Facelli v Mount Isa Mines Pty Ltd [1999] QIRC 17 (1999) 160 QGIG 96

96 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 February, 1999 ##########################################################################################################¥################ COMMISSIONER FISHER QUEENSLAND INDUSTRIAL RELATIONS COMMISSIO:S Workplace Relation.r ,1ct 1997 - s. 218 - application for reinstatement David Facelli AND Mount Isa Mines Pty Ltd (B908 of 1998) I 20 January 1999 Application for reinstatement - Extension of Time granted - Loco drivi::r - Driver only shunting accident- Radio malfunction - Collision with tippler - Wagons derailed - Breath test negative- Investigation - Dismissal - Fair Treatment ixocess - Excessive speed - Application refused. DECISION David Pacelli has applied for reinstatement to his former position of Loco Driver with Mt Isa Mines Pty Ltd (the Company). Mr Facelli's application was filed some eight days beyond the 21 days time period prescribed bys. 218(3)(a) of the Workplace Relations Act 1997, (the Act) however, the point was not pressed by the respondent. ln the circumstances the Commission grants an enlargement of time for filing the application to 29 May 1998. (s. 218(3)(h) of the Act). Mr Facdli was employed by the Company on its lease in Mt Isa in a full-time capacity from 14 December 1987 to 30 April 1998. For the first two and a-half years of his e.mployment Mr Facdli worked as a constructor in relation to the Smelter. He then transferred to the Transport Department as a loco driver. As Mr Facelli had gained an Oil Locomotive Ticket whilst employed at Victoria Mill in the late l 980's he did not have to be re-ticketed. At the time of Mr Pacelli' s termination, two people were engaged specifically as loco drivers. Mr Pacelli was the most senior of the two and spent all of his working time driving the loco. Two shunting teams, comprised of one loco driver and two shunters, consistently worked together on 12 hour shifts on a roster of 4 days on and 4 days off. The two shunters in Mr Facelli' s team were Mark James, the "he<1.d" shunter and Rod Freshney. J Until the day of the incident which resulted in bis dismissal, Mr Facelli had a satisfactory work record. The incident occurred on 27 April 1998 at approximate! y 5 pm. It was the shunting team's job to collect wagons from Queensland Rail (QR) and to shunt them to the copper concentrate (cons) area of the MIM lease (and other areas as well) for loading. On this day, Mark James decided to collect 37 wagons from QR, 13 of those were to be shunted to the copper cons area and the remainder were to be shunted el.~ewhere. ln their evidence both Mr Pacelli and Mr James said they knew that only 20 wagons would flt on the copper con!- pad but that did not limit the overall number ot wagons which could be connected to the loco. Moreover, by taking the 37 wagons would ensure that the loading requirements would he met to enable QR to take the train thus ensuring MIM would not be penalised. I am satisfied on the evidence that Mr James, after querying with Mr Facelli whether 37 wagons could be pushed into the copper cons area, made the decision to proceed. Although Mr Facelli expressed a lack of certainty over this and said he was concerned about the size of the rake, the tightness of the bends on the track and the weight of the load, he nonetheless agreed to shunt the 37 wagons. ]';one of his concerns were expressed to Mr James nor docs it seem that they were so serious as to affect Mr fiacelli' s decision to drive. I am satisfied that Mr James believed himself to be and was acknowledged by the other two team members as being the leader and ultimate decision maker. The difficulty with this arrangement was that Mr Facelli as driver had particular responsibilities which could not be delegated to Mr James. Mr Facelli' s failure to accept or exercise those responsibilities contributed to the incident. The operation in which Messrs Facelli, James and Freshney were engaged was a dnvcr only shunt, that is, Mr Facelli, was alone in the cabin of the loco. '[be two shunters were stationed on the ground near the track to provide direction to Mr Pacelli. The shunters were referred to as being Mr Pacelli' s •·eyes and ears". The method of work relies on regular, clear and precise communication between the shunters and the driver to ensure safety. Two-way radios are used for this purpose. After the 37 wagons were connected Mr James proceeded to the copper cons pad by car. \1r Freshney was stationed in the lead wagon and advised Mr Pacelli to proceed with the shunt. Mr Freshney jumped from the (moving) tram just before the tunnel through which the wagons have to pa.