Mill Fork Driver (Powell) started his shift and began to off load coils from the Mill to a lorry in Yard 3 West. 4) [17:39] The Shunters ute parked near the end of 264 alongside the loaded RIC wagons. PN took the loaded RIC wagons out on 264 Line. The Shunters Ute left the yard with the train. 5) [17:47] The Rod Mill Fork Driver (Powell) requested Rod Mill Despatch (Johns) switch the light to red so that he could continue loading the lorry in Yard 3 West. (Johns) switched to red as he assumed that PN were finished and not returning. Several Operators interviewed stated that there is only one of the Shunters who routinely calls to advise they have left the yard and finished operations as per FRT-PRO-SAF section 3.7 6) [17:52] The Shunter drove his ute into the yard and parked near the end of 264 Line behind the operating forklift while the red light was active. The Forklift Driver (Panel) was not expecting the ute in the yard and narrowly missed it while reversing away from the lorry. 7) [17:53] The empty wagons began shunting into the yard on 264 Line while the red light was active. The Forklift Driver (Power) saw this and radioed to Despatch (John) to come and activate the green light. Can please send me information from the PN investigation to date?” [41] PN asked whether InfraBuild was prepared to permit any of its employees to give evidence in the Commission in relation to these events. That request was declined by InfraBuild. Mr Hall’s representative also sought without success to obtain information about the identity of the InfraBuild forklift driver and despatch operator, so that an application could be made for an order requiring them to give evidence in the proceedings. As a result, no evidence was given in these proceedings by any employee of InfraBuild. In the circumstances, I do not consider that the InfraBuild forklift driver or despatch officer were in the ‘camp’ of either Mr Hall or PN, nor could it be expected that those potential witnesses would be available to, or called by, 15 Court Book at p 500 -- 12 of 31 -- [2022] FWC 94 13 one party rather than the other. The failure to call either potential witness is explained by reason of the unsuccessful attempts by both PN and Mr Hall to have them give evidence in the proceedings. In those circumstances, a Jones v Dunkel inference is not available and, in any event, I would decline to exercise my discretion to draw an inference in connection with the fact that neither the InfraBuild forklift driver nor the despatch officer were called to give evidence in the proceedings.16 [42] The absence of any such evidence means that the content of the business record set out in paragraph [40] above remains untested. This reduces the weight that I am prepared to give the content of the business record, which is hearsay. [43] It should have been obvious to the employees of InfraBuild working in the wire yard on 13 May 2021, that PN had not finished its shunting operations at the time it changed the light from green to red. That is so for the following reasons. First, InfraBuild requested the shunt. The whole purpose of the shunt was to take out the full wagons from the wire yard and replace them with empty wagons so that InfraBuild employees could load the empty wagons with wire product. Secondly, at the time the InfraBuild employees changed the light from green to red, the full wagons had been removed from the wire yard but the empty wagons had not yet been brought in. Thirdly, the ute Mr Hall was driving had been taken towards the back part of the wire yard but it had not been taken out of the area at the time the light was changed from green to red. The ute had its headlights on and a flashing light on the top of its cab. Further, the InfraBuild employees should not have changed the light from green to red without first communicating with Mr Hall, in accordance with the standard practice, that they were intending to do so. [44] I accept Mr Hall’s unchallenged evidence that he always communicates with InfraBuild employees when he has left the wire yard and finished operations. [45] Later on 13 May 2021, at about 18:07, Mr Hall reported to Mr Zsiros that InfraBuild had changed the light from green to red without his knowledge while he was shunting in the wire yard. Mr Hall made that report because he wanted InfraBuild to know that they should not be changing the light to red without informing PN before they do so.17 [46] Mr Zsiros did not initially take any steps to investigate the incident after it was reported to him by Mr Hall. That was because Mr Zsiros considered that the information disclosed to him by Mr Hall did not warrant any further action. However, Mr Hall did not tell Mr Zsiros about his interaction with the forklift driver in the wire yard. Mr Zsiros only became aware of that issue when Mr Curtis brought it to his attention and he watched the CCTV footage.18 [47] Mr Hall gave the following unchallenged evidence, which I accept, about his exchange with the InfraBuild despatch officer on the following day, 14 May 2021:19 16 Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at [97]-[99] 17 Ex A1 at [59] 18 PN528 19 Ex A1 at [60] -- 13 of 31 -- [2022] FWC 94 14 “I did an identical shunt the following night, on Friday 14th of May 2021 and at 1708hrs I called Despatch asking for the “Green Light” for a shunt. I asked him not to take it off me before I finished and assured him I would call him when I’m finished to let him know, like I always do. The despatch operator laughed and said “sorry about that, bit of miscommunication”. I completed the shunt and called him back at 1739hrs to inform him I was clear for the night, he apologised again.” Consideration of re-entry of ute and wagons into wire yard in alleged breach of red light rule [48] The InfraBuild Shunting Procedure does not define or explain what is meant by the entry to 264 road or where the wire yard starts and finishes. Further, as at 13 May 2021, there were no markings on the site to indicate the entrance to 264 road or the boundary to the wire yard. This lack of clarity gives rise to real ambiguity in the interpretation of the Wire Yard Procedure. [49] There is no dispute that 264 road is a set of rail tracks that lead into the wire yard. Parallel to 264 road is 263 road, being another set of rail tracks that lead into the wire yard.20 However, 263 road has not been operational for at least 10 years and was not operational on 13 May 2021. Mr Zsiros gave evidence that 264 road commences at C9. Mr Curtis and Mr Clifton gave evidence that 264 road commences at C6. Mr Hall gave evidence that the entrance to 264 road is at C3.21 Having inspected the site, I consider the better view to be that the entrance to 264 road is at C5. I have reached this view for three reasons. First, C5 is where the setting of the rail points determines whether rail wagons go into the wire yard (which must be on 264 road, given that 263 road has not been operational for at least a decade) or away from the wire yard (on 260 road). In this sense, C5 is the entrance to road 264. Secondly, the location of the No Entry Sign is close to C5. The No Entry Sign instructs PN employees to “stop” and not enter “beyond this point on any rail line until green light” [emphasis