In Perth, Fair Work Commissioner Bruce Williams heard from the employer, The Griffin Coal Mining Company Pty Ltd, that it “did not rely on common sense or past practices to guard against risks and hazards,” but on strict compliance with “appropriate safety procedures and policies.”

He heard the worker and other personnel were recently retrained on safety procedures that were updated in 2018 and 2019.

Commissioner Williams said safety instructions were designed so workers didn’t need to rely on their subjective assessment of a situation or make assumptions.

“Safe working instructions and standards oblige employees to take particular steps, even in situations where those steps may seem entirely unnecessary. This is because the safe working instructions and standards are designed to eliminate human error as much as possible,” he said.

The sacked worker was an auto-electrician employed at Griffin’s Collie, Western Australia mine. He was dismissed for breaching heavy vehicle access and isolation procedures when he entered the pit to fix a broken-down grader in December last year.

Commissioner Williams heard the worker, who was also a safety representative, was told by his supervisor that production crew members had parked and abandoned the machine in the coal hole.

The worker then drove his ute into the 30-metre exclusion around the grader and failed to comply with a requirement to attempt to make radio contact with the vehicle or call out to draw the attention of any personnel who might be in or around the grader.

Without looking around for other workers, isolating and tagging the plant or testing for “dead,” the worker approached the front of the grader to inspect its steering ram sensor.

The worker argued the dismissal was unfair because the incident should have been classified “very low risk,” for which no reasonable employer would dismiss an employee of 13 years with a clean record.

He said he knew there were no workers near the grader at the time because he was told this by his supervisor. He could not see anyone as he approached the vehicle and none of its lights were flashing, he argued.

The employer told the Commissioner that working on or around a large piece of equipment like a grader could result in significant injuries or death if safety procedures were not followed.

Workers were trained that it was unsafe to make assumptions about plant or vehicles that appeared to be unattended. It was not impossible that another worker was working on the grader, or that someone would begin working on it as the worker inspected it, given he didn’t tag it, Griffin argued.

Griffin’s fleet manager told the FWC there was no way the worker could have ascertained the vehicle was unmanned without complying with the safety procedures because of its size and the hidden recesses around it.

There had been numerous real occasions where workers had assumed a vehicle was isolated or unmanned and were proven wrong. For example, there was an incident where a worker who did not follow lock and tag procedures on a grader later fell off the back of the machine and under its back wheel, he said.

Commissioner Williams found the worker’s failure to comply with Griffin’s accessing and isolation procedures was a valid reason for his dismissal, stressing it was not necessary for someone to be injured, or for there to be a near miss, for an incident to be a serious breach of safety obligations.

“In my view this was not a mere procedural or administrative breach by the [worker]. The reality was [he] ignored multiple requirements in two separate safety procedures which he was obliged to follow. This was a serious breach of his obligations to his employer,” Commissioner Williams said.

Scoffern v The Griffin Coal Mining Company Pty Ltd [2020] FWC 3201 (23 June 2020)

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