Dun v Misima Mines Proprietary Limited [1995] QIRC 378 (1995) 150 QGIG 173

172 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [8 September, 1995 8 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 173 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s .295 - application for reinstatement Barry Robert Dun AND Misima Mines Proprietary Limited and Another (No 8809 of 1994) COMMISSIONER SWAN 25 August 1995 16303_1 DOC -- 1 of 5 -- 174 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [8 September, 1995 Application for Reinstatement Threshold Issues to be Determmed Identifying the Employer Location of Employment Jurisdiction of Queensland Industrial Relations Commission Challenged Matter Dealt with Under Principles of Private International Law - Extra- territoriality of Queensland Legislation Acts Interpretatwn Act I 99../ Matter Outside of the Jurisdiction of tht: Queensland Industrial Relations Commission In the Event Queensiand Jurisdiction Applies. Matter Determined Pursuant to Section 12. Division 5 of the Industrial Relations Act /990 Summary Dismissal Safety Requirements Breach of Safety Rules of Company Danger to Employees Superior Orders Valid Reason for Dismissal Found Breach of Natural Justice Compensation Ordered. DECISION The application before the Commission seeks relief in the form of reinstatement or compensation in lieu. pursuant to Part 12. Division 5 of the (ndusrrial Relations Act I 990 for an allegedly harsh and unfair dismissal. The applicant. \1r Dun, was employed in Papua New Guinea and directly worked for an organisation known as Misima Mines Pty Limited. This question of location raised a threshold matter to be detennined by the Commission. The respondent challenged the jurisdiction of the Queensland Commission to hear and determine the matter. It claimed that the matter lay squarely within the confines of Papua New Guinea law. In a separate decision of the Commission (not as presently constituted). a determination was made that the question of jurisdiction and merit be heard conjointly for reasons outlined in that decision. In following this course. a ti1rthcr threshold question arose. Who was the employer of the applicant? Was it Misima Mines Pty Limited or Placer Pacific Limited, a public company listed on the Australian Stock Exchange which owns 80% of 'vtisima Mines Pty Limited? Initially it was agreed that Misima Mines Pty Limited was the employer of the applicant, but subsequent to that the applicant had sought to join the two companies. claiming that. in the alternative. Placer Pacific Limited was the employer. On the question of joindcr. the Commission (as currently constituted). without finally deciding the point. determined that both companies be respondents to this claim. (see QGIG Vo! 149. No. 2. pages 123-125). The reasons for following that course of action are detailed in that decision and will not be repeated herein. The jurisdictional matter will be addressed first. While I have detem1ined that the Queensland Industrial Relations Commission docs not possess the jurisdiction to hear and determine this matter. if I am wrong on that point, I have proceeded to determine the merit argument pursuant to the dismissal provisions of the Industrial Relations Act I 990 applicable at the time of Mr Dun's dismissal in July 1994. Jl1RISDICTIO!'J The respondents in this matter (both Misima Mines Pty Limited and Placer Pacific Lnnited) have challenged the jurisdiction of the Queensland Industrial Relations Commission on the basis that the !ndustnal Relations Act 1990 does not apply to this situation lt 1s claimed that the relevant Jurisdiction in ,vhich to litigate this claim is that of Papua New Guinea. ~ In a separate hearing before the Commission as currently constituted, it was determined that Misima Mines Pty Limited and Placer Pacific Limited be joined as respondents 111 this matter. It should be stated that Misima Mines Pty Limited at no time believed it was subject to the jurisdiction of the Queensland Industrial Relations Commission. /\t the time of determining that point. I made the following comment:-- •• ... .I have not had the opportunity of hearing any detailed debate on an) of the material put before me in this preliminary hearing ... ". The factual matters concerning the relationship between Misima Mines Pty Limited and Placer Pacific Limited have been detailed in that earlier decision and need not be repeated in this decision and this component of the decision should be read in conjunction with that earlier decision. Misima Mines Pty Limited is a Company incorporated in Papua New Guinea and subject to the laws of that nation. It is not a Company registered in Australia. For present purposes, it is sufficient to note that Placer Pacific Limited O\\.TIS 80% of Misima Mint:~. In tem1s of the relevant Law applying to the type of relationship existing between Misima Mines Pty Limited and Placer Pacific Limited. it is clear that the Courts have adopted the approach that companies in a group must be treated as independent entities. The case law on this point is explicit In Walker v Wimbourne (137 CLR I at 6-7), Mason J states: "Indeed, the emphasis given by the primary judge to the circumstances that the group derived a benefit from the transaction tended to obscure the fundamental principle that each of the companies was a separate and independent legal entity ... ". In Anz Fxecutors & Trustees Company Limited v. Quintex, [1991] 2 QdR 360, McPherson J stated (at 365/20): "Under a different legal system it may be that each company in a group would be jointly and severally liable for the debts of every other. But that is not the course the law has taken. The decision in Walker v. Wimbourne is binding authority for considering each company in a group as a separate entity having assets and liabilities of its own that are distinct from those of all the others .... " (see also, Charter Bridge Corporation Limited v. Lloyds Bank ([ 1969] 2 AUER 1185 to 1194: Industrial Equity v. Blackburn (137 CLR 567 at 577); Dalhold