Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (for Schloss) v Mount Isa Mines Limited [2003] QIRC 219 (2003) 174 QGIG 1349

12 December , 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1349 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (for Larry Schloss) AND Mount Isa Mines Limited (No. B886 of 2003) DEPUTY PRESIDENT BLOOMFIELD 27 November 2003 Application for reinstatement – Collision between vehicles – Investigation – Prior safety incidents – Whether respondent entitled to take these into account – Whether a denial of natural justice – Applicant found to have been driving in a negligent fashion – Termination not harsh, unjust or unreasonable – Application dismissed. DECISION Introduction Mr Larry Schloss seeks reinstatement to his position as Operator/Driver in the Mobile Fleet Workshop at Mount Isa Mines Limited (MIM). Mr Schloss had been employed in this role from October 1994 until the termination of his employment on 8 May 2003, following an incident in a Kress Hauler in the Copper Smelter area early in the morning on 27 April 2003. The incident in the Kress Hauler A Kress Hauler is a modified scrapper which has been adapted to carry a slag pot. Its function is to cart slag pots – containing approximately 47 tonnes of molten slag - from the copper smelters at MIM to cooling dams. The slag is usually between 1100 and 1200 degrees celsius. The Kress Hauler has a rotatable seat which enables the operator to operate the unit from either the forward or the reverse seat position. All the levers relating to picking up, securing and tipping slag pots are on the rear dash of the Kress Hauler. Because of this operators must be in the “reverse” position to carry out these tasks. Mr Schloss started his shift at 5.30 p.m. on 26 April 2003. His task for the shift was to remove slag pots from the Rotary Holding Furnace (RHF) and Copper Smelter Aisle (CSA) with the Kress Hauler and to dump the slag in a cooling dam, located about one kilometre away. He was also expected to use his initiative to use a dozer to rip the slag dams during the shift. Mr Schloss performed this task when he was not required to collect and carry slag pots. Somewhere around 2.30 a.m. Mr Schloss returned to the Copper Smelter area after dumping slag. He parked the Kress Hauler and alighted the vehicle to relieve himself against a nearby concrete wall in the pot lay-down area. The pot lay-down area is used to store empty slag pots, as well as full slag pots while the Kress Hauler operator takes an empty slag pot into the RHF or CSA. When a new “empty” slag pot is placed into the RHF or CSA the operator returns in an empty Kress Hauler, collects the full slag pot and carries it to the cooling dams for dumping. After this, the process is repeated with the operator returning the now empty slag pot to the pot lay-down area before readying himself to collect the next full slag pot. After returning to the cabin of the Kress Hauler, Mr Schloss noted that the signal light above the RHF and Converter entrance was green. This signalled to him that another slag pot was full and ready for collection. Sitting in the reverse position Mr Schloss manoeuvred the Kress Hauler away from the pot lay-down area towards the RHF slag bay. This meant he was facing the way he was travelling. Once he had travelled approximately 20 metres towards the RHF and Converter entrance he manoeuvred the Kress Hauler slightly to the left to line it up with 2 concrete walls (a further 20 metres away) that had to be travelled down to get to the full slag pot. The Kress Hauler itself is approximately 6 metres wide and there is approximately 0.3 metres clearance between each side of the Kress Hauler and the concrete walls. Once in position Mr Schloss secured the slag pot. Mr Schloss claimed that before he began to “reverse” out of the slag pot bay with the full slag pot he looked to the right-hand side of the cabin to a special reversing mirror fitted to the side of the Kress Hauler. As he did so he looked towards the No. 4 Converter to check if there was any personnel in the vicinity before moving out of the slag pot bay. Sitting in the reverse position (i.e. which involved him “backing” the Kress Hauler out of the slag pot bay) he claimed he looked into the reversing mirror to check his initial exit path to ensure it was clear. Once he established the route was clear he started to manoeuvre the Kress Hauler away from the RHF slag pot bay. -- 1 of 6 -- 1350 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 December , 2003 Mr Schloss claimed once he started to move off he looked towards the rear of the Kress Hauler (his front) to make sure he did not get caught on the walls. While driving out, but still sitting in the “reverse” position, he alleged he kept an eye on both rear walls, rear tyres and behind the No. 4 Converter (to ensure there