~s to reach the copper cons. Until that point the shunt had been proceeding well with Mr Facelli advising loader dnvers in the zinc pad of his position and receiving confirmation from them. For Mr f<reshney to jump from the moving train was a breach of safety procedures. The train was rcqu1Ted to stop to allow the shunter to disembark. Both Mr Freshney and \1r Pacelli were aware of this requirement yet decided to ignore it at Mr Facelli' s request apparently because of concern that the train would be unable to regain sufficient momentum to finish the shunt with 37 wagons. After Mr Freshney disembarked and advised Mr Pacelli that it was "all clear", Mr Pacelli clarified the whereabout~ of Mr James with Mr Freshney who replied that he (James) was at the copper cons. Mr Facelli then confirmed this with the loader driver and then Mr James himself told Mr Facelli tu keep proceeding. Thereafter, contact was lost on the two-way between Messrs Facelli and James. According to Mr Pacelli' s evidence he did not initially believe that radio contact had been lost as it was not unusual for Mr James to only begin the wagon countdown relatively close to the stopping p.:iint. Thus "'11en instructions were not received Mr Facelli was not overly concerned and continued with the shunt although power was progressively reduce<l when Mr Facelli considered he was reaching his destination. Only very late did Mr Pacelli realise that contact may have been lost. He did not attempt to call Mr James himself on thi:: two-way preferring to leave the line open. Instead he asked Mr Freshney whether he had heard from Mr James and ultimately asked him to make the call. During this time the shunt, with more wagons than usual, continued. 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 97 Mr Facelli said that when he thought he was approximatelv a-quarter to a-half a wa took the lever back to neutral. Within a few seconds of h~aring t11e th ottl 1· k . gon out from where he was due to stop, he let go of the throttle and h h i 1 . r e c 1c mto neutral he felt a bump but had · d h d . t en ean tie loader duvcr yelling to him on the transport radio channel in his cab b no i ea w at cause it. Mr Pacelli commg through the tunnel talking into the two way radio Mr Facelli d'd t , . uthcoul~ not understand what he was saymg. He then saw Mr James . • 1 no rece1 ve t e rad10 signal. The bump which Mr Facelli had felt was the wagon collidin with a ti I • . · .· , . the collision was S 180 000. In addition, a number of wagon; had be 1T e\ atliH~me situated on the end of the track. Damage to the tippler caused by en era1 e wit some lyrng on thelf sides some distance away from the track. Despite the accident occurring and even having reported it, Mr James instructed Mr Face!· ~ some product could still be loaded and QR commitments met. . . lI <1nd Mr neshney to uncouple a number of wagons so that After the accident Mr Facelli was required to undergo a breath t ~st which . tu d · the shunt team to undertake the test but because of ;n error mad"' b tfe hrne ~ negative result. In fact MIM policy required all three members of h . · e Y one o t e accident lllVf\~t1gators Robert B · b "IIM I · · ot er two were not reqmrcd to submit to the test. , rams ury, 1.- ,og1st1cs Manager, the All members of the shunt team were required to write out their versions of what h d · supervision while this happened, it does not appear nor is it' SU gested that collusion a oc.curred. Whde they _were left together in one room without happenrng it is odd the Company did not consider it necessarv~o have a erson. occuned. I remark m passm~ that although much would have been avoid any possibility of collusion It is also unknown wh th, th thr p pffresent or to separate the men while thelf vers10ns were being written to . . . . · , e er e ee were o ered legal/union ad · t · · h · · given that d1sc1plmary action may have ensued in the event safety breaches were found. - vice o assist m t e preparat10n of thelf statements Investigations of the incident were undertaken by a number of pc le from MIM d · the investigation showed that speed had been a significant contr1·boput1·ng f t Aan. cdxpenenced staff from QR were also called to assist. The results of I d . . . . ac or. n m ependent report was subseq tl b · d n eternnmng to take d1sc1plinary action against the three M B . b .d h h . . uen Y O tame on the matter of speed. , r rams ury sai t at t e followmg issues were taken into account:- A serious safety breach had occurred All 3 were involved in the <leci.