The worker was dismissed from Queensland’s Caval Ridge Mine for breaching BHP’s charter values and risk management policy and the state’s Coal Mining Safety and Health Act 1999. 

The supervisor made an application to the FWC under Section 394 of the Fair Work Act 2009 for an unfair dismissal remedy against BHP Coal. 

The supervisor was employed by BHP Coal in June 2014 as a supervisor in the Coal Handling Preparation Plant (CHPP) team. 

Between 27 April and 2 May 2022, the supervisor allegedly directed a worker to enter the product stockpile yard in circumstances where the supervisor knew – or should have known – that following a slumping incident in that area, people were precluded from entering it.  

He did so without conducting a proper risk assessment process and putting in place a Job Step Analysis (JSA) to control health and safety risks in the area, as directed by his line manager.  

BHP submitted that the supervisor’s conduct reflected an ongoing non-compliance with his supervisory safety obligations.  

The supervisor argued that he only withdrew the JSA after following BHP’s instructions and checking the area to establish that there was no longer a slump risk.  

He informed the FWC that as a supervisor, he had thoughtfully created, implemented, and withdrawn hundreds of JSAs. He claimed to have 27 years of expertise in the mining and heavy industry and has never put anyone at risk or been involved in a major incident.  

Decision

Fair Work Commissioner Chris Simpson found that the supervisor did not believe the High Potential Incident (HPI) was still in place at the time he ordered the worker into the area and incorrectly assumed the investigation into the slumping event had been concluded.  

The evidence demonstrated that he knew the HPI investigation had commenced. The supervisor took no steps to find out what the status of the HPI investigation was before lifting the JSA in place at the time and directing the worker into the area that was still the subject of the HPI investigation.  

The court found that making an incorrect assumption about the status of the HPI falls into a category of conduct that is related to safety issues that led to the earlier written warning and subsequent Performance Improvement Plans (PIP), such as not complying with the Area Inspection Direction and other deficiencies identified in the evidence between 18 October 2021 and 25 January 2022 leading to the PIP. 

The conduct on 27 April, in the context of the previous issues, was a proper basis for BHP to express genuine concern about the supervisor’s tendency to violate safety processes.  

“This is not a case of a one-off event, or ‘brain snap’ where the consequences of the safety breach did not cause significant exposure to risk,” Commissioner Simpson said. 

“This is a case where failure to comply with the [BHP’s] safety procedure has been occurring over a period of time.    

“The failure to follow the procedure on 27 April, occurring in what was not a significant amount of time after the earlier written warning in relation to safety, and the PIP, where one of the action items was for the [supervisor] to be more active in terms of escalating and reporting safety impacts and hazards, satisfies me that [BHP] had a valid reason for dismissal.” 

The court ruled that the dismissal was not harsh, unjust or unreasonable, rejecting the unfair dismissal application. 

Read the judgment

Daniel John Roy Kirkwood v BHP Coal Pty Ltd [2022] FWC 3074 (18 November 2022)