was no-one walking around). Mr Schloss says he continually checked these areas by moving his head back and forth. He also claimed he watched the reversing mirror on his right-hand side, to keep an eye on the concrete wall on the opposite side of the RHF slag pot bay (some 25 to 30 metres behind him) to ensure his path was clear. Mr Schloss said he always used this wall as a guide to change direction (i.e. a slight left-hand turn as he was reversing out [although the Kress Hauler was actually moving forward]) to head back out to the pot lay-down area. Mr Schloss said as he was moving the Kress Hauler forward, whilst still sitting in the reverse position with his back to the direction of travel, towards the wall and just before he was to make the slight left-hand turn, he collided with a water truck. Mr Schloss claimed that at the time of impact with the water truck he was checking the path towards the concrete wall which he used to judge the point at which he should make his slight left-hand turn. The Kress Hauler collided into the rear right-hand side of the water truck. This was to Mr Schloss’ left rear side whilst he was still in the “reverse” position. The Kress Hauler was extensively damaged on its front left-hand side as one faces the vehicle (photos of the damage were tendered into evidence) and cost some $46,000 to repair. Mr Schloss claimed that at all times while he was heading out of the slag pot bay he was continually checking the rear walls, rear tyres, behind No. 4 Converter and the concrete wall to ensure that he did not hit the wall, spill the pot, or damage the Kress Hauler, and to ensure that his path was clear. He said he was satisfied that he was checking all areas for possible obstacles or problems while moving the Kress Hauler off and was satisfied that his path was clear. The collision came as a complete surprise. After he collided with the water truck, Mr Schloss reached for the two-way radio to call his shift boss to let him know about the accident. However, the two-way radio did not work because of the damage to the front of the Kress Hauler. Accordingly, Mr Schloss used his mobile phone to let the shift boss know what had happened. At about this time Mr Schloss realised the Kress Hauler was still rolling forward and applied the brake. Mr Schloss said the water truck should not have been in the Copper Smelter area when the accident happened. The procedure of changing slag pots was carried out in a restricted area where permission must be granted by the Kress Hauler operator before other vehicles can enter. If this permission is not given, other vehicles may not enter the area. In addition, there are signs near the entrance to the area stating that only authorised vehicles may enter and that the Kress Hauler operator must be contacted for permission before entering the area. Mr Schloss said he was not contacted by the water truck operator for permission to enter the area and nor was he aware that the water truck was in the area before the accident happened. The investigation Mr Mick Hogarth, Superintendent in the Transport Department of the Services Area, said he was contacted at home early on the morning of 27 April 2003 and advised that the Kress Hauler had collided with the water truck. Mr Hogarth elected to go into work to see what had happened. Upon his arrival, he found that the water truck was damaged on it’s rear right-hand side. The left-hand front of the Kress Hauler was significantly damaged. Mr Hogarth arranged for an acting supervisor to take photographs of the damage to the respective machines and where the Kress Hauler and water truck ended up. Mr Hogarth said that whilst inspecting the area he noticed there were water spray patterns on the ground. It appeared to him, from the spray patterns, that the water truck had backed into the pot bay and watered the area. This was the usual practice. Mr Hogarth said he also noticed the conditions that night and saw all lights were working and the area was well lit. Mr Hogarth said he started to question Mr Schloss and Mr Harrison, the driver of the water truck, about the accident after they returned from their drug tests. Both men were quite shaken so he arranged for the shift supervisor to take them both down to the Transport office to see if he could get some further information from them and to start filling out an incident investigation report. On the following day Mr Hogarth met with Mr Harrison (an employee of Skilled Engineering), as well as 2 managers from Skilled Engineering. Mr Harrison was asked to describe the previous evening’s events. Mr Harrison told Mr Hogarth that about 2.20 a.m. he set off to water the Kress Hauler road (between the Copper Smelter area and the slag dams). He called Mr Schloss on the radio before leaving but received no answer. He then proceeded to water the Kress Hauler