Dunstan v Mount Isa Mines Limited [1994] QIRC 83 (1994) 145 QGIG 680

680 QUEENSLAND GOVERNMENT JNDUSTRIAL GAZETTE [25 March, 1994 #################################################### QUEENSLAND INDUSTRIAL RELATIONS COMM ISSION Jndus cri al Rela1ions Ac1 1990 s. 174 - application for reinstatement Laura Cecilia Dunstan AND Mo unt I sa M in es Limit ed (No. 86 72 of 1993) M OUN T ISA M IN ES LI M I TED AW AR D COM MI SS IONER BECH LY 14 Ma rc h 1994 Termination of Em ployment - Dismi ssal - Re instatemen t - Internal App eal Process - Ev idence - Em ployee Performance - N egligen ce (E mp loyee) - Safety Procedures - Counselling - App lica tion Refused. DECISION Ms Lau ra Cecilia Dunstan has, by this application, so ught reinstatement to her former posi tion of Electrical Fitter Mec hanic with Mou nt I sa Mines Lim ited (M IM). Ms Dunstan comp leted an apprenticeship with MIM as an electric al fitter/mechanic and on 31 Janu ary 1989 commenced employment as a tradesperson in that trade. On 14 September 1993 Ms D unstan' s employmen t w as term inated, the reason giv en be i ng "gross negligence" on her part i n rhe performance of her dut i es and fol lowed an inc ident i nvolving the w iring ot a th r ee ph ase motor on 10 September 1993. M s Dunstan ini tiated an appeal by way of the in te rn al MIM appeal process and the three stage s of appeal were co nducted on 20 September and 4 an d 8 November 1993. Th e appeal w as rej ected by th e Company and an application for reins ta tement under D ivi si on 4 Part 11 of the Act wa s filed on 12 Novemb er 1993. Th is applicatio n was heard i n Mt. Isa on 21 and 22 February 1994. In addition to her own evidence, su ppo rting evidence w as given by Stephen George John and Karl Richardson, both electrical tradespersons employed by MIM. Ev idence called in support of the Com pa ny's act ion was drawn from M ichael Jos eph Gi lles, Copper Sme lter Manager; Barry Jo hn Boyle, Copp er Sme l te r Main te nance Su perin ten dent; and Terre Charl es Simmons, Registered Electrical Supervisor for MIM . Th e argument on behalf of Ms Du nst an was th at the penalty of te rm inat io n of employment was harsh and unju st i n thal lhe inc ident oi 10 Sep tember 1993 was not of such a serious nature as to warrant te rmination. Some reference w as made to other such similar i nc i de n ts i nvo lving other persons w here ter mi nation did not ta ke pl ace. However, the Company argued that this inciden t was 1he l as t of fo ur recorded incident s, ea ch of whic h in i tse lf was se ri ous and invo l ve d a breach of safety procedu r es followed by coun sell ing an d, taken together provi ded a re aso nable basis for termination. It i s appropriate to summarise, from the evi dence, the incid en ts referred to by th e Company:- Cut Off Saw On Friday 25 June 1992, approximatel y six mon ths prior to Ms D unstan' s completion of appr en tice sh ip, some employees us ing a c ut off saw compl ained 10 her of lack of power to the saw. At that time she was p assi ng the she d hou sin g the saw on her way to re join her tradesperson. It appears that electrici ans emp loyed by a subcontractor had pr ev iously di sconnected various circuits to enable other work to be performed. Th is i so l ation work was perform ed in an uns atisfactory manner. The ci rcui t to the cut off saw h ad been disconnected from i ts l ocal isolator and had i ts three phase conductors joined together and taped with the conductors sti ll 25 March, I 994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 681 connected to the ci rcu it breaker, and co il ed adjacent to the swi tch board. A fte r attempti ng to ascertain w hy the c ut off saw would not opera te Ms Dunstan recon nected power which resulted in an explosion c au se d throu gh the taping together of the bared ends oi the conductor s. No di sc iplinary ac ti on was taken aga in st Ms D unstan bu t employees of contractors who l eft the job in an unsati sfact ory manner were barred fr om the l ease . It wou ld be appropri ate to deal w ith the matter of M s Dunstan perform ing this wo rk alone pri or to the l as t th r ee mon ths of her apprenticeship. The Vo cational Education Train ing and Employmen t Regu lations 199 1, Regu lation 12 dea ls w i th res trictions on the wo rk el ect rical appren tices may perform duri ng the period of appren ti cesh ip. Ms Dunstan by respon di ng to a request from other empl oyees w ishing to use the cut off saw m ay h ave acted in breach of th is Regula tio n b ut w ithout the k now ledge or consen t of the employer. Thi s matter was al so raised i n the evidence of Mr S. John, a shi f t electri cian called to give ev idence in support of M s D u nstan. M r Jo hn's evidence seemed to imply cr itici sm that the Company fai l ed to provide electri ca l appr en ti ces with adequate hands on experi ence because of i ts po li cy oi restricting such apprenti ces ab ility 10 get such experience until the l ast three mon t hs oi apprenti ces hip. Ii lhis vi ew is more univer sa l ly held by electrici ans employed by the Company it n eeds 10 be di spe l led. The Company's