added]. When these terms of the No Entry Sign are read in context with subclause 6.2 of the InfraBuild Shunting Procedure, which requires PN employees to “call wire yard for a green light to enter 264 road”, this strongly suggests that C5 is the entry to 264 road. Thirdly, subclause 6.1 of the InfraBuild Shunting Procedure requires a PN employee to “check all points to enter and exit yard”. The primary points that a PN employee needs to check are at C5, because they determine whether the wagons will go in towards the wire mill on road 264 or away from the mill on road 260. Accordingly, I consider that the reference in subclause 6.1 to “check all points” is mainly a reference to the points at C5. This adds weight to the entrance to road 264 also being at C5. [50] I do not accept Mr Hall’s evidence that the entry to 264 road is a C3. It is clear from the diagram which is exhibit A2 that roads 260, 263 and 264 all join together well before C3 is reached. It is therefore difficult to say that C3 is the start of road 264 when the road also separates into 260 road at C5. Further, the diagram which is exhibit A2 shows C3 sitting on the same rail tracks as 263 road, not road 264. Additionally, C3 is a considerable distance before the No Entry Sign. Given that the No Entry Sign and clause 6 of the InfraBuild Shunting Procedure both deal with the requirement to stop and obtain a green light, it would be unusual if the location at which clause 6 of the InfraBuild Shunting Procedure required green light approval (the entrance to 264 road) was in a different location to the No Entry Sign. 20 Ex A2 21 Ex A2 -- 14 of 31 -- [2022] FWC 94 15 [51] I do not accept Mr Curtis’s or Mr Clifton’s evidence that the entry to 264 road is at C6. Because road 263 has not been operational for at least 10 years, the points at C6 are always set to direct wagons down road 264. It is therefore, somewhat artificial to describe C6 as the entrance to road 264. In addition, the No Entry Sign, which requires an employee to stop and obtain green light approval to go beyond that point, is some distance behind C6 (away from the direction of the wire mill). I do not accept Mr Zsiros’ evidence that the entry to 264 road is at C9. That point is even further away from the No Entry Sign than C6, and is well after a wagon is set on an inexorable path down 264 road. [52] Mr Curtis gave evidence that the No Entry Sign is on the boundary of the wire yard. I agree. The No Entry Sign says “Rod Mill Coil Storage & Loading Area Stop No Entry …” Mr Curtis also gave evidence that “Rod Mill Coil Storage & Loading Area” is another way of saying “wire yard”. [53] Mr Curtis gave evidence that C5 is also on the boundary of the wire yard. I am not persuaded that this is correct. As I have described above, the No Entry Sign is located to the side of and about half a metre back away (in the opposite direction to the mill where the wire is produced) from a set of rail points known as C5. In order to read the No Entry Sign, it is necessary to stand in front of it. From this point, it is clear that the No Entry Sign is located behind (in the opposite direction to the mill where the wire is produced) the C5 points. In other words, I consider that C5 is within the wire yard and not on the boundary to it. [54] Apart from describing where he believed the boundary to the wire yard was at the position of the No Entry Sign and C5, Mr Curtis was not able to explain with any clarity where else the boundary to the wire yard was located. Save for it being clear enough that the No Entry Sign is on the boundary to the wire yard, I agree with Mr Hall’s evidence that the wire yard is a “fuzzy” concept without any clear boundary.22 [55] PN argues that Mr Hall breached the InfraBuild Shunting Procedure by (a) giving instructions for the empty rail wagons to be shunted into the wire yard and (b) driving his PN ute into the wire yard when the light was red. PN points to subclauses 6.2 and 6.5 of the InfraBuild Shunting Procedure, which require an operator in Mr Hall’s position to “call Wire Yard for a GREEN light to enter 264 road” and “enter 264 road on a GREEN light and shunt as required”. [56] There is no dispute that Mr Hall obtained authority from InfraBuild to enter the wire yard before doing so on 13 May 2021. The authority was confirmed by the InfraBuild operator changing the light from red to green. When Mr Hall entered the wire yard in his PN ute at the commencement of the shunting process, the light was green. It was also green when he gave instructions for the locomotive, which, at that time, was attached to the empty rail wagons, to “enter 264 road” so that the empty rail wagons could be attached to the full rail wagons in order for the full rail wagons to be pulled out of the wire yard. Mr Hall also complied with clause 6 of the InfraBuild Shunting Procedure by removing the scotch block and the sandwich board before giving instructions for any rail wagons to be taken into the wire yard. 22 PN250 -- 15 of 31 -- [2022] FWC 94 16 [57] The issue giving rise to the dispute between the parties is that the light was red when Mr Hall, later in the shunting process, (a) directed the locomotive driver to push the empty rail wagons into the wire yard and (b) he drove his ute further into the wire yard to complete the shunting process. [58] I am satisfied that Mr Hall could not have reasonably expected that InfraBuild would change the light from green to red when they did so on 13 May 2021 without first telling him that they intended to change the colour of the light. That is because there were three circumstances in which the light could reasonably be changed from green to red. First, if Mr Hall had finished shunting in the wire yard and called InfraBuild to inform them that he was clear and they could reset the light to red, as required by subclause 6.7 of the InfraBuild Shunting Procedure. Secondly, if InfraBuild complied with the practice of notifying the PN operator (Mr Hall in this case) that they needed to change the light for a particular operational reason. Thirdly, if PN had completed the shunting exercise and had left the area without complying with subclause 6.7 of the InfraBuild Shunting Procedure. None of those things had happened on 13 May 2021 when InfraBuild changed the light from green to red. Mr Hall had not finished shunting and had not called InfraBuild to let them know that he was clear and they could reset the light to red. InfraBuild did not comply with the practice and notify Mr Hall that they were going to reset the light to red. InfraBuild could not reasonably have understood that PN had finished the shunting task. PN had not yet brought empty wagons into the wire yard, with the result that InfraBuild did not have empty rail wagons into which they could load wire product. Further, Mr Hall’s PN ute was still within the area and it had its flashing light operating on the cab of the ute. [59] The effect of PN’s argument is that subclauses 6.2 and 6.5 of the InfraBuild Shunting Procedure require a PN operator to check for and have a green light each time they “enter 264 road” notwithstanding how many times this happens during a shunting exercise. I do not agree that this was required by clause 6 of