road. Once he had entered the pot lay-down area, he stopped on the western side of the Kress Hauler. The Kress Hauler was parked at the pot stand. He called on the radio again but received no response. The Kress Hauler travelled to the pot bay to pick up a pot. Mr Harrison said he followed the Kress Hauler which drove into the pot bay. He watered on the way in and then turned around behind the Kress Hauler. He then reversed the water truck into the pot bay beside the Kress Hauler on its eastern side, turned the sprays on and started to drive out, watering the area as he moved forward. While he was driving out he was hit in the rear by the Kress Hauler. Mr Harrison estimated he had travelled some 4 metres when he was hit. He said the force of the impact pushed the water truck forward with some force. Mr Harrison told Mr Hogarth he looked in his mirror as he was hit and noticed hot slag spill over the top of the slag pot. Mr Hogarth said Mr Harrison acknowledged he had done the wrong thing because he had entered a restricted area without permission. Mr Hogarth said he agreed that what Mr Harrison had done was a serious safety breach and told him he was stood down whilst the investigation continued. Mr Hogarth said he then met with Mr Schloss who was asked to tell his version of events. Mr Schloss essentially recounted the version of events set out above but, in addition, indicated he had not spoken to the RHF operator before moving in to collect the full pot but had merely acted on the green light. Mr Schloss also said he did not hear the water truck reverse into the area when he was picking up the full pot and, specifically, he did not hear the reversing siren nor did he see the lights on the water truck. Mr Hogarth said Mr Schloss told him the Kress Hauler had not travelled far before it hit the water truck. After that, the Kress Hauler rolled forward until he (Mr Schloss) applied the park brake to stop the machine moving. Mr Schloss claimed that the water sprays were not on and also said that no slag had splashed out over the pot. On the following day Mr Hogarth continued with his investigation into the incident. He and several safety advisers went to the incident site. They parked the Kress Hauler and the water truck in the positions they were in when Mr Hogarth arrived on the night of the incident. Mr Hogarth said they then moved the Kress Hauler back and parked it at the position where Mr Schloss said the Kress Hauler was situated when he collided with the water truck. The investigators then backed the water truck to within a metre or two of the point of impact. Mr Hogarth said he then got into the Kress Hauler and looked in the rear vision mirror. He could clearly see the water truck in the rear vision mirror and said it virtually filled the whole of the mirror. There was nothing obstructing the view. Mr Hogarth said that for the remainder of that day and the following day he thought about the investigation findings, particularly the outcomes of the re- enactment. Mr Hogarth said he came to the conclusion that Mr Schloss did not follow the correct procedure by failing to turn the seat around to the forward position as he drove out of the RHF slag pot bay and, further, that he simply did not look in the rear vision mirror before moving the Kress Hauler out of the bay. -- 2 of 6 -- 12 December , 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1351 Mr Hogarth said in his view there was no way that Mr Schloss could have missed seeing the water truck had he looked. Although he agreed that the water truck should not have been in the area he also thought that did not take anything away from the seriousness of Mr Schloss’ conduct. Mr Hogarth said that just because an area is restricted, it does not mean that operators can assume things. Everyone is expected to watch where they are going when driving heavy machinery. A failure to do so creates significant risk. Mr Hogarth said he ultimately came to the conclusion that Mr Schloss’ failure to watch where he was going was serious. Given Mr Schloss’ history of safety incidents (see below) he reached the conclusion that he could no longer trust Mr Schloss to operate heavy equipment. As a result, he came to the view that Mr Schloss should show cause why his employment should not be terminated. On 1 May 2003, Mr Hogarth spoke to Mr Ross Willis, General Manager Services Area, about the accident and the results of his investigation. Mr Hogarth said he told Mr Willis that it was his view that both Mr Schloss and Mr Harrison were to blame. Neither of them had followed the correct procedure. Furthermore, it was Mr Hogarth’s view that Mr Schloss was not looking where he was going and was therefore operating the Kress Hauler negligently. It was just not a case of him looking but unfortunately failing to see the water truck. Mr Hogarth said he told