Investments Pty Ltd ( 199 I) 31 FCR 587; Equ1zr Corp Financial Services Limited v. Equizv Corp Financial Services Limited and ors (9 ASCR 199): Quintex v. Schroders (3 ACSR 267). During the course of this hearing on the substantive issues of jurisdiction and merit nothing has unfolded by way of further submissions or evidence which convinces me that any body other than Misima Mines Pty Limited was the trut: employer of the applicant. I accept the submissions made on behalf of Misima Mines Pty Limited. The contract of employment was entered into by the applicant and Misima Mines Pty Limited. l"he terms of the contract are relatively straight forward. The opemng provisions of the contract are as follows:- 16303_100C 8 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 175 '' 1.1 "This letter of Contract is to confirm our mutual understanding of the tern1s and conditions applying to your employment with Misima Mines Pty Limited. (the "Company"). 1.2 Your employment is as Mill Operator with Misima Mines Pty Limited ..... ". There is nothing within the terms of the contract, as well as no further submissions of note (save for references to the operation of the Placer Pacific Superannuation Scheme: Placer Pacific Health and Dental Care Schemes and point of origin as Cairns) which would suggest that the linkage with Queensland or the Queensland Jtmsdiction would or could apply sufficient to question applicable Junsdiction. Having taken into consideration the submissions raised in the earlier hearing before the Commission and matters raised generally throughout the course of these hearings, I determine that Misima Mines Pty Limited was the employer of the applicant. Mr Dun. Location Misima Island is part of the independent nation of Papua New Guinea. Gold is extracted from the mine site by Misima Mines. rial effect? As a proposition of general law, in Broken Hill South v Commission of Taxation ([1937 J 56 CLR 33 7 at 3 7 5) the following is stated:- "lhe power to make laws for the peace. order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicile. residence or otherwise but it is within the competence of the State legislature to make any fact, circumstance. occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the pcrson to the territory. The relation may consist in presence within the territory, residence. domicile. carrying on business there. or even remoter connections. If a connection exists. it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of junsdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power but it is of impo1iance upon the question of validity that the liability imposed is. or may be, altogether disproport1011ate to the territorial connection or that it includes many cases that cannot have been forest:en. ". Were extra-territorial powers to be enacted in Legislation. the Australia Act I 986 s. 2(1) permits such a cmirst: of action. The question to be asked is whether the Industrial Relations Act 1990 purports to t:xercise such powers. Before dealing directly with the Industrial Relations Act 1990. the ACls Imerpretation Act 1994 at s. 35 states: "ln an Act (a) a reference to an officer. office or statutory body is a reforence to such an officer. office or statutory body in and for Queensland: and (b) a reference to a locality. jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of Queensland.". This provision states the general limitation imposed on all statues of the Queensland Parliamem. It is contended that where the Industrwl Relations Act I 990 refers to employment then that should be taken as referring to employment in Queensland (see "or other matter or thing" above). The provisions of the Industrial Relations Act 1990 refer at varying sections to the regulation of the industrial relations system within Queensland (see for example sections 3 and 5). Further, particular reference to subdivision 2 of Division 5 of the Industrial Relations Act I 990 highlights the nexus between the wording of the Legislation and the State of Queensland. as well as an intent not to go beyond the boundaries of Australia (for example. sees. 307). In consideration of these factors. my view is that the Industrial Relations Act 1990 does not purport to have extra-territorial effect in relation to employmen1 outside Queensland. Which Law applies to th~..-CO!!~ent between the Applkant nd Misima Min ·'? !his question must logically be next answered. I[ as I have already dete1mined, Misima Mines Pty Limited is the employer of the applicant and the Queensland Legislation does not have extra- territorial etfoct. can it be said that the Commission is empowered, under the circumstances of this case. to make a determination on the matter of the dismissal of the applicant by Misima Mines Pt) Limited? This question must be detcnnincd having regard to the principles of private international law. The respondent outlined what it believed to be the factual arrangements which existed between the applicant and Misuna Mines Pty I .imited. These are as follows:- the employer is a PNG company; the employer carries on business in PNG: the contract of employment with respect to the position Dun held immediately before dismissal was entered into inPNG; the law of PNG applies on site; PNG has an Industrial Relations Act which applies: employees on site are members of a PNG trade union; the employment contract was stamped in PNG; the Applicant pays income tax in PNG: Misima pays income tax in PNG: Misima does not carry on business in Australia; one of the points of origin for employees of Misima is Cairns: Mi~ima visits Australia to intervic\.\- Australians with respect to working in PNG." The first question to be asked is whether there was any provision in the contract as to which law would apply regarding enforcement of the tem1s of the contract. The contract between the applicant and the respondent docs not deal with this issue. !"his factor is not fatal to the clann of the applicant that Queensland Law appltes (see Afvnott v Barnard l 1939] 62 CLR at 68). however further 111vest1gation is required. 