the InfraBuild Shunting Procedure, in the form that this clause was in on 13 May 2021. The InfraBuild Shunting Procedure must be read and interpreted as a whole; it cannot be construed by examining isolated words within the procedure. Clause 1 of the InfraBuild Shunting Procedure states that its purpose is to “ensure that all personnel are aware of the procedures to be followed for shunting the various locations of the Infrabuild site”. Clause 2 provides that the “procedure covers the processes entering and exiting the InfraBuild sites, by train for shunting purposes to place and retrieve wagons, general access requirements and contact information”. When clause 6 of the InfraBuild Shunting Procedure is read as a whole and in context with the rest of the procedure, it is clear that the requirement to obtain a green light, remove the sandwich board and scotch block apply at the commencement of the shunting process, before any wagons are moved into the wire yard. Once those steps are undertaken, the PN operator will, according to subclause 6.5, “shunt as required”. Clause 6 of the InfraBuild Shunting Procedure does not specify each part of the shunting process, after entry into the wire yard on “264 road” following a green light and before the operator is clear of the wire yard and has replaced the scotch block and sandwich board (subclause 6.6). The procedure within clause 6 only envisages the light being turned back to red once the operator is clear of the wire yard and the operator has called the wire yard to inform them that they can reset the light to red. This happens when the shunting exercise is complete. Clause 6 of the Wire Yard Procedure does not call for or require an operator to constantly or regularly monitor the light in case it is turned to red without notice, nor does it, read as a whole, contemplate authorisation and green light approval every time the C5 points are passed and there is entry onto “264 road” -- 16 of 31 -- [2022] FWC 94 17 during a shunting exercise. The interpretation of clause 6 of the InfraBuild Shunting Procedure that I prefer is consistent with the large No Entry Sign, which instructs an operator to “STOP no entry beyond this point on any rail line until GREEN LIGHT at mill coil unloader is given”. Mr Hall complied with this sign when he entered the wire yard at the commencement of the shunting exercise on 13 May 2021. He did not go out beyond this sign when he was shunting full rail wagons out of the wire yard and empty rail wagons into the wire yard on 13 May 2021. There was no reason for him to need to do so. I accept that Mr Hall could see the last wheels of the wagon as they passed C5 from where he was standing just inside the wire yard. Accordingly, there was no reason for Mr Hall to stop during the shunting exercise to check that the light was green. The light was green before he entered the area and he was entitled, according to the InfraBuild Shunting Procedure, to expect that it would remain so until he gave the ‘all clear’ and instructed InfraBuild to reset the light to red or InfraBuild complied with the practice and informed him that it intended to change the light to red. [60] Although I have gone to some lengths above to explain why I consider the entry to 264 road to be at C5 rather than C6 or C9, as contended for by PN, the outcome of this issue does not have any bearing on whether Mr Hall breached clause 6 of the InfraBuild Shunting Procedure. That is because, regardless of whether the entry to 264 road is at C5, C6, or C9, the wheels of the last empty wagon went beyond the C5 points before Mr Hall instructed the locomotive driver to push the empty wagons onto and down 264 road so they could be loaded with wire product and drove his ute further into the wire yard to complete the shunting exercise. At the times those events took place the light was red. Accordingly, Mr Hall entered 264 road on a red light part way through the shunting exercise. However, as I have sought to explain above, at the time of the incident (13 May 2021) the InfraBuild Shunting Procedure did not require Mr Hall to obtain a green light each time that he entered 264 road during a shunting exercise. Clause 6 required Mr Hall to obtain such approval before he entered 264 road at the commencement of the shunt. Mr Hall obtained such approval and had a green light to proceed. Clause 6 then required Mr Hall to “shunt as required” and the only circumstance in which clause 6 contemplated the light turning back to red was when Mr Hall was clear of the wire yard and he called InfraBuild to inform them that they could reset the light to red (subclause 6.7). Mr Hall did not provide such an instruction to InfraBuild before they turned the light to red, nor did InfraBuild comply with the practice and inform Mr Hall that they intended to change the light to red. To put it another way, the procedure contemplated by clause 6 was one whereby once Mr Hall had authority to enter the wire yard to undertake a shunt, that authority endured until he had finished the shunt and provided the appropriate instruction to InfraBuild or InfraBuild complied with the practice and informed Mr Hall that they needed to turn the light back to red or it was clear that Mr Hall had completed his shunting activities and left the area. The location and terms of the large No Entry Sign provide strong support for this interpretation of clause 6 of the InfraBuild Shunting Procedure. At no time between the commencement and end of the shunting procedure on 13 May 2021 did Mr Hall go back beyond the location of the No Entry Sign. [61] Clause 6 of the InfraBuild Shunting Procedure has been amended as a result of the incident on 13 May 2021. The new procedure within clause 6 is as follows: “6.1 Park vehicle in approved location 6.2 Call Wire Yard and advise dispatch of shunt requirements and gain authority to enter site 4935 4767 or 0417 481 125. -- 17 of 31 -- [2022] FWC 94 18 6.3 Once approval granted shunters will receive a GREEN light to enter site and place 264 road. 6.4 Check all points to enter and exit yard 6.5 Remove SB-2 and sandwich board. 6.6 Protect all road crossings. 6.7 Enter 264 road with rail traffic on a GREEN light. When proceeding rail traffic on 264 road remain on the southside of the road and remain vigilant of vehicles operating in the area. 6.8 If an index shunt is required before re-entering site, contact dispatch 4935 4767 or 0417 481 125 and request access 6.9 Enter 264 road with rail traffic on a GREEN light. 6.10 Place rail traffic in designated locations and secure rollingstock 6.11 When clear of Wire Yard, replace SB-2 and sandwich board. 