Mr Willis that Mr Schloss had a history of safety incidents whilst operating machinery and, following this latest incident, he considered him to be a safety risk. He recommended that MIM should ask Mr Schloss to show cause why his employment should not be terminated. Mr Hogarth also spoke to the manager of Skilled Engineering and informed him that Mr Harrison was considered to be a safety risk because he had failed to follow fundamental safety procedures and his services were no longer required. On 2 May 2003, Mr Hogarth spoke to Mr Schloss in company with 2 other management representatives. He told Mr Schloss that he considered that Mr Schloss was at fault because he did not follow the correct procedure (by operating the Kress Hauler in the reverse position rather than the forward position) and because he was not looking where he was going. Mr Hogarth told Mr Schloss that he had a history of procedure related incidents spanning the last few years and that he had trouble with the idea of Mr Schloss continuing to drive machinery because he was at risk of injuring himself and others. Mr Hogarth said he told Mr Schloss that he would be required to show cause at 11.00 a.m. on 6 May 2003 why he should hold his job. On that day, Mr Hogarth chaired the show cause meeting for Mr Schloss. At the conclusion of the meeting he told Mr Schloss he would consider what had been said and would get back to him. One of the issues raised by Mr Schloss during the show cause was that he needed to reverse out of the pot bay so that he could keep an eye on the wheels to prevent pivot caps from being ripped off. Mr Hogarth did not believe this issue to be relevant because steel plates had been welded onto the vehicle to prevent that from happening. Another issue raised was the fact that the water truck was in the area without permission. Mr Hogarth said he agreed with that comment but did not think it changed anything. He said the main issue for him was Mr Schloss’ claim that he had looked in the mirror. Mr Hogarth said he simply did not believe Mr Schloss’ claim. He said his investigation (on 29 April 2003) led him to conclude that had Mr Schloss looked in the mirror he would have seen the water truck. Mr Hogarth said that given the seriousness of the incident, Mr Schloss’ history of safety incidents and the fact he had lost faith in Mr Schloss’ ability to safely carry out his role, he was left with little option but to terminate Mr Schloss’ employment. Mr Hogarth said he did not consider that Mr Schloss could be given any other job because all operator jobs on the lease involved the use of equipment or machinery of one form or another. In the circumstances, he decided to terminate Mr Schloss’ employment. Prior incidents On 1 May 2000, Mr Schloss was involved in an incident in which he failed to engage the slag pot locks to secure the pot to the back of the Kress Hauler. This incident happened on a day when there was approximately 10 maintenance vehicles in the area together with 20 to 25 maintenance staff. Mr Schloss said at the time he was engaging the slag pot locks a slurry truck driver contacted him on the two-way radio to gain permission to enter the restricted area. This contact, together with the high volume of people and vehicles in the area, distracted him as he was attempting to engage the slag pot locks. Mr Schloss said he was not counselled or issued with a warning after this incident. In accordance with MIM’s policies and procedures any warnings on an employee’s file are “de-activated” after 2 years and not taken into account in any later disciplinary process. In any event, the above incident has not been directly relied upon by MIM to justify the decision to terminate. Rather, it was pointed to as just one other example of incidents, involving safety, during Mr Schloss’ recent period of employment. Mr Schloss was also involved in another incident while driving the Kress Hauler on 10 July 2001. An investigation into this incident concluded that Mr Schloss had lost concentration and hit a guard rail while transporting molten slag from the smelter to the slag dams. The collision with the guard rail caused slag to spill which in turn caused a grass fire. Mr Schloss put out the fire with the extinguisher in the Kress Hauler but failed to report either the incident or the use of the fire extinguisher. The incident was discovered the next day when the Kress Hauler driver on the following shift noticed the damage and reported it to Mr Hogarth. Mr Schloss said he was not formally counselled or disciplined over his incident which he claimed was linked to driver fatigue because he had not taken any breaks for the previous 10 to 11 hours. Mr Hogarth said Mr Schloss’ failure to report the incident was a significant breach of procedure and would normally have warranted disciplinary action in the order of a