16303_1.DOC -- 2 of 5 -- 176 QUEENSLAND GOVERN~ENT INDUSTRIAL GAZETTE [8 September, 1995 Employed by Misima Mines were employees from different countries. The respondent claimed that. were the law of Queensland to apply. then arguably the law of all other relevant countries \Vould apply as well. This could lead to confusion ln Sayers v International [)ri/lingCo :\T(l971) I WLR 1176 at l 183ll-1184B). Sumner U states:- "The ordinary intelligent prospective servant reading through this contral:t would. I think. recognise as indeed Mr Sayers did that the form of contract could well be used for engaging an ltal!an. a Spaniard. a Greek and an Englishman or any other European. It could not be supposed that iC for example. an Italian were tu he engageu in Italy under this form of contract he would expect the contract to be /:!Overncd by English ,)r even Italian law any more than would the Dutch Company. The plaintiff entering into this f<)m1 of contract in England must. I think, have recugniscd that when he ½ent out to l\igeria or to whatever other part of the world he might be sent. he could well find himself working on a rig with an Italian. a Greek and a Spaniard. He could not have believed that his contractual rights would be governed by a different law from that of lm fellow employees. still less that there would be five different laws governing the contractual nghts of, say, five different employees. I r it were so, it would be awkward for the employers .. awkward for Lheir employees, and difficult to give the contracts ordinary business efficacy.". In this case, employees were engaged by )...1isima Mines Pty Limited to perform work in Papua New C,uinea from differing nations. The pro.-;pect of confusion would be very real were the law or the county of origin to apply. The next question to be addressed concerns the locality of employment. The respondent relied upon the abovementioned case of Jfvnott and stated:- "In that case a contract of employment was cmered mro in Victoria between a Victorian worker and a Victonan building contractor. The worker was cn?,agcd to work at a buildmg at a neighbouring tmvn in New South Wales. The parties intended that Victorian law should govern their comract. Notwithstanding those facts the dependents of the worker \Vere not entitled to recover compensation under the Workers' Cornpensatwn Act (Vic) in respect of his death in Victoria \Vhich occurred as a result of personal injuries by accidem c;usrnined hy him at the building in New South Wales.". Despite the proper law of the contract being Vi..:;torian, a court followed a long line of cases deciding that because the accident happened in New South Wales, the Victorian Act did not apply. In dealing with the Workers' Compensation Act 1990 Latham CJ said (atp77)- "There is nothing in the statute to support the argument that the statute should be read as applying to debts in Victoria of any per:;ons ,.,ho were employed under any contracts where, er made to do work in any place wheresoever The analogy is dravm by the respondent that "there is nothing in the Act to support the argument that the statute should be read as applying to employers and employees in Papua New Guinea who were engaged under a contract (½herever made) to do work in PNG". In Jfynott. Dixon .I staied at p. 91:- ''The general words of the statute musr obviously receive an application rcstncted teITitorially: they are not meant. for rnstancc. to confer upon a workman suffonng mJury by accident in New Zealand arising out of and in the course of an employment in New Zealand a right under Victonan law to compensation from his New Zealand employer. But it is not easy to discover the basis, or the nature, of the particular restriction to be applied. Workers' compensation is a liability neither in tort nor 111 contract. It is a responsibility positivt juns and is annexed by law to a relationship, that of master and servant. The parties may choose whether they will enter into the relationship; but if thi.:y do the employers' liability for. and the worker's and his depcndents' corresponding right to. compensation are legal consequences which are independent of and cannot be controlled by their agreement. It appears to be natural to say that the statute is confined to ·employments' within the territory. The 'employment' is the continual relationship. not the engagement or contracting to employ and to serve. It is the service; that Lo which lord Atkinson applied the expre-.sion •carried on·.". Dixon .J at p. 92 states (having quoted a United States authority in Cameron v. Eliis Comrrucrion):- "The principle upon which the court went was that the ob Iigations of the ~were made an integral part of the relations of employer and employee which the State I .egislature undertook to regulate and that it did not assume to regulate employment outside the State 'the problem presented here is whether the State has undertaken to regulate the claimant's employment at a fixed place in Canada. Nothing in the statute suggests that the Stale of New York has attempted to stretch f<.)1th its arm to draw within the scope of its own regulations the relations of the employer and employee in work conducted beyond its borders. Hazardous employment here is regulated by the Workmans' Compensation L1w~ hazardous employment elsewhere. though connected with the business conducted here does not come within its scope ..... thc test in all cases is the place where the employment is located.