6.12 Call wire yard and inform them you are clear and that they can reset the RED light.” [62] The steps covered by subclauses 6.8 and 6.9 of the revised procedure are new. Subclause 6.8 refers to an “index shunt”, which Mr Curtis explained is where loaded wagons are taken out of the wire yard and empty wagons are moved into the wire yard. Mr Hall undertook an “index shunt” at the wire yard on 13 May 2021. If the revised procedure had been in place on 13 May 2021, Mr Hall’s actions would have been in breach of it. But the revised procedure was not in place on 13 May 2021 and the version of the InfraBuild Shunting Procedure that was in place at that time did not require Mr Hall to “contact dispatch” or check for a green light when re- entering 264 road during a shunting exercise. [63] PN also contends that Mr Hall failed on 13 May 2021 to comply with his obligation under clause 3.5.2 of the General Shunting Procedure to “confirm the signal indications and network authorities, if applicable”. I reject this contention. Mr Hall obtained authority from the despatch officer at 17:17 to enter the wire yard and shunt. He confirmed the “signal indications and network authorities” by checking that he had a green light before entering the wire yard to commence shunting in the wire yard. The question of whether Mr Hall was required to “confirm the signal indications and network authorities” again during the shunting exercise was governed by the specific procedure set out in clause 6 of the InfraBuild Shunting Procedure. The General Shunting Procedure cannot be used to fill any gaps in the specific procedure set out in clause 6 of the InfraBuild Shunting Procedure. [64] For the reasons given, I do not accept that Mr Hall breached clause 6 of the InfraBuild Shunting Procedure or clause 3.5.2 of the General Shunting Procedure on 13 May 2021. It follows that his actions in connection with the red light issue on 13 May 2021 did not constitute a breach of clause 1 or 13 of the Code, which require him to perform work in a safe manner and comply with relevant policies, procedures and standards. Consideration of driving and parking ute in wire yard while the forklift was operating [65] I have viewed the CCTV footage of Mr Hall driving his PN ute into the wire yard and parking it in the gap between 263 road and 264 road. An InfraBuild operator was driving a 16 tonne forklift in the wire yard at the same time. The forklift was being used to load wire coil -- 18 of 31 -- [2022] FWC 94 19 onto a truck. Mr Hall could clearly see the forklift when he drove into the wire yard and parked the ute. [66] I accept Mr Hall’s evidence that it was normal for forklifts to continue loading wire coils onto trucks under a green light while a PN employee was located near the 264 road.23 [67] Mr Hall accepts that he did not have any eye contact with the forklift driver before he drove his ute into the wire yard and parked it. The first time that Mr Hall had eye contact with the driver of the forklift was when Mr Hall’s ute was stationary.24 [68] It is apparent from the CCTV footage that in the period of about 14 minutes prior to the alleged near miss the forklift was driven in a range of areas around the wire yard, picking up wire coils from the wire mill and transporting them to various locations in the wire yard but mostly to a waiting truck. It is also apparent from the CCTV footage that the locations where the forklift was driven during that time included, or were close to, the path on which Mr Hall drove the ute when he drove it in to the top of the wire yard near the wire mill and parked it between road 263 and road 264. PN did not have a policy or practice which prohibited Mr Hall from driving the ute into that part of the wire yard. Mr Hall was, however, required by his training and knowledge of PN’s site rules to make eye contact with a forklift driver before interacting with the forklift. The obvious purpose in imposing such a requirement is to ensure that the driver of the forklift is aware of the existence and location of the other person or vehicle. There could be some debate about what is meant by “interacting” within the meaning of this site rule in particular circumstances. However, I am satisfied that a ute interacts with a forklift when the ute is driven into and parked in an area in which the forklift is operating at the same time. This is precisely what happened when Mr Hall drove his ute in to the top of the wire yard near the wire mill and parked it between road 263 and road 264. [69] Because Mr Hall did not have any eye contact with the forklift driver before he drove his ute into the wire yard and parked it, I am satisfied that he failed to comply with his obligation to make eye contact when interacting with a forklift. Not only was this a breach of the site rules, but it gave rise to a dangerous situation because it resulted in a 16 tonne forklift operating in an area where the forklift driver was not aware that Mr Hall had entered and parked his ute. Consideration re failure to report alleged near miss [70] The CCTV footage shows that the forklift reversed back from the truck it was loading and turned in a tight arc towards Mr Hall’s ute. It is not possible to determine from the CCTV footage how close the forklift gets to Mr Hall’s ute. Mr Hall estimates that the closest distance between the two vehicles was about 4m-5m. I accept that evidence. It is consistent with the CCTV footage, albeit the footage alone does not permit the viewer to determine how far apart the vehicles were from one another. The CCTV footage shows the forklift driver stopping for a few seconds near Mr Hall’s ute and then moving further away and stopping again. [71] There is no doubt that there was no injury or damage to any person or property on 13 May 2021. Nor is there any doubt that there was the potential for serious injury or damage to 23 Ex A1 at [51] & [62] 24 PN446 -- 19 of 31 -- [2022] FWC 94 20 occur if the 16 tonne forklift collided with Mr Hall or the ute he was driving. The issue is whether there was “an unplanned event that … had the potential to” cause injury or damage. [72] PN contends that the CCTV footage shows the forklift swerving at the last moment, on account of the driver’s unawareness of the presence of the PN ute in the vicinity. In support of this contention PN relies on a near miss report provided to PN by InfraBuild (Near Miss Report). The Near Miss Report includes the following information: “Near Miss … Event Type Event Outcome Safety (SAFETY) Near Miss (NM) … Event Date Event Time 13/05/2021 17:52 Event Title Near collision forklift and ute in the Rod yard. Long Description (Summary/Description) A 16-tonne forklift driven by a Rod Mill Operator was loading coils from the Unloader to a parked lorry in Yard 3 West. The Pacific National Shunter drove his ute in behind the forklift and parked at the Western-end of rail line 263. The Rod Mill forklift driver was unaware of the presence of the ute and reversed away from the lorry, narrowly missing the ute. … Immediate Actions Taken The Rod Mill Operator spoke with the Shunter and both resumed their tasks with understanding of each others location. The incident was not initially reported as a Near Miss by the Infrabuild employees and was raised via Pacific National. Reported Date Reported Time 17/05/2021 11:24 … Risk Classification No Impact (RO)…” [73] In the absence of any evidence from the InfraBuild forklift operator, it is not possible to know with any degree of certainty why he did not initially report the incident as a near miss and why he did report it some four days after the event. The Near Miss Report suggests that the incident was “raised via Pacific National”. Mr Curtis gave evidence, which I accept, that initially PN asked InfraBuild why they changed the light from green to red and InfraBuild then came back to