~ion to shunt 37 wagons Individual crew member~ have safety ol r •t d · · · · The speed of the train w, . nd> iga wns an . any activity which generates concerns about safety should not be undertaken ~ . .as excessive a accountab1hty for the speed of the loco rests with the driver I a1lure to stop once radio contact lost- accountability again rested with the driver. ~s a result of these deliberations, Messrs James and Freshncy were issued with a fi · • • . Company also took into account his involvement in the other safety breach that da nal w.arnmg. In cons1dermg the p~nalty given to Mr Freshney, the years gooo service with the Company, it was decided not to dismiss him. y, ie., JUmpmg from the movmg tram. Because Mr Freshney had 34 Mr .b'acelh was dismissed because of not meeting his accountabilities as loco driver, especially in respect of speed. All three accessed the Company's Fair Treatment process however none of the dis · I , Manager, Business Unit Services who conducted the p'.. T . t ' . . c1p inar) outcomes altered. The evidence of Scott Roberts General contribution to nor remor~e about ~h,, accident He wa~ alf I rea ment process, was that unlike the two shuntcrs, Mr Pacelli exhibited no' sense of . , ~ • • mere van mnocent party Additionally his versi · · m terms of the speed the train was travelling Although M F" 11 ., d. . 1 · . ' •. on was mcons1stent with experienced rail staff • r ace 1 s 1srmssa was confumcd pnor tor · · th f report subsequently showed that Mr Facelh' s story could not be correct. ece1vmg e report o an independent expert, this A number of issues arise for consideration as to whether the d. · I undertaken, the speed of loco and the different disciplinary treat~:~~sa can be found to be harsh, unjust or unreasonable. These are the investigation 1ne issue with the investigation concerns the role of Lyle Garnett who was actin in .· · . · • of the incidenL Mr Garnett was the primary investigator wh . ' I . lg d the pos1t10n uf Rail Transport Operatwns Superintendent at tbe time the radios, talkmg to the other shunt crew about their k ,osde mvfo ~e?1ent me u ed the organising of the initial statements from the shunt team, testing . now e ge o various procedures and other related act'v·t Wh · f · case 1s Mr Garnett' s approach to Mr James' after the initial stat 1 k . · . 1 1 ies. al 1s o particular concern in this an estimate of the speed of the train Mr James indicated. hieme~ds wereh' ta hen with the suggestion that he may wish to amend his statement to include . . . · , rn s evt ence t at e felt under some duress 10 d h m a pos1t1on lo influence any disciplinary action. At Mr Garnett' s behest Mr J . amen . IS statement because Mr Garnett was coming through tunnel was faster than normal approximate[ . I O h,, Th a;es a~nded his statement to mclude that the "speed of the wagons would have caused the damage and derailment. y. mp . . e spee nommated hy Mr James was estimated by Mr Garnett as that which In his e\idcnce it was apparent that Mr James did not believe that the train was traV'' · . · · his pumshment. It was also clear that Mr Garnett'~ intercession was ll k MI~Mlhng at the speed of 10 mph and the add1t10n was made to minimise ,. - , n nown to management. Mr C~arnett's involvement raises questions about which preferential treatment was aft . · • • is sufficient at this point to say that the actions of Mr Garnett were at b s . . _Oided to Mr James and I shall deal with this mmore detail later. It with leaving the shunt crew together to write their statements th ,e t'dan unJustJhabt~ mte1ference and at worst an abuse of his position. Combined dd d , e acc1 ent mvest1gat10n could have been s v l · d {J . a en um to Mr James' statement had little effect on the invest' t ' l . h e ere