· When the course of employment requires the ½orkman to perform work beyond the borders of the State, a close question may at times be presented as to whether the employment itself is located here. Determination of that question may at times depend upon the relative weight to be given under all the circumstances to opposing considerations. The facts in each case rather than juristic concepts. will govern such dctcnnination. Occasionally transitory work beyond the State may reasonably be said to be work perfonned in the course of employment here: employment confined to work at a fixed place in another State is not employment within the State. for this State is concerned only remotely, if at all. with the conditions of such employment.". in all, the respondent assens that any linkage between the applicant and employment in Queensland iS ''comparatively insignificant and irrelevant". I concur with these submissions. The applicant relies upon an assertion that Queensland law is applicable. The th,ust of the applicant's case is that the connection between the applicant and the Queensland jurisdiction is sufficient to bestow up\)11 the Queensland Industrial Relations Commission the jurisdiction needed to determine this matter. In this vein, the connections go to questions of residence. travel. point of origin and payment of wages and leave. Whilst it 1s true that the applicant returned to Australia when not pcrformmg actual work for Misima Mines Pty Limited and was paid ctunng that penod of time and that he repmted for work at Cairns immediately prior to embarkation to Papua l\ev, Gumea at the start of his working roster ( amongst other mailers). these connect1ons. 111 my view. arc peripheral rather than mtegral to his contractual 163<DJ.DOC 8 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 177 employment relationship with Misima Mines Pty Limited. The work for which Misima Mines Pty Limited employed the applicant was performed solely in Papua New Guinea. Consequently. I do not view the links between his employment and the State of Queensland as being sufficient to seriously question whether it could validly be argued that the employment of the applicant was effectively camed out in both Papua New Guinea and Queensland to a degree which would pennit access to the Queensland jurisdiction. Therefore, for the reasons cited, I determine that this application falls outside the jurisdiction of the Queensland Industrial Relations Commission. In the event that I have wrongly detennined the question of jurisdiction, and it is accepted ultimately that the Industrial Relations Act I9YO applies, I have proceeded to determine the matter according to that Legislation. DETER\1INATION PURSUANT TO THE DISMISSAL PROVISlOl\'S OF THE INDUSTRIAL RELATIONS ACT 1990, History Surro1.rnding the Dismissal of :\1r Dun Mr B Dun was employed by Misima Mines Pty Limited from January 1989 until the date of his dismissal on July 14, 1994. (Mr Dun was paid until the end of his work period which occurred on July 26, 1994). By profession, Mr Dun is an 1:clectrical tngineer and. while employed by the respondent. occupied the position of Mill Operator for Misima Mines Ply I ,imited. situated in Papua New Guinea. Other than for the incident which occtmed resulting in the summary dismissal of Mr Dun, the applicant had a good work background with the respondent. Mr Dun appears to have been well liked and generally competent in the performance of his work An incident occurred on July 9. 1994 which resulted in the summary dismissal of the applicant. The reasons cited for the dismissal were "Termination for cause: breach of Safety Rules". The particulars surrounding the incident of July 9, 1994 arc detailed hereunder. In order to appreciate the folllming :-iumrnation. Sal'ety Rules operative at Misima Mines Pty Limited worksite need to be explained. Because of the si1e of the mine and the nature of the work undertaken, it is understandable that safety rules arc paramount. This fact is not questioned by either party. For the protection of employees. Personal Danger Tags are the most recognised and widely used means of isoiation and personal protection for employees. My understanding of their use is that employee:,,. working at varying locations around the mine, place their own Personal Danger Tag at a specified place and only they are pennitted 10 remove the tags. The rationale for this is that while that Tag is ''live" (ie not personally removed by the employee). relevant personnel on site should be aware that employees arc working on the site. This practice affords employees the surety of knowing that as far as is possible, they will be able to perforn1 their work safely at various locations within the mine. This method of operation appears to be at least a minimum safety practice at most mine sites referred to durmg this heanng. Documentation tendered by the respondent states as much and I accept submissions which assert that all employees at mine sites arc more than familiar with these requirements. The actual Personal Danger Tag has the following words emblazoned upon it: "DANC,FR DO NOT REMOVE THIS TAG A MAN'S LIFE MAY I3E ENDANGER[D To do so will render you liable to severe disciplinary measures and/or legal action. lt is here for a purpose and may not be removed except by the person who placed 1t. or as provided for in part one of the safety lockout procedures". Similarly, Misima Training Manuals (specifically the Mill Operator Training Clearance Certificate Course manual) refer to a Blue Production Tag which has on it the words "Do Not Operate". In relation to this and the Personal Danger Tag. the manual states:- "The placing of various types of •Do not operate· tags is an important pait of the clearance cettificate procedure. The placing of tags without the associated issuing of a clearance certificate docs not provide acceptable safe \Vorking conditions. The tagging system used at Misima Mine:; provides a double level of safety because it requires two tags on isolation poirns ( one blue production tag and one red personal tag). Because of our double level of safety we have a special column on our clearance certificates titied 'Isolation pornts rngged' We have this column so that maintenance workers know where the isolation points are for them to hang their personal red tags Because of our detailed knowledge of the process and the status of various parts of the process flow we understand which isolations are necessary. however maintenance workers may or may not know which points to tag so they rely on our knowledge. It is precisely because of their