PN with an allegation of breach of procedure.25 Mr Hall’s theory is that the InfraBuild forklift operator may have reported the incident as a near miss after PN raised an 25 Court Book at p 506 -- 20 of 31 -- [2022] FWC 94 21 issue about the light being changed from green to red without PN’s knowledge and the forklift operator wanted to “save his job”. I am not prepared to make any such finding in the absence of evidence from the InfraBuild forklift operator. However, I do reduce the weight that may otherwise have been given to the content of the Near Miss Report on account of the hearsay nature of the evidence, the fact that the author of the report has not been made available for cross examination about it, and there is an unexplained gap of four days from the time of the incident to the making of the Near Miss Report. [74] PN also relies on the email from InfraBuild to PN on 19 May 2021, stating that the forklift driver “narrowly missed it [Mr Hall’s ute] while reversing away from the lorry”.26 [75] It is clear from the CCTV footage that the forklift driver does turn quite sharply when he is reversing away from the truck he is loading. I accept Mr Hall’s evidence, as an experienced forklift driver, that forklifts can turn sharply as part of their normal operation, a forklift driver will look in the direction in which the forklift is travelling (including looking over his or her shoulder when reversing), forklifts have good visibility toward their rear, and the main blind spots in a forklift are in front of the forklift (where the tines are located). I am satisfied on the basis of Mr Curtis’s evidence that the forklifts used by InfraBuild in the wire yard do not have swivel seats, with the result that a forklift driver must look over their shoulder while they are reversing the forklift. Further, I accept Mr Hall’s evidence that the forklift driver pointed up to the red light when Mr Hall made eye contact with him at the point in time that both vehicles were stationary. This is consistent with Mr Hall’s theory that the forklift driver acted deliberately when he reversed the forklift in fairly close proximity to Mr Hall’s ute, for the purpose of communicating with Mr Hall about the light being red. This theory is also supported by the fact that neither Mr Hall nor the InfraBuild forklift driver reported the incident as a near miss at the time it happened. InfraBuild only raised the near miss allegation after PN had communicated its concern to InfraBuild about the light being changed to red without prior notice to PN. Mr Hall gave evidence that he did not consider the incident a near miss. I give some weight to Mr Hall’s evidence in this regard. [76] The statement in the email from InfraBuild to PN on 19 May 2021 to the effect that the forklift driver “narrowly missed it [Mr Hall’s ute] while reversing away from the lorry”27 is plainly hearsay. I have given this business record a reduced amount of weight in light of its hearsay and untested nature, but it deserves some weight in my assessment of all the circumstances. The evidence is consistent with the sharp turn undertaken by the forklift driver as he reverses near Mr Hall’s ute, as is evident from the CCTV footage. The forklift does not turn so sharply at other times during its operation in the period covered by the CCTV footage. I also give some weight to the evidence given by each of Mr Zsiros, Mr Clifton and Mr Curtis, all of whom have experience in the rail industry, that they viewed the CCTV footage and considered the incident at near miss. Mr Curtis’s evidence in this regard was as follows:28 “While the forklift is reversing, the CCTV footage shows that it appears to almost collide with Mr Hall’s vehicle. It is apparent to me, from many years of working in this industry, that the forklift being driven would not have moved so quickly or closely to 26 Court Book at p 500 27 Court Book at p 500 28 Ex R5 at [41] -- 21 of 31 -- [2022] FWC 94 22 Mr Hall’s vehicle had the driver known that Mr Hall’s vehicle was located where it was.” [77] I am satisfied on the evidence that the forklift driver was not aware that Mr Hall had driven his ute into the top part of the wire yard. The content of the both the Near Miss Report and the email from InfraBuild to PN on 19 May 20201 support this finding. So too does the fact that I am satisfied on the basis of the CCTV evidence that the InfraBuild forklift driver contacted the InfraBuild despatch officer after eye contact had been made between the forklift driver and Mr Hall in the wire yard, to instruct the despatch officer to turn the light from red to green. If the forklift driver had been aware of Mr Hall’s presence in the area at an earlier time, I am satisfied that the forklift driver would have contacted the despatch officer at an earlier time to have the light turned back to green. [78] I am satisfied that the forklift driver saw Mr Hall’s ute at some point while he was reversing towards it. That is likely because the forklift driver would most likely have been looking over his shoulder while he was reversing and he stopped about 4m-5m before colliding with Mr Hall’s ute, which had a flashing light operating on the roof of the cab. The issue is whether the forklift driver planned to turn so close to Mr Hall’s ute in order to communicate with him about the red light, as Mr Hall contends, or the forklift driver only saw the ute late into his turn and he turned sharply and stopped to avoid a collision. Having regard to all the circumstances, I find, on the balance of probabilities, that the InfraBuild forklift driver did not plan to drive so close to Mr Hall’s ute. The sharpness of the turn, compared to other operational turns taken by the driver and evidenced in the CCTV footage, suggests evasive action on the part of the forklift driver. I also do not consider it likely that the forklift driver would drive so close to Mr Hall’s ute just to communicate with him by hand signals about the fact that the light was red. The forklift driver could have communicated with Mr Hall using the same hand signals (pointing to the red light etc) from a distance further away than 4m-5m. I consider that the sharp reversing turn made by the forklift driver towards Mr Hall’s ute was “an unplanned event that did not result in injury, ill-health or damage to plant property or the environment but had the potential to do so”. In particular, the large 16 tonne forklift could have caused extensive damage to the ute or significant personal injury to Mr Hall if the forklift driver had continued to reverse a short distance further. It was therefore a “Near Miss” within the meaning of the PN policy and had to be reported to PN by Mr Hall. Consideration re failure to take responsibility for actions [79] At all times during the investigation Mr Hall maintained that on 13 May 2021 he behaved in a safe manner and consistently with PN’s policies and procedures. That was his response to the contention that he had not taken responsibility for the relevant conduct or accepted that he did not behave consistently with PN’s expectations. Conclusion re valid reason [80] I have found that Mr Hall did not breach any PN policy or procedure by continuing shunting and driving his ute in the wire yard