final warning or perhaps dismissal. However, at the time, Mr Schloss was going through some tough personal issues arising from the breakdown of his marriage. Mr Hogarth said that he took this factor into account when he decided not to take any form of formal disciplinary action against Mr Schloss. Mr Hogarth said he felt that if he had taken disciplinary action at the time it probably would have broken Mr Schloss. Instead, Mr Hogarth spoke to Mr Schloss about the seriousness of the incident and warned him that he must “pick up his game”. Mr Hogarth said Mr Schloss promised him that he would, in the future, comply with all safety and other procedures. Mr Schloss was involved in yet another incident involving the safe operation of equipment on 29 July 2002. On that day, Mr Schloss was operating a front-end loader “tramming” dry zinc from a stockpile at the south end of the zinc pad to the stockpile at the north end of the pad. Tramming is carting product from one area to another. Mr Schloss said that some 8 to 9 hours into a 12 hour shift he sneezed and involuntarily hit the joystick of the loader with his hand. This caused the loader to veer right and the corner of the machine’s bucket hit a wooden fence near to where he was travelling. Mr Schloss said there was no damage to the machine but there was a hole punched in the fence, approximately 10 feet round, from the loader’s bucket. An investigation established that Mr Schloss was carrying the bucket too high which restricted his visibility. Mr Schloss was issued with a written warning in relation to this incident. The “appeal” through the Fair Treatment Process Some time after his termination Mr Schloss lodged a fair treatment form challenging his dismissal. The matter came before Mr Ross Willis, the General Manager of Business Unit Services. Mr Willis conducted the fair treatment hearing on 26 June 2003. -- 3 of 6 -- 1352 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 December , 2003 At the meeting, Mr Willis noted that Mr Schloss’ major concern was the way that the incident had been investigated. Mr Schloss was also concerned that MIM had not taken sufficient account of the fact that the water truck had proceeded into a restricted area without permission. In addition, Mr Schloss challenged MIM’s apparent reliance on the fact that he was operating the Kress Hauler, at the time of the incident, in the reverse position rather than in the forward position. Mr Schloss said he had been trained to operate the vehicle in this position and, as far as he knew, all other operators operated the vehicle in the same way. In this respect it was established during the investigation processes that MIM’s written procedures required the Kress Hauler operators to operate the vehicle in the forward position when exiting the slag pot bay. However, despite this written procedure, it was established that the operators, in fact, operated the vehicle in a different manner. Mr Willis said he questioned Mr Schloss about a number of other matters including his use of the reversing mirror and what he was actually doing on the night in question. Following the hearing, Mr Willis considered all the information presented. As a result of his consideration of the points raised by Mr Schloss, he determined that he needed to sit in the Kress Hauler and see for himself whether it was possible that Mr Schloss looked but simply did not see the water truck behind him. Consequently, on an evening during the week commencing 30 June 2003 he arranged for the Kress Hauler and the water truck to be set up as they would have been situated at the point of impact. Once this was done he sat in the Kress Hauler and looked in the rear vision mirror. Mr Willis said he noticed that the water truck filled the mirror and that the water truck was clearly visible. He also noticed that to see the tyres of the Kress Hauler you could not help but pass your eyes across the mirror. Mr Willis said he came to the view that there was no way that Mr Schloss could have looked but not seen the water truck. He therefore concluded that Mr Schloss was not looking where he was going on the night in question. Mr Willis said he also spoke to Mr Hogarth about the investigation that Mr Hogarth had conducted. As a result of this discussion he concluded that Mr Hogarth’s investigation process was thorough and fair. Over the next few days Mr Willis thought further about the whole matter. Whilst he remained of the view that Mr Schloss did not look where he was going he nonetheless asked Mr Hogarth to do a further test to determine the length of time that the water truck would have been visible in the Kress Hauler’s mirror. He asked Mr Hogarth to simulate the movement of the water truck as it occurred in the early hours of 27 April 2003 and to record the length of time that the water truck was visible in the