reliance on our knowledge of the process that our isolations, production tagging and clearance certificate issuing must be absolutely perfect every time. The third paragraph of page 15 of the safety lockout procedures states: • Production isolation tags give no personal protection. The production isolation tag may be removed at any time and the equipment made operational without you being aware of it. This situation could only arise if either no cleardncc certificate had been issued or it had been signed off as completed before it was actually completed and in both of these cases the clearance certificate procedure would have not been followed. Blue production tags placed prior to and ror the purpose of issuing a clearance certificate could not be removed without the signed on maintenance workers knowledge and approvai. In fact the only time a blue production tag can be removed before the clearance certificate is signed off as complete is when the signed on maintenance worker requests production staff to remove their tag and energise the equipment for a test run bcf<)rc repairs arc completed. In this case the safety of the maintenance worker and the integrity of the still signed on clearance certificate is covered by the fact that the: production worker must personally stay at the equipment with the maintenance worker while the test run in conduckd and will immediately isolate the equipment and replace the production tag as soon as the test is completed. Remember, hlue production tags are r1lways the first to be placed and the last to be removed.". The above is but a sample of the detailed instructions made known to employees by the employer The Handbook contained numerous references to safety requirements on site. It is against this background of training and practice that the incident of July 9. 1994 must be weighed. While on duty on July 9. 1994 as Mill Foreman. the applicant became aware of a fire which had started in a thickener feed tank. This foed tank was rubber lined. As it transpired, the fire was extinguished by flooding the pipework and thickener feed tank with slurry. This decision was made by Mr Dun. in conjunction with at least another colleague. It was this decision taken by the applicant. and the ramifications which flowed from iL which led to the summary dismissal of the applicant. 16103 _ l .DOC -- 3 of 5 -- 178 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [8 September, 1995 During the course of the flooding. and unbeknown to the applicant. the prospect of serious injury being caused to employees of a Surface Crew was real This Crew were. at the time of the flooding, replacing a portion of the tailings line ( at some distance from the area in which ,\;fr Dun was working). Were the slurry to have impacted with these employees (which. on the evidence I accept, was a real possibility). these employees may have been scnously mJured. The direct evidence of one of these employees, Panta Ailai is as follows:-- "We had positioned the reducer spool and had put the first couple of bolts in place but not screwed the nut on when I heard a sound coming from the pipe which I thought was slurry tumbling down the line and air being pushed ahead of the slurry. When I heard this I instructed the dogman to tell the crane operator to lift the spool clear after Dailalie had removed the bolts which had been put in place in the collars of the spool. I then instructed Dailaiie to get clear of the pipe. Dailalie and I were clear of the opening in the pipe for only a couple of seconds before the slurry started coming out of the pipe. The slurry flow was coming out of the whole of the pipe. It was a full flow ....... Before the slurry started to flow there ½as no warning of what was to happen ..... My whole crew and I were very upset about what had occurred because we could have been badly injured. I have worked at the Mine since it started. I was always taught that if you hang a safety tag on a piece of equipment that protects your life ...... We are all satisfied with the action taken by Misima Mines agamst Mr O'Brien and Mr Dun. Our confidence has been restored in the safety tagging system.". These employees had in place their Personal Danger Tags (and had not personally removed them) Aside these Personal Danger Tags were Production Isolation Tags. During the course of the fire, a determination had been made hy Mr Dun and a work colleague. Mr O'Brien to remove both tags in order to pennit the slurry to extinguish the fire. It was Mr O'Brien who removed the Personal Danger Tags and Mr Dun who removed the other. Both employees were summarily dismissed. A complicating factor which emerged during the course ot' the activity surrounding the fire.. was caused hy the failure of an isolating kmfe valve. Mr Dun claim~ that he believed at the time that the valve was fully operational and, as such. even with the removal of either Tag. there should have been no cause for danger to personnel because the slurry tlooding would have been isolated to an area in which no employees were working. The evidence of the respondent on this point is that the knife valve had been inoperative for an extended period of time and this was a fact of which Mr Dun should have been aware. The inoperability of the knife valve ensured that the slurry found its way to where the Tailings Cre½ were working and created a situation of immediate danger. There is evidence. which l accept. that the force of the slurry was sufficient to have caused severe injury or possibly death to any person on whom it may have fallen. I say this because the mathematical calculations referred to during the hearing indicate that the flow through the tailings pipe is tonnes per minute and below the tailings pipe is a steep fall. Mr O'Brien held a more senior position to that of \1r Dun. He was the Senior Maintenance Engineer responsible for the maintenance within the plant during this particular occasion. Notwithstanding Mr O'Brien's position, it was the respondent's opinion that Mr Dun was the more experienced operator