y compronuse . ltunately the the mdependent report. iga ors cone us1on t at speed was a contributing factor, a position later substantiated by Il1e quest.ion of speed was of critical importance to MIM' s decision to dismiss Mr Facelli. Variou~ .. · • m the accident and the rnvestigation. At all times Mr Fa,~elli de . d th· t h dr . . ·• s-..enar10s were proposed by many of those mvolved impact. In his wril_ten evidence reference ~as n;ade to the po1'11nts1ewh a e was lVllldg width eThxcess1ve speed either immediately prior to or at the time of b fi , . , en power was re uce at Mr Pacelli was ot dr" · · h e con lfmed by his two shunters who did not advise him that the t a tr 11· _· u tvmg wit great speed seemed to d . • r m was ave mg too tast Their initial estimate of the d 5 k h Th l nver operating on the copper cons pad believed however that the tra1·n W' . tr· 11· f h. spee was p . e oader as ave mg aster t an normal. :~:~n~~~~~t:h~1:;::i::~i~i~si::::~:r!:t;i~~~ staff revealed that to the extent of the damage, speed was a major contributing factor. -n1 e QR Examiner The i~dependent report was prepared by Colin Cole, Research Engineer of the Centre for reports summary was as follows:- Railway Engineering, Central Queensland University. The 27997 -- 1 of 2 -- 98 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 February, 1999 h b of wagons. While lhe , . . . s· on which detailed the distance travelled by reference .to t e_ num er Mr Cole used a statement from Mr Pacelli s lllttlal ver. L . • wa.s not relied on for the purposes of the simulation. • . . . l . t nt was reforred to lil the report, Lt . . addendum to Mr James tmlla sta eme . . II t th t part detailing his reductions m d f the proceedmgs and espeCla y o a . h . . Mr Facelli's '-'Titten statement prepare or . . , or had it been available pnor to the earmg. In evidence Mr Cole wa~ taken ~o ade available to Mr Cole at the time his simulation "as cond~tt n lli's written statement Mr Cole's evidence power. This mtormat10n nad not e.en ml Mr Cole was asked to make new calculat1ons based on r_ a;e I s nee the accident would not have As this statement varied from his ongma one,. l . ons would not have collided with the t1pp er. n es. e , was that had Mr Pacelli reduced power as danned then t 1e wag occurred. This leaves Mr Cole's original findings which ought to he accepted particularly in the absence ln my view Mr Facelh' s new version cannot be relied on. of any competing engineering study. d h h Mr Pacelli claimed he was travelling h t d to the copper cons pad at the spec w ic . h ·ct nt ff There was some conjecture over whether the wagons could b::1:: ~ussen the Rail Tra~sport Operations Superintendent at the tin: ~f; ke ~cc~s. is ior to the accident. Evidence of a re-enactment was given . 'start into the c per cons area while travellmg at a spee o P.. . ;':,dence was •hat a loco w,th 37 wagon, could be ,hu~OOC~~:,',•fi~-::• It was cun."de.':a to be particuhdy televant giwn that Mt Pacelh cla,med to evidence was ust:d by the applicant tu cast doubt over f . d . g power and had not affected the speed by stoppmg. . . t nt speed be ore re ucm ha,e =nunued movmg the ltaLn " • consa t Pacelli on 2 7 Apul 1998 i, po,sible to do at a speOO of _8_kph. Ju my v,ew the Bussen expc,iruenl shows"';;;• sh7" oft~:::;:.::::::;t::::: ~~~ey Business Analyst (Ananc,al) with t~e Rolli;;:~:: !:'o~::: Evidence was give.non the inferenc,:s to be awn r;~ansle ,, s experience with QR has included several derailment mvestiga l~~:· was hi; considered of the Coal and Mainlme Freight. broup of QR._ MM F. ir Although Mr Tansley was not present for the Bussen expenmen b d number of a.~sistance to MJM regarding the mc1dent mvolvmg i r ace i. could have only been higher than 8 kph. Th1s ev1de~ce was ase on a_ ev,dence that the mttial speed of the ttam pnot to the temoval ofrw:,i,tance of the ttain. CouplOO w,th Mt Cole'' inve,t>gattons teSWt; wluch ,el y on factors including tbt: point where power was removedd anth<l tth~hroci:!pa.ny were correct in concluding that speed was a major contnbutmg actor. . d · tifically bas<-,d, I cons1 er a e accident damage an are scien · . • ,· . , ted the speed . , . . . ·ti ated Mr Pacelli' s actwns. While no signs ex1s , as made to ar ue that the absence of signs mdicating speed hrruts nu g ons than usual