An apple a day
ONE tough apple, no defence for hitting wall in unfair dismissal case
Wednesday 01 March 2017
A miner working at the Dawson Mine near Moura has failed in his attempt in the Fair Work Commission to have his 2015 dismissal reversed.
Mr Frethey had been employed by Anglo American as an operator at the Dawson Mine for about four years, however, in late 2015 he was dismissed after management concluded that the dump truck he was operating hit a hall road bund and he had failed to notify mine management of it.
The bund is considered a critical safety control, so it is mandatory that any contact with it is reported to management. Failing to do so represents a serious safety breach.
However, Mr Frethey argued that he had no recollection of hitting the bund because around the time when it appears to have happened, he bit into an apple and broke his tooth causing severe pain.
Distracted by this apple incident, he argued he had not been aware of hitting the bund and therefore could not be blamed for not reporting it.
That Mr Frethey broke his tooth was not challenged in the case, because not long after breaking it, he parked his truck, notified his manager, and was inspected by the site nurse before being sent home.
Mine management deduced that it was Mr Frethey driving the vehicle that hit the bund by looking at its GPS tracking data.
“At around 1.05 am on 10 October 2015, [the GPS system] indicates that while driving on the Western Terrace haul road, RD125 went from travelling at around 41 km per hour to around 6 km per hour very suddenly,” Angl management advised the commission.
“As the speed of RD125 changed, the direction of the vehicle also abruptly changed and it veered towards the right then turned sharply towards the left as its speed reduced, then straightened up and continued down the haul road.
“The playback demonstrates that this movement was unusual as no other rear dump trucks travelling in the same direction as RD125 move in the same way.”
Another notable issue debated in the court was whether damage found under the truck - which was consistent with driving into a bund - was there before Mr Frethey started work (as he claims), or was a result of the impact (as management claimed).
However, Deputy President Asbury rejected the claim for unfair dismissal on the basis that she believed the series of events presented by Anglo and suspected that Mr Frethey had not been completely honest during investigations into the incident.
“I have concluded that it is probable that Mr Frethey knew that he had damaged the bund or at very least, that his vehicle had sustained damage that he was required to report,” she said.
“Mr Frethey’s evidence to the Commission and his explanation for his failure to notice that he had damaged the bund and RD125 contains significant inconsistencies.
“The nature and extent of those inconsistencies compel me to conclude that Mr Frethey was at best not entirely forthright and at worst dishonest in giving evidence