and. while Mr O'Brien had made the decision to remove the Personal Danger Tags. Mr Dun had the opportunity to nullify that decision and chose not to do so. By Mr Dun's inaction in failing tu correct Mr O'Brien's decision, and detem1ining to remove the Production Isolation Tags himself: he was seen to have condorn:d a decision which had the pot<:ntiai to cause serious hann to other employees. The respondent believed that it was paramount for Mr O'Brien and ,\;fr Dun to have ·satisfied themselves that it was safe to do what they did notwithstanding the fact that it was a breach of Safety Procedures·. This factor, ie the degree to which one could satisfy oneself that certain actions were safe, became the pivotal point to he judged by the employer in its treatment of Mr Dun. It should be noted that the test to be applied appeared to differ between different respondent witnesses. In the mind of some. the test went beyond satisfying oneself that safety was assured, to stating that the removal of the Tags by persons other than the employees to whom the Tags belonged was a dismissible offence. I am satisfied. however, that the respondent. generally. accepted that the applicable test was the one formerly mentioned. It is not unreasonable to accept that it is against this criteria that the adions of the employer in dealing with the applicant should be judged. It is not for this Commission to determine what safety standards employers should apply in particular circumstances. Government Legislation and/or practice and precedent within an industry or safety regulations established by particular businesses determine those issues. In this case, I accept that the safety standards adopted by the respondent represented common standards set throughout the industry. There may be occasions where the standards set by an employer are simply unattainable by employees. This is not one of those occasions. I have no doubt that the safety standards applied by the respondent at its site were well known and understood by the applicant. As wclL I accept that non-observance of such standards carried -with it ramifications understood by all employees. The respondent daimed to have investigated the incident thoroughly and. based upon the evidence it elicited from relevant employees together with an examination of the applicant's own repn!1. it made the determination to summarily dismiss the applicant. This dismissal was relayed to the applicant while he was home on leave in Townsville. North Queensland. The applicant. in his defence. stated that. when faced with the reality of a fire which appeared to have been started hy boilermakers pcrfom1ing work on the rubber lined tank or pipe, he had to consider his optious quickly. Tbe option he chost: was to run the pumps through the pipe work and, as a consequence, into the tank which was on fire. The applicant was fearful that the boilennaker may have been cau1.1,ht in the fire as he claims that he could not see him. On attempting to start the pumps, the applicant had found that all four pumps had been isolated and tagged. On the pump isolators v,:ere the six danger tags (of members of the tailings crew) and one blue production isolation tag. The applicant. believing that he knew to whom the tags belonged, claims to have made attempts to contact those persons. Each attempt failed. l'.pon evaluating whether the pumps should be started. the applicant claimed to have given consideration to the following factors:- That the isolation knife valve would be closed thereby preventing any slurry from entering the tails line and posing a potential danger to the Tailings Crew: That water had already passed through the pipes as a result of the use of the fire hose; That the owners of the danger tags were not working on moving equipment: That employees would not be inside any of the pipes: That. upon seeing a number of people standing in the vicinity of the tails pipe during the course of the fire, the applicant had believed these persons to be the Tailings Crev,: !6303_ I .DOC 8 September, 1995 J QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 179 That it was possible that the boilermaker who was working on the fcedweli was still in jeopardy. Upon realising that, in order to feed the slurry through the pipes, the danger and production isolation tags would have to be removed. the applicant claims that he asked Mr O'Brien (his superior) whether Mr O'Brien could remove the tags. The applicant states that this question was asked in the context of whether Mr O'Brien believed that he had the requisite authority to remove the tags. Mr O'Brien determined to personally remove the danger tags, with the applicant determining to remove the production isolation tags. The pumps then commenced discharging slurry. It was only after a short period of time that the applicant became aware that the isolation valve was not working properly and, as a consequence, the slurry was proceeding down the pipes. The applicant immediately ;:ictivated the emergency stop button. The applicant believes that. in consideration of the above explanation, his actions were reasonable and understandable under the particular circumstances. The respondent. in analysing the grounds upon which the applicant seeks to rely. details the following propositions for consideration:- I. the suggestion that a boilermaker was being incinerated; 2. that it was O'Brien who removed the personal danger tags and Dun only removed the isolation tag: 3. that the workers on the tailings line were out of harm's way; and 4. the plant was in danger. The respondent asserts that Mr Dun was in a position to ascenain quickly whether the boilermaker was still within the tank as it was Mr Dun who was responsible for issuing a Vessel Entry Permit to this employee. In the event that Mr Dun, in the urgency of the moment, had forgotten this fact. he could easily have checked as the documentation was kept within the Control Room where he was working. The respondent questions the fact that Mr Dun could produce no evidence to suggest that he