were being shunted then greater speed was :;:p\:~~~~\:e ~rca was ge;erally known. In this ~e givden that ~~;;:~:~l~l~.::::;::ibl~ for the speed of the train but did not exercise due care th reached the designate area. n . f f H generated in order to ensure e wagons . . driving the train at speed was the height o o y. :nd attention. Coupled with the loss ofrad10 contact to contmue . , I when a signal is not received when d. ication Once radio contact is ost or MIM Sb t Fundamental to a successful driver. only shunt rn constant ra e: c~:;n:~imary. safety rule and is recorded in various edi~ons of the un ers ··xpected then to ensure safe operat10n the tram is t~ bell~toppd th. :,;afet '' rules were reinforced at various safety tram mg meetmgs, V 1 de availahle to Mr J•ace 1 an e · , · M~ual. The~~••' wtte ma . t b foce counnng the wagons down to a stop. . . . . . h t Mr James often left it to the last momen e d I ~ d Mr ~'.'.::'!';,~t:;;:~~'~::.:t:nh:~: ;;:::;•:;1::::yd:~:~::;;!~o"::":h::,::::~;o;:.,::n;n:::::~:; ::;:;;~::::: ~~m ;:;:;ates Pacelli, too, would have reahsed this. His question to r thi~. . d , ' o sibility was borne by Mr Facelli to know .. h cons pad were bemg transpo£te extu re .. p n . . y other ~i:aprri:~i:: :c:~i~:~• gn:u:~sw;:~s:~;ew:c:!~~:E:t :~~pt;srdudtyhlaodsntopot ~~::::i·m~t:;sf::~~:~::n!:;: t:;!:i~~~:;nf~:=~:::n;a~;: to stop - · ·r t penod ven 1 spee contact had not be.en received tor a s1gm IC~een suff:cient to warrant dismissal. the train in these circumstances would have . ·1 · I .d Mr James is extremely fortunate . ed b M Fa ·elli and Mr James. Wh1 e cons1 er , ff This in my view is ah7 cau7 : 1:a;~:n th h~:i:~~;,:t :::::~~,~~v deci;w: to ~ncoople wagons friotg:;::::::;:: ~:v:;f;';:;;:,:·':i.: t::.:: to remam m the emp oy o . d of the train. Because of dehberate strategies en ultimately responsible for the safe operat10n an passage safcty. . . Ud v Ta ukma 5ae whetc a decision of the High Court wa, quotod in Commission was referred to a decision of Madgwick, J. in Capr~l Alunum~~ The ue!n (1984) 154 CLR 606). In the matters be_fore me I consider ;;;epecl of the ap]Xoach of the criminal law to consistency of sentenchcmg:t (1:::result in~a manifest discrepancy such as to engender a Justifiable sense of •b·t· f r d to above as berng su as 0 Mr Facelli' s ultimate respun.s1 11ty as rt: er e gnevance.". In addition, as Madgwich, J. pomts out- ''Consistency does not necessarily mean equality.", b the onus of proof in cases where the Mr Pacelli was dismissed for reasons of speed and brelach o~ tpr~c~ on tl~e evidence that each of those reiisons have bt:en able lo be sustame . dures Although the employer does not ear . . . . d i . I h· 'h .ust or unn~asomwle, am sa is ie , dismissal 1s alleged to )e ars , uni d et In this case a warmng was . h ct· ~ issal and the reason related to con u . . h I of s 220 of the Act Mr Facelh was notified of the reason ~or is . 1~m le opportunity to respond to the allegations. H1s recourse to t e n terms •·· . . d t however Mr Facelh was given amp unnecessary given the seriousness of h1~ c~n ~~h r av"'n~e to have his case heard and considered. Company's Fair Treatment process proVIde a e ~ . . ~, I d' d h not show remorse but he failed to . f h 'omn"ss of the mc1dent. ~ ... ot on y I e . d h'l Mr Like \1r Roberts I found Mr Facelli to exhib~~~~/ 0 ~=e~;:;::; h:de ;~~id~~;;aining and awareness of satr ris:;d a:! ~~:;~u~~: ::no:,:: fact show any understandmg of the safety rdequn hi·s actions are evidence of a failure to absorb the safety messafgthe. _a ety stances of this case J am satisfied l . Id ·te some of those proce ures . 1 , . perty In all o e c1rcum Facel i cou rec1 . . k h .. £ t of his workmates and lus emp oyer ~ pm . ite the contrary. ~r Facelh put at ns t e sa e y tat the dismissal was not harsh, unjust or unreasonable. The application is refused. . h' ? l days of the date of release of this decision. The respondent is at liberty to apply for an order for costs wit m - Leave to apply for costs was reserved. Order accordingly, G.K. FISHER, Commissioner Released: 20 January J 999 Appearances:- , . t ·ustructed by Nall Payne Solicitors. • Mr A MacSporran (Ba.ms er) i d b M N O'Connor for the respondent. • Mr J. Murdoch (Bamster) mstructe y. r . 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE -- 2 of 2 --