po l icy in lhis matter co mp li es w ith th e requi rements oi Regulation 12 and no crit ic i sm ca n be directed at the Company's tr ai ni ng po l icy si mp ly be caus e i t comp li es with the requirements of th e Reg ul ations. Cable Repair - F/uro Solids Roas ter Crane On 16 March 1993 Ms D unstan w i th apprentice J. Cole wer~~ working on a ci rcuit wh ich incorporat ed a lockable lo ca l i so l ator wh ich had been previously locked and tagged ou t by ano th er el ec trician. Ms Dunstan co uld not find the key and decid ed to change the switch plate ra ther than go th rough the lost key procedur e. I he repl acemen t pla te wo uld not i it and M s Du n stan repl aced the origin al plate. Wh il e thi s was happening app ren tice J. Cole was worki ng on the other end of the cable ;i short distance away preparing the exposed en ds oi the cab l e. Ms Dunstan then attemp ted to prove the cable was isolated at the l ock ab le local i so lator by turning the switch fr om "off" to " on". She did not warn the apprentice of her in tentions and th e isolator i ailed to function wh ich r es ulted in a l ive cable from the i so lator to the exposed ends where apprentice J. Cole was w orki ng. J. Cole received an electri ca l shock an d seve re fl ash burns w hi ch requ ir ed skin grafts being nece ssary to her left hand. It is the evid en ce of Mr T. Simmons, the Reg ister ed El ectri ca l Su pe rvisor appoi nt ed under th e Mines Regulati on Ac t, that in the first i ns tance the lost key procedure sh ould have b een followed, rather th an attempting to replace the switch plate but, ha ving determi n ed to ta ke that course of action the ci rcu it should h ave been isol ated at th e supplyi ng Maj or Co nt rol Centre. A t the very least M s Dunst an should have warned apprentice J. Cole that she w as test ing the isolator by turn ing the sw itch on to see i i the sect ion of the cable J. Cole was work ing on remained i so l ated. In mitigation o f seri ous ness of th is event evidence wa s given that the particu lar ty pes oi isolator i nvolved in this incident is no !onger u sed by the Com pa ny beca us e so me were discover ed to be tau lty. Thi s argum ent does not take ,nto account the fa i lure of the appl i ca nt in these proceed i ngs to apply bas ic saiety procedures which, on the evidence, were we ll known to her. Fo l l ow ing an investigation of this i ncident Ms Dun stan was sus pended for t wo days and counsell ed as to the requi remen t to comp ly with safety r egu lation s. Ms Dunstan was al so interviewed by Mr N . Busch, Princi pa l Electrical Inspector of M in es, who later indi ca t ed to the Company that it was his in ten tion to con fer w ith the Chief Inspector of M i n es regarding the appar en t leniency of ac t ion ta ken by the Company against M s Dunstan and w it h the in ten ti on of initiating a prosecution aga inst Ms Dunstan over this i nci d en t. However, because such a prosec ution would have a se riou s eifect on Ms Dunstan ·s future career, the Company put iorvvard a proposal for inten si ve retr ai ning an d review w hich was accepted by the Electric al In spector of M i nes as an alternative to prosecu ti on. This retrai ning pro cess in vo lved Ms D un stan wo rking w ith day sh ift electricians for approx im ately six to eight weeks. Just prior to this arrangement being i ntroduced Ms Dunstan was invo lved in another i ncident wh ich re su lt ed in electric al burns to her face an d hands. O verhead Crane - Lighting C ircuit O n 21 June 1993 M s Du n stan was working on a 240 vo lt DC lighting ci rcu i t on an overhead c ra ne by w ay of tes ting the circuit to attempt to loc at e the cause of an i noperative light fitting. She removed the cover of a thr ee way junction box to test the B.P . co nnections us ing ;i martindale neon vo l tage indicator and, during the process of te st ing, the exposed metal tip of the probe contacted the side of the junct ion box causi ng a short ci rcuit w ith severe arcing w hich caused inj ur i es to Ms Du ns tan. The evidence is th at the process d esc ribed above is an acceptable trouble shooting procedure, how ever it is the Company's op inion that the test me thods used we re i nappropriate. Ms Dunstan, supported by the ev idence of el ectri cian S. John, expr ess the v iew th at a sa tisfactory method of t es ti ng was to l eave the 8.P. connector in place w ith the juncti on box and i ns ert the probe i nto w hat appears to be a congest ed area wh il e it is the Company's contention that the 8.P. connectors should have b een carefu ll y pr i sed from the jun ction box w ith an i ns ulated tool and then tes te d. Th is method was al so proposed by electrici an K. Richardson w ho was called to give supporting evidence ior Ms Du ns tan in rel ation to a later incident. W hile it was sta ted that there was a certain am oun t oi vi bra ti on fr om the crane op erations it was not es tablished to my sa ti sfaction that such vibrat io n was su fficie nt to have ca used the short c ircui t, particularly as it was indicated for M s Du ns tan that th e scre w in the B.P. connector to wh