had in fact been looking for the boilermaker. Instead, the respondent asserts that Mr Dun would have been able to see the boilermaker fighting the fire. More importantly. the respondent states that there is no particularity within Mr Dun's statement as to whom he allegedly spoke to regarding the hoilem1aker and that it was not put to any of the respondent witnesses that any inquiries were made by Mr Dun concerning the boilermaker. This is not to suggest that Mr Dun proceeded regardless of the boilermaker's safety, but that he may well have been aware that the hoilennaker was in fact safe. I prefer the respondent's version of events in this regard. Regarding proposition (2), which could be classified as "superior orders". it is the applicant's claim that Mr O'Rrien was his superior and that he deferred to his position within the Company. The respondent claims that Mr Dun and Mr O'Brien acted in concert and that merdy because it was Mr O'Rrien who removed the danger tags. that is not sufficient to exonerate Mr Dun. It is claimed that ''The simple fact of the matter is that by ordermg the pumps to be turned on alter knowing of the wrongful removal of the tags, Dun put the lives of the national workers at risk and it was only by the qui<:k thinking of Panta (a member of the Tailings Crew) that a disaster was avened" I have little difficulty in accepting the respondent's views on this point. Mr Dun asserts that he would not have removed the danger tags himself. however, having seen them removed. he pro<:eeded to remove the production isolation tag. The fact that he attempts to 155225-14 draw a distinction between these two actions is flawed reasoning from my perspective. Mr Dun held a sufficiently senior position within the organisation and, notwithstanding Mr O'Brien's superior position. he could have detennined to follow Company policy and refrain himself from removing the production isolation tags and activating the pumps. Concerning the proposition that the tailings crew were safe, it was eventually agreed between the parties that the distance between the control room and the tailings point was reasonably considerable. Mr Dun claims to have seen people standing on the tailings point and. believing those persons to be the Tailings Crew, he felt "satisfied" that all who potentially could have been endangered. were safe. As it transpired, the persons Mr Dun may have seen on the tailings point did not include all of the members of the Tailings Crew as Panta, together with two work colleagues. were working on the ptpe. The point stressed by the respondent is that it is this type of ad hoe assessment about the safety of employees which necessitates the stringent safety requirements in place at sites such as Misima. l was unimpressed hy the applicant's evidence that he could have been sufficiently satisfied that all employees were safe at the time of turning on the pipes. ~ir Dun relies upon an argument that the plant was in danger during this period and, because of the urgency of the situation. he was required to make fast and effective decisions. There is sufficient evidence before the Commission to suggest that the plant was not in as dangerous a position as Mr Dun would have the Commission believe. This view. of course, must be weighed against the situation as assessed by Mr Dun, at the time. The evidence of all witnesses, however. strongly suggests that the situation was not as acute as stated by Mr Dun. I favour this evidence over that of the applicant's. I have dealt in my assessment of the situation with the more serious issues raised by the parties. I have not made reference to each and every aspect of evidence put before the Commission. This case had taken some considerable time to hear, many witnesses were called to give evidence and the assessments I have made have been based upon a full consideration of the evidence of these witnesses. The Legislation which applies in this case is the Industrial Relations Act 1990 (including amendments up to Act No. 12 of 1994) which was operative at the time of Mr Dun's dismissal. The relevant dismissal provisions of the Industrial Relations Act I 99() (Part 12, Division 5) require, at s. 291.( 1) that- "An employer must not dismiss an employee - (a) in contravention of an order under section 302; or (b) unless there is a valid reason (i) related to the employee's conduct, capacity or performance; or (ii) based on the operational requirements of the employer's undertaking. establishment or service. Section 291.(2) imports the requirement that a reason is not "valid" if the dismissal of the employee is "harsh, unjust or unreasonable". Section 292.( 1) relates to affording an employee a "reasonable opporturnty" to defend against allegations being made and 292.(2) states that this opportunity can be inapplicable if the employer "could not reasonably be expected to give the employee the opportunity". 16303_1.DOC -- 4 of 5 -- 180 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (8 September, 1995 The respondent states that summary di smissal was open to the employer in this situation. In relying upon th is submission. the respondent summarises its views by stating:- "the re was no need for the pumps to be started; the Applicant knew that there were a number of em ployees who had placed their lives in the hands of other peop le by placing their own personal danger tags on machinery; the Applicant witnessed the removal of those tags; the Applicant removed the production isolation tags; the App licant cou ld not have been certain to any responsib le level that any person was remov ed from danger before de- isolating the pumps.". After the event of the fire. the respondent undertook to investigate the matter fully. Th e applicant had completed his own report of his actions but it appears from the evidence that the applicant was neither shown or infonned of the particulars of this in vestigation, specifically as it related to other employee's versions of even ts. Mr Dun did continue working for a short period of time before returning