mirror. Mr Willis said that Mr Hogarth carried out the test and later told him that the water truck was visible in the mirror for between 10 and 20 seconds. Mr Willis said that information confirmed, in his mind, that the decision to terminate was correct. He had sat in the cabin of the Kress Hauler and seen that the water truck was clearly visible in the mirror. The fact that the water truck remained visible in the Kress Hauler’s reversing mirror for between 10 and 20 seconds confirmed, to him, that Mr Schloss was simply not looking where he was going when the accident occurred. Mr Willis said the liability on an employer in the mining industry to establish a safe system of work is absolute and the penalties for failure to do so are extremely severe. He also said MIM requires strict compliance with safety and health management obligations, policies and procedures in an attempt to convey a message that safety comes before everything else. MIM is attempting to create a culture of “think in the interests of safety before you act”. Imposing strict discipline in the event of a failure of an employee to be personally responsible and accountable for health and safety demonstrates the importance of same conduct and reflects the absolute need to satisfy the standards imposed under the Mining and Quarrying Safety and Health Act 1999 and associated Regulations. Mr Willis said that when driving heavy machinery it is imperative that operators look where they are going. This is the case regardless of whether the operator is in a restricted area or not. The fact that an area is restricted is not meant to be a “fail safe”. The true “fail safe” is always to look where you are going before you move in a particular direction and while you are moving in that direction. Mr Willis said that after considering the matter, especially the responsibility that he had under the Mining and Quarrying Safety and Health Act 1999, he decided that the seriousness of Mr Schloss’ conduct was such that there was no disciplinary action, other than dismissal, which would have met the gravity of his serious misconduct. Mr Willis said the fact that the water truck should have not been there, or the fact that Mr Schloss was taught to operate the Kress Hauler differently to the written procedures, did not alter the view that he formed about Mr Schloss’ conduct. He said Mr Schloss’ failure to look where he was going was, in his mind, sufficient to justify his dismissal. The fact that he had a history of safety incidents further confirmed that the decision to dismiss was the correct decision. Mr Willis also said he could not entertain the idea of moving Mr Schloss to another position because his conduct on this occasion demonstrated a flagrant disregard for a fundamental safety policy and procedure. Mr Willis said given Mr Schloss’ history he could not justify giving Mr Schloss another chance. Findings I have considered all of the evidence (including all of the material contained within the various witness statements, as well as the extensive submissions of both Ms Allen, who appeared for Mr Schloss, and Mr McLachlan, who appeared for MIM) in deciding this matter. I also record that I had the benefit of inspections of the area where the incident occurred (albeit in daylight hours) as well as having been shown the nature of the duties performed by Mr Schloss on the night in question. In particular, I had the benefit of being seated in the Kress Hauler in the reverse position and participating in a re-enactment of the events of the night in question. I have utilised information and knowledge obtained from that inspection to assess the evidence of the various witnesses and to help me determine its credibility. I have concluded that Mr Schloss was operating the Kress Hauler in a negligent manner at the time of the incident on 27 April 2003. In so deciding, I have rejected Mr Schloss’ evidence that he was looking towards his rear, either by turning his head or using the reversing mirror, whilst exiting the slag pot bay. I have reached the conclusion that Mr Schloss was simply not looking where he was going and was reversing his vehicle by looking at points of reference in front of him (i.e. to the rear of the direction of travel) in order to estimate the time at which he should make his (usual) left-hand turn before heading to the slag pot lay-down area. In my considered view there is no way that Mr Schloss could have missed seeing, or hearing, the water truck had he been properly focussed on his tasks and been alert to his surroundings. I have reached the conclusion that Mr Schloss had driven into and reversed out of the slag pot area so many times that he had become accustomed to doing it almost by rote. On the morning of 27 April 2003 he was not expecting any other vehicle to be in the area – because no-one is meant to be there