ic h she applied the test probe was facing o ut wards and suffici en tly clear to enable easy and saie access. M s Dunstan was clo se ly CO llnsell ed by the Company io ll ow i ng this i nc id en t and warned that an y further similar incidents wou ld be regard ed se riously an d wo uld resu lt in her removal irom the Cop pe r Smelt er. She was informed that the Governm en t Principal Electric al Inspector arcl the Reg istered Manager had major concerns about her attitude to safety. N otw it hs tanding the existen ce of i nternal appeal proceedi ngs, no such appeal was instigated by Ms Dunstan aga inst any of the su spe nsions, warn in9s or retrain ing put i n pl ace by the Company (o th er th an an ap pea , aga i ns t the retra ining being conducted at the Technical Tr ai ning Centre). Ca lcine Conveyor - 3 Pha se Motor Connec1ion On Frida y 10 September 1993 M s Du ns tan was gi ve n the j ob of ii tting a new mo tor to a calcine conveyor. It woul d appear from the evidence that th e correct connec tion of this three ph as e motor is a rel atively elemen tary electrical pro cess . Ms D unst an was llncertain as to how to co mp lete the connecti on •-- whether in "Star" or "Del ta" - an d sought advice fr om electric ian S. John . The evidence on the matter oi the method of connection is that no choice was avai lable and this wa s visibl 1' ap parent in that on!y three lead, we re pr ese nted in the moto r. Ms D u ns tan connected three powe r leads to the th ree mo tor leads but also Joi n ed across each oi th e three circuits w ith br as s bridges wh ic h were packa qed wit h the motor b ut for another purpose. Thi s caused a a ead sho rt in the m oto r wh ich, the io ll mv ing day, blew th ree 10 amp iuses at a substa tion whe n the 7 1 -- 1 of 2 -- 682 QUEENSLAND GOVERNMENT INDU STRIAL GAZETTE circuit was en erg i sed by another electrici an who completed t he remainder of the installa ti on. Fo llow ing an investigation of th is incident Ms Dunstan' s em ployment was terminated. It is the Com pa ny' s evi dence t ha t each of these inc id en ts considered in isolation would not necessarily have warranted di sm i ssa l, but collec ti vely, and having reg ard to th e dangers of el ectricity to Ms D un stan and other employees and th e potenti al damage to plant and equipment, the dism issal w as warranted. Ms Dun stan ac knowledged tha t she h ad been given what I would rega rd as extensive training in electrical safe ty reg ulations and safety tag and l oc k out procedu re s as we ll as general i nstruction in sa fety and occup at ional hygiene. At the time ot the l ast incident Ms Dunstan was th e safety represen ta ti ve for the section in which she wo rked. I have taken into account the high level of results achi eved by Ms Dunstan dur ing each st age of her apprenticeship (Honours and Credit s) and various other awards received by her. Wh ile th ese results are commendable they do not appear to be reflected in the standard of performance on the job. Each of the incid ents has been fu lly investigated by the Company an d Ms D unstan h as not been deni ed an opportuni ty oi responding or providin g an explanation of he r ac tion s. None of t he incidents could be regarded as being of a triv ial or le ss than se rious nature. Indeed the l ast incident, w hil e it did not c ause serious injury to th e applicant or to another employee as did the prev io us two incidents, was de sc ribed, in the evidence of Mr Simmons, as having the po ten ti al for a catastrophic end result should there have been in place a different protective mecha nism than HRC fuses . I am sati sfied that appropriate investi gat ion an d co un se lling has occurred after each incident and th at t he applicant has been given appropriate opportunity t_o respond. The counselling _given follow ing the second l as t incident should have left her in no doubt that her continued employment was in se ri ous je opardy. I have considered all of t he evidence and submissions made by each of the pa rti es but I can find no reason to intervene in the Company's decision to te rminate Ms Dun sta n 's empl oy ment. In rea ching th is conclusion I have ta k en in to account th e submi ss ions made by the Un ion regarding t he effect that thi s decision might have on future employment prospects of Ms Dunstan in Mt. Isa. The evidence clearly indica tes that the Company 's intervention in favour of Ms Dunstan to avoid a prosecution in connecti on with the inc ident of 16 March 1993 was done to preven t repercuss i on on her futu re career but was followed by two further incid ents which are of such a na ture as to overri de such considerat ion by me. R.E. BECHL Y, Commissioner. Appearances:- M r W . Threl fa ll, w ith him Mr S. Sodervi k, for The Electrica l Trades Union of Emp loyees of Austral i a, Q uee nsl an d Branch, fo r the appli ca n t. M r N. Hasti e, w ith him Mr S. Beach and M r J. Burton, for Mou nt Isa M in es Li mi t ed. Operative Dat e: NIA Decision - Reinstatement Rel eased : 14 March 1994 [25 March , I 994 25 March, 1994] QUEENSLAND GOVERNMENT IND USTRIAL GAZETTE 683 -- 2 of 2 --