while the light was red. Accordingly, Mr Hall’s conduct in this regard did not constitute a valid reason for his dismissal. -- 22 of 31 -- [2022] FWC 94 23 [81] I have found that Mr Hall did fail to comply with his obligation to report a ‘near miss’ and make eye contact before interacting with a forklift. I consider that these were serious safety breaches on Mr Hall’s part. They gave PN a sound, defensible and well-founded reason to terminate his employment. In addition, I consider that Mr Hall’s failure to accept that he did not behave consistently with PN’s expectations or take responsibility for his contravening conduct provides, or alternatively supports, a valid reason for the termination of his employment. [82] Accordingly, I am satisfied that PN had valid reasons to terminate Mr Hall’s employment. Notification of reason (s 387(b)) [83] Mr Hall was notified of the reasons for his dismissal in a ‘show cause’ letter and in the letter of termination. Opportunity to respond (s 387(c)) [84] During the investigation process Mr Hall was given opportunities to respond, and did in fact respond, to the reasons for his dismissal. In particular: (a) Mr Hall was spoken to about the incident on 17 May 2021 and provided his version of events to PN in an email dated 17 May 2021; (b) On 17 June 2021, Mr Hall was with provided with a letter of allegations which identified the allegations made against him (including details of the policies and procedures allegedly breached by Mr Hall) and invited him to respond. On 12 July 2021, Mr Hall provided his response to the allegations; and (c) On 4 August 2021, Mr Hall was notified of the findings made by PN and issued with a ‘show cause’ letter indicating that PN was considering terminating his employment. On 12 August 2021, Mr Hall provided his response to the ‘show cause’ letter. [85] In addition, Mr Hall was given access to all the CCTV footage that PN had and was given an opportunity to review it before any decision was made by PN terminate his employment. Mr Hall was not prohibited by PN from speaking to any potential witnesses, including employees of InfraBuild. PN did not have any witness statements from the InfraBuild forklift driver or despatch officer to give to Mr Hall. [86] Having regard to all the circumstances, I am satisfied that Mr Hall was given an opportunity to respond to the reasons for dismissal which related to his conduct. Unreasonable refusal to allow a support person (s 387(d)) [87] Mr Hall had a support person with him throughout the investigative process. Accordingly, I am satisfied that there was not any unreasonable refusal by PN to allow Mr Hall to have a support person present to assist in any discussions relating to his dismissal. -- 23 of 31 -- [2022] FWC 94 24 Warnings of unsatisfactory performance (s 387(e)) [88] Mr Hall was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case. Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g)) [89] PN is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of PN’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Hall’s dismissal. Other relevant matters [90] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. [91] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:29 “[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”. [42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories: (1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred. 29 [2013] FWCFB 6191 -- 24 of 31 -- [2022] FWC 94 25 (2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.] (3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.] [43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”. ... [47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460): “Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.” [48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non- compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].” [92] The first relevant matter is Mr Hall’s safety record over the course of his employment with PN. On 16 April 2021, Mr Hall received a final written warning for failing to operate a motor vehicle in a safe manner. This was the only safety incident on Mr Hall’s ‘record’ prior to his dismissal. The warning letter issued on 16 April 2021 related to an incident which took place on 30 January 2021. On that day, Mr Hall was driving a PN ute at the Morandoo depot and lost control of the vehicle, resulting in the vehicle rolling and coming to a stand on its roof. The airbags did not deploy. It is unknown why the airbags did not work. Fortunately, Mr Hall did not sustain any injuries in the accident. PN conducted an investigation and concluded that Mr Hall had been speeding immediately prior to the accident, reaching a top speed of 104.4km/hour in a 50km/hour speed zone, and excessive speed/reckless driving was the root cause of the accident. Mr Hall did not challenge the final written warning when it was issued to him in April 2021. However, in these proceedings Mr Hall contends that he was not speeding or driving recklessly. He contends that the lights in the ute went out unexpectedly, with the -- 25 of 31 -- [2022] FWC 94 26 result that he could not see because there were no street lights, and he hit the ballast on the side of the road before rolling the vehicle. Ballast is a type of rock that is placed near a railway track to support it. There is ballast around the railway track which runs along side the road on which the accident occurred. [93] PN relies on GPS data from the vehicle involved in the accident to support its contention that Mr Hall was speeding seconds before the accident took place. Mr Hall contends that the GPS data is not reliable. He submits that PN has not proven the ‘chain of custody’ concerning the GPS and says that Mr Curtis manipulated the data when he used it to map out Mr Hall’s location and speed on an aerial map.30 [94] Mr Curtis gave evidence that he obtained the GPS data from the leasing company from which PN leased the ute in question. Mr Curtis explained that that a physical unit was attached to the ute and it transmitted the GPS data to the leasing company. Mr Curtis said that an employee from the leasing company emailed the GPS data to him in an excel spreadsheet. A copy of the spreadsheet containing the data was annexed to Mr Curtis’s first witness statement.31 Mr Curtis took the GPS data from the spreadsheet and entered it into a mapping program used by PN. In particular, Mr Curtis typed the GPS coordinates provided in the spreadsheet into the mapping program and the program automatically generated a tear drop to indicate the location of the vehicle on an aerial map of the area.32 Mr Curtis then used the program to draw a straight line to a text box, where he included information (from the GPS data) concerning the time the vehicle was at that location and the speed it was travelling. In the result, Mr Curtis used the mapping program to show where Mr Hall’s vehicle was at various points in time and the speed he was travelling at those points in time as he drove along the road in question. The map shows that Mr Hall’s vehicle came to a stop at a particular point. Mr Hall revisited the site after using the program to generate the map. He used a physical device at the location of the accident to measure