without permission – and he “reversed” into the water truck without noticing it was there or looking to see if any other vehicle or person was there. -- 4 of 6 -- 12 December , 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1353 Whilst it is certainly true that Mr Harrison, the water truck operator, should not have been where he was – because he had not sought permission – that does not in any way excuse Mr Schloss’ failure to look where he was going. The molten slag that Mr Schloss was carrying in the Kress Hauler weighed some 47 tonnes and was, on the evidence, heated to some 1100 to 1200 degrees celsius. Molten slag is a very dangerous product and it is essential that any operator of the Kress Hauler take special care and attention whilst carrying such product. Mr Schloss was simply not exercising such due care and attention on the night in question. In my view, each of Mr Hogarth and Mr Willis reached the correct conclusion that Mr Schloss had simply not looked where he was going and, thereby, was driving in a negligent fashion. MIM’s reliance on previous incidents Each of Ms Allen and Mr Schloss attempted to down play the prior incidents (see above) arguing that the 1 May 2000 incident was outside the two year period for cautions and/or counsellings which MIM could rely upon under the terms of its certified agreement with the union. They also said Mr Schloss had not been warned or counselled about the other Kress Hauler incident on 12 July 2001 and that the 29 July 2002 incident was relatively minor. As such, they said that none of that material should have been relied upon and taken into account by MIM when it reached its decision to terminate Mr Schloss following the incident of 27 April 2003. The evidence suggests that MIM did not directly rely upon the 1 May 2000 incident to justify the decision to terminate. Rather, MIM only highlighted the incident as being yet another safety incident which the Commission was entitled to take into account should the issue of reinstatement be contemplated by the Commission if it found, in all of the circumstances, that the termination was harsh, unjust or unreasonable. Mr Hogarth, who made the recommendation to terminate Mr Schloss, seemed to only rely on the incidents in 2001, 2002 and the final incident on 27 April 2003. In any event, I have excluded the 1 May 2000 incident from any analysis of whether MIM acted fairly towards the applicant. In my view, MIM was not only entitled to consider the incident of 10 July 2001 and 29 July 2002, respectively, in deciding the question of Mr Schloss’ future employment but was obliged to. As recorded above, in my analysis of Mr Willis’ evidence, the provisions of the Mining and Quarrying Safety and Health Act 1999 are particularly onerous. They impose significant obligations on employees, not just in respect of their own health and safety, but also in respect of those with whom they work. In addition, there are significant obligations imposed upon managers, and mine operators, to ensure a safe system of work and appropriate standards are enforced. Consequently, both legislatively and at common law – as well as under the terms of its certified agreement – MIM was entitled to take into account the 10 July 2001 and 29 July 2002 incidents, respectively, notwithstanding that there was no formal counselling or warning given to Mr Schloss in respect of the 10 July 2001 incident. In that regard, I record that I believe Mr Schloss was very lucky to have kept his employment following the 10 July 2001 incident. Mr Hogarth made it plain in his evidence that he did not take the step of terminating Mr Schloss’ employment at that time, or at least issuing him with a final warning, because of Mr Schloss’ personal circumstances. Having been the beneficiary of some particularly favourable treatment at the time it is inappropriate, in my view, for Mr Schloss to now argue that the events at that time cannot be taken into account later. In my view, MIM was entitled to take into account the “whole” of Mr Schloss’ history over the previous 2 years in deciding how to deal with him after the incident of 27 April 2003 – irrespective of whether he had been formally warned or counselled in respect of any or all of the incidents. Was the termination harsh, unjust or unreasonable? Section 77 of the Industrial Relations Act 1999 requires the Commission to consider a number of matters in deciding whether a particular termination was harsh, unjust or unreasonable. Notwithstanding some criticism from Ms Allen about the processes adopted by MIM, it is clear to me that Mr Schloss understood the nature of the allegations being made against him. In that respect, whilst some criticism was made of the fact that the initial decision to terminate Mr Schloss’ employment was partially grounded on the fact that he was operating the vehicle