to Townsville to take his leave. It was while he was at his home in Townsville that he heard of his tennination. The app licant claims that not on ly did the employer not have a valid reason to d ismiss him but that he was denied natural justice in the manner in which his tennination occurred. From my assessment of the evidence, I believe that the emp loyer did have a "valid reason" for which to dismiss the applicant. Mr Dun's actions at the time of the fire did not befit one vested with the responsibility of Mill Foreman. The safety requ irements were such at the site (and operative within the industry generally) that Mr Dun, in pursu ing the course of action he chose, exercised a grave error in judgement. Were it not for the good fortune of some employees, the ramifications of this error of judgement cou ld have been devastating. lt matters little that Mr O'Brien exercised the same error of judgement. Mr Dun was an experienced employee who was charged with substantial responsibility, sufficient for him to be expected lO have acted otherwise under the circumstances. Section 292 (2) of the Industrial Relations Act 1990 envisages certain types of circumstances where the right to a reasonable opportunity to defend against allegations made is inapp li cable. l11e relevant question here is whether the employer believed that it had enough info nnation, both as a result of Mr Dun's own report on his actions and other employee's reports. to believe that it could summarily dism iss without discussing the matter further with Mr Dun. Section 292 envisages that the infonnation relied upon by the emp loyer to support the dismissal must be information within the emp loyer's knowledge at the time of the dismissal. How otherwise could the employee be given a "reasonable opportunity to respond" to the allegations being made? Use of knowledge ga ined after the event to justify the dismissal generally would deprive the employee this opportunity. I acknowledge comments made by von Doussa J in Lane v Arrowcresl Croup Pty lid 27 FCR 427 at 456, namely:- ·' Jn my opin ion it is still open to an employer to jus tify a dismissal by reference to facts not known to the employer at the time of the dism iss al , but discovered subsequently, so long as those facts concem circumstances in ex istence when the decision was made. Whether the decision can be so ju s ti fied will depend on all the circumstances.". ln this instance, the respondent has not stated that the removal of the production isolation tag in itself wa5 a dismissible offence (al though there was evidence that this shou ld have been the case). Had this been the case, then s. 292 (2) would have been satisfied in this instance. Rather, the employer believed that Mr Dun should have satisfied himself that all em ployees were safe. To be able to satisfy themselves that this had occurred, required an investigation by the employer. The employer. in assessing whether all employees had been safe, was not entitled to rely solely upon the report of Mr Dun. It seems logical, as we ll as fair, in these circumstances, that Mr Dun should have been pcnnitted to respond to infonnation and comments that may have been prov ided by other employees. In the end, Mr Dun's re sponse to such material may have been to no avail, but this wou ld have been an unknown factor at the time. Under these circumstances, I believe th at wh ile a "valid reason" existed for the dismissal of Mr Dun. the employer's actions taken at the time deprived Mr Dun of procedural fairness wh ich the legislation requires. Consequen tl y a breach of the Division has occurred as a result of non -compliance with s. 292. The Commission can award relief to the app lican t (sec s. 297) for dismissal which is contrary to Part 12 Division 5 of the Act. In my view reinstatement would be unworkable. I accept the evidence of respondent witnesses, and specifically that of Panta Ailai, that employees would feel unsafe working with Mr Dun. l believe the potential for thi s fear to be genuine. I am then left to cons ider the question of compensation. Mr Dun was paid some 12 days over and above what he had camcd to the date of his dismissal. In the circumstances of this case, hav ing regard to the particulars surrounding the reasons for the dismissal of Mr Dun; the difficulties he may encounter with future employment and the weight that the Act attributes to the rights which he was denied by the actions of the employer, I would award to the applicant an amount equal to $700. Such amount is to be paid to the applicant within a period of two weeks from the date of release of this decision. In Bos1ik (Ausl) Piy Ltd v Gorgevski (No I) ( 1992) 36 FCR 20 at 35. Gray J said:- "There may be cases in which the conduct of an employee has been so gross that the court is able to be satisfied that no reasonable employer could have taken any step other than to dismiss, whether or not all appropriate procedural steps had been followed. In such a case, it may be appropriate to award damages on ly up until the time o f the judgement, or such othertime as might have marked the completion of appropriate procedural steps.". Under this rationale. Mr Dun may we ll have remained in employment for at least another week. This period of time would have permitted Mr Dun to respond to the allegations which had been made. However. having regard to the material now available, which would have been put to Mr Dun had the employer acted appropriately, I would still find that Mr Dun 's tennination was valid. The application is successful is so far as a limited award of compensation is ordered. I order accordingly. D.A. SWAN, Commissione r. Appearances:- Mr C. Wall Q.C. instructed by Nehmer Davenport Dean McKee Solicitors for Barry Robert Dun. Mr R.I. Hanger Q.C. and with him Mr G. Martin, instructed by Boulton Cleary and Kem So licitors for Misima Mines Pty Ltd. Operative date: NIA Decision - Reinstatement Application Released: 25 August I 995 16303_1. DOC 8 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 181 .. -- 5 of 5 --