the distance from that location to the end of the road. Mr Curtis was comforted by the fact that the distance he measured was the same as the distance shown on the map generated by computer program he was using (439m). [95] Mr Hall points to the fact that the red lines on Mr Curtis’s map show different speeds at almost the same location as the blue lines on the map. Mr Curtis explained that he used red lines to indicate the location and speed of a second vehicle which was on the road on the night in question. Mr Hall also points to the fact that a number of the blue lines generated on the map by Mr Curtis appear to point to about the same location on the map, yet the speeds vary from 52km/hour to 35km/hour. Mr Curtis explained that the data he obtained from the spreadsheet was very detailed and often included different speeds for parts of each second during which Mr Hall drove on the road. The data in the spreadsheet supports this evidence. It shows up to five different speeds for different periods in a one second interval. For example, the spreadsheet contains five sets of data, being the latitude and longitude coordinates, as well as the speed, for the time 1:54:27am.33 30 Court Book at p 650 31 Court Book at pp 549-551 32 Court Book at p 650 33 Court Book at p 549 -- 26 of 31 -- [2022] FWC 94 27 [96] Mr Hall gave evidence that it was common for GPS data on utes used by PN to be inaccurate and he reported those issues to PN supervisors.34 I do not accept that evidence. It was given by Mr Hall for the first time during cross examination. In my view, it is not credible for that matter not to be raised by Mr Hall at some earlier time, such as in his written response to the 30 January 2021 incident, in his witness statement in these proceedings, or in his oral evidence in chief, at which time he responded to the witness statements made by Mr Curtis in which Mr Curtis made extensive reference to the GPS data in connection with the 30 January 2021 incident. [97] I am satisfied, on the balance of probabilities, that the GPS data relied on by PN in relation to the ute Mr Hall was driving on the night of 30 January 2021 is accurate and reliable, for the following reasons: (a) as explained above, the fact that Mr Curtis was able to verify the distance between the point of the accident (according to the GPS coordinates in the data) and the end of the road with the physical measure he took of that distance provides some comfort that the data is accurate and reliable; (b) the GPS coordinates of the vehicle provided from the leasing company match up precisely with the location of the road on which Mr Hall was travelling, at the time he was travelling on that road, on the night of the accident; (c) the GPS data indicates that Mr Hall was travelling at 0km/hour at a point on the road where there is a stop sign. Mr Hall gave evidence that he stopped at that sign on the night of the accident; (d) the GPS data shows the vehicle speeding up on straight parts of the road and slowing down a bit on the bends. It is likely that any person driving on that road would travel faster on the straights than through the bends; (e) the GPS data shows the vehicle rapidly decelerating at the point it collided with the ballast on the side of the road and then flipped on to its roof; and (f) I consider that Mr Curtis gave credible evidence about the source of the data and what he did with the data to generate the reference points in the aerial map shown on page 650 of the Court Book. The evidence does not persuade me that the data was tampered with in any way or that it is unreliable by reason of any issue associated with the custody or control over the data once it was provided by the leasing company to Mr Curtis. Indeed, it was not put to Mr Curtis in cross examination that he tampered with the data. [98] I am prepared to accept Mr Hall’s evidence that the lights on the vehicle went out shortly before the accident and remained inoperable. PN does not challenge that evidence. PN tried without success to have the vehicle forensically examined when it was in the possession or control of the insurance company after the accident. There is no doubt that the lights going out contributed to the accident. However, the high speed at which the vehicle was travelling in the seconds before the accident must have been a significant contributing factor to the accident. For 34 PN881 & PN907-915 -- 27 of 31 -- [2022] FWC 94 28 example, the GPS data shows that the vehicle was travelling at 104km/hour about 10 seconds before the accident and 93km/hour about 7 seconds before the accident. Having been driven along the road on which the accident happened during the site inspection, I have no doubt that it would be unsafe to drive along that road at anywhere near 100km/hour during the day, let alone at night where no street or other lights illuminate the road. It is not a public road. On one side of the road, which is quite narrow, is a train line and on the other is a gully.35 The last speed sign on the road leading into the road in question is 50km/hour. Even if Mr Hall was under some doubt as to whether that speed limit applied on the road in question, he could not have been under any doubt that driving at anywhere near 100km/hour on the road would not be safe. [99] I do not accept Mr Hall’s criticism of the amount of time taken by Mr Curtis to examine the GPS data compared with the amount of time PN took to attempt to have the vehicle Mr Hall was driving on 30 January 2021 forensically examined. After the accident, the vehicle was taken out of PN’s possession. I accept that PN made reasonable efforts to have the vehicle forensically examined. But ultimately this issue does not go anywhere because PN has not contended that the lights did not go out. Its argument has always been that driving with excessive speed was inappropriate and unsafe conduct on Mr Hall’s part. That conclusion was open to PN regardless of whether or not the lights in the vehicle failed just before the accident. [100] The second relevant matter is the gravity of Mr Hall’s misconduct on 13 May 2021. There are mitigating factors. One mitigating factor is the fact that an InfraBuild employee turned the light to red without conforming with the usual practice and informing Mr Hall that he intended to do so. As I have found above, Mr Hall could not have reasonably anticipated that the InfraBuild employee would act in this way. The fact that Mr Hall reasonably believed that he had green light approval to move around the wire yard plainly had an impact on the way he conducted himself. However, even if Mr Hall in fact had a green light at the time he drove into the top part of the wire yard near the wire mill, he would have been required to make eye contact with the forklift driver before driving into and parking in the part of the wire yard where the forklift driver was operating. Another mitigating factor is my finding that Mr Hall did not breach any policy or procedure when he undertook shunting activities in the wire yard on a red light. If Mr Hall had breached the policies and procedure contended for by PN, his conduct on 13 May 2021 would no doubt have objectively been more serious. Notwithstanding these mitigating factors, I have