in the reverse position, rather than the forward position as required in the operating procedures, I do not think that this point had any particular significance in the overall decision to terminate. The evidence of Mr Hogarth, who effected the termination, and Mr Willis, who conducted the fair treatment appeal, make this clear. They each said that the decision to terminate was because they concluded that Mr Schloss was simply not looking where he was going, and, taken with his previous history, they concluded he was a significant safety risk both to himself and other employees on the lease. I have also concluded, despite Mr Schloss’ arguments to the contrary, that he was given an appropriate opportunity to respond to the allegations being made against him. In that regard, both Ms Allen, in her submissions, and Mr Schloss, in his evidence, complained that Mr Schloss had not been involved in the various re-enactments conducted by MIM (see above). They argue that such failure to involve Mr Schloss meant he was denied an appropriate opportunity to present his defence and constituted a denial of natural justice and/or a tainting of the Respondent’s investigations. Having listened to each of Mr Hogarth and Mr Willis give their evidence, I am satisfied that each of the reconstructions was conducted fairly and for the purposes not of confirming Mr Schloss’ blame in the incident but, rather, so that they could genuinely understand what had happened and how it might have been that Mr Schloss did not see the water truck before he drove into it. To my mind, they were each seeking some explanation for what might have happened. As it turned out, the only explanation available is the one that each of Mr Hogarth, Mr Willis and I have separately reached, i.e. Mr Schloss was not looking where he was going. Mr Schloss was not denied natural justice by not being involved in the reconstructions. Each of Mr Hogarth and Mr Willis were simply trying to put themselves in the same position as Mr Schloss so that they could better understand his explanations of what he claimed had happened. Mr Schloss had been given an earlier opportunity to present his explanation of events and had fully availed himself of that opportunity. Section 77(d) of the Industrial Relations Act 1999 also requires the Commission to consider any other matter it considers relevant. It is clear, from the evidence of Mr Hogarth and Mr Willis, that the decision to terminate was founded for the reason that each of them had decided that Mr Schloss had become a significant safety risk. In that respect, I particularly note the evidence of Mr Willis about MIM’s workplace health and safety obligations and how he took his obligations into account in deciding the whole matter. I endorse the approach he adopted and the conclusions he reached. I also note what Blades C had to say in The Australian Workers’ Union of Employees, Queensland (for Charles Bellchambers) v Mount Isa Mines Limited (2002) 171 QGIG 1 about the matter of safety on mining leases and how safety procedures may need to be enforced: “… employees cannot be personally supervised at all times and are required to be responsible for their own tasks, behaviour and accountability. The employer owes a duty of care not only to the applicant but also to other employees to protect them from irresponsible conduct and to enforce safety procedures. It alone has the power to prevent future transgressions.”. -- 5 of 6 -- 1354 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 December , 2003 The incident on 27 April 2003 was extremely serious. Mr Schloss was operating a very large vehicle carrying approximately 47 tonnes of molten slag, at a temperature of somewhere around 1100 to 1200 degrees celsius. Despite the size of the vehicle and despite the very dangerous nature of the product he was carrying, Mr Schloss was not looking where he was going. He was thus guilty of gross negligence. Given the events of that night, and the separate events of 10 July 2001 and 29 July 2002 (see above), MIM was entitled, in my considered view, to conclude that Mr Schloss had become a serious safety risk both to himself and to other employees. MIM was entitled to take all three incidents into account in deciding to terminate his employment. Indeed, it would have been leaving itself considerably exposed had it not done so and Mr Schloss had been involved in some further accident or incident. In all of the circumstances there was nothing harsh, unjust or unreasonable about the termination. For the foregoing reasons, I dismiss the application. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2003 9 September (Inspection) 2003 10, 11 September Appearances: Ms K. Allen, of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, for the Applicant. Mr D. McLachlan, of Mount Isa Mines Limited, the Respondent. -- 6 of 6 --