no hesitation in concluding that Mr Hall’s conduct in not making eye contact with the forklift driver before entering the top part of the wire yard where the forklift was operating and not reporting a near miss was objectively serious. The forklift in question was a large 16 tonne industrial forklift. It was being used to transport large coils of wire around the wire yard. Visibility around parts of the forklift was limited. There is no doubt that if the forklift collided with Mr Hall or his ute, the outcome could well have been disastrous in terms of property damage and/or personal injury or death. PN operates in a safety critical industry and it is right to treat these matters seriously, particularly where the employee in question (Mr Hall) was involved in a serious safety incident earlier in the same year and had only been back at work for about 13 shifts before the incident on 13 May 2021. [101] Mr Hall points to the fact that although PN contends that his conduct was so manifestly inconsistent with its policies as to warrant his dismissal, the incident was not pursued by PN until 17 June 2021 by way of a formal investigation. Mr Hall continued to work his rostered 35 PN97 -- 28 of 31 -- [2022] FWC 94 29 shifts following the incident on 13 May 2021 for a period of two weeks. It was only on 27 May 2021 that PN advised Mr all that an investigation into the incident would be undertaken and that he would be suspended from duties. Mr Hall also points to the fact that PN did not issue its employees with a safety alert in response to the incident on 13 May 2021 until 15 September 2021, one week after Mr Hall commenced his unfair dismissal proceedings against PN. [102] Mr Curtis gave evidence, which I accept, that he and other supervisors spoke to PN’s employees in toolbox-type meetings from 13 May 2021 in relation to the incident on 13 May 2021 and the learnings to be taken from it. PN also revised its InfraBuild Shunting Procedure following the incident and issued a written safety alert to employees in September 2021. I consider these actions to accurately reflect the seriousness with which PN viewed the incident. [103] I do not accept the contention that PN delayed or was slow in commencing its investigation into the incident. Initially, based on what Mr Hall had told Mr Zsiros, PN believed that InfraBuild was in the wrong. It was only after InfraBuild raised the concern about the near miss on 25 May 2021 that PN had information to act upon.36 On 27 May 2021, Mr Curtis met with Mr Hall and informed him that he was stood down with pay while an investigation was undertaken into the events of 13 May 2021. PN then proceeded to conduct a detailed investigation into the incident. It gave Mr Hall multiple opportunities to respond to the allegations and make any comment he wanted to make in connection with the matter. [104] The third relevant matter is that the personal and economic consequences for Mr Hall of the dismissal have been significant. Mr Hall is about 45 years old. He has five children and significant financial commitments. He has only been able to obtain casual employment since his dismissal by PN. Mr Hall is earning significantly less in that employment than he did during his employment with PN. Mr Hall is likely to find it difficult to re-enter the rail industry. These personal and economic impacts must be weighed along with the seriousness of the incidents in question and other relevant considerations. [105] Fourthly, Mr Hall contends that PN failed to comply with its Incident Reporting and Investigation policy in connection with the incident on 30 January 2021. In particular, Mr Hall submits that PN contravened this policy by failing to:  properly investigate the cause of the electrical failure in the vehicle;  report the incident to SafeWork NSW;  contact medical or emergency support to provide first responder assessment and/or treatment to Mr Hall;  preserve the scene of the accident to all for a full investigation;  ensure the scene of an accident is not the subject of interference by the removal of evidence; and  contact the NSW Police to conduct a proper investigation of the accident. 36 Ex R5 at [47] -- 29 of 31 -- [2022] FWC 94 30 [106] I do not accept that these criticisms of PN have any material bearing on the fairness of the decision by PN to terminate Mr Hall’s employment as a consequence of his conduct on 13 May 2021, considered in light of the earlier safety incident on 30 January 2021. I am satisfied that PN conducted a reasonable and procedurally fair investigation into both the incident on 30 January 2021 and the incident on 13 May 2021. Clear allegations were put to Mr Hall in connection with each matter. Mr Hall was given access to relevant information. He had time to provide a considered response to each matter. Mr Hall had the benefit of a support person. PN considered the responses provided by Mr Hall to the allegations and made findings. The findings and the reasons for them were communicated to Mr Hall. He was then given a chance, after the 13 May 2021 incident, to ‘show cause’ as to why his employment should not be terminated. As to the particular allegations of breach of policy by PN, there was no need for PN to investigate the cause of the alleged electrical failure in the vehicle because PN did not contend that the lights did not fail; PN reported the incidents on 30 January 2021 and 13 May 2021 to the Office of the National Rail Safety Regulator as a part of a batch of reports; PN did not seek medical help or a medical assessment for Mr Hall after the accident on 30 January 2021 because Mr Hall maintained that he was not injured in any way;37 PN did not call the Police in connection with the incident on 30 January 2021 because it took place on a private road and it was not aware on the night of the incident that Mr Hall had been speeding or otherwise driving in a negligent manner; and the vehicle was towed away after the accident to a smash repairer - PN did not deliberately tamper with evidence or interfere with the scene of the accident. Conclusion [107] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that PN’s dismissal of Mr Hall was not harsh, unjust or unreasonable. PN had a valid reason for the dismissal and it afforded procedural fairness to Mr Hall prior to making a decision to bring his employment to an end. Its decision in that regard was informed, in part, by reason of Mr Hall being on a final written warning for a safety related breach in connection with an incident in January 2021. The safety critical nature of PN’s business operations in the rail sector obviously had an impact on the judgment call it made in deciding to terminate Mr Hall’s employment. Having had the benefit of viewing the site in question and hearing considerable evidence from relevant witnesses, I am satisfied that PN’s dismissal of Mr Hall was not harsh, unjust or unreasonable. The application is dismissed. DEPUTY PRESIDENT Appearances: 37 PN103-105 -- 30 of 31 -- [2022] FWC 94 31 Mr J Hart, Industrial Officer of the RTBU, for the Applicant Mr L Izzo, solicitor, for the Respondent Hearing details: 2021. Newcastle: December 9, 10, 14 and 15., Printed by authority of the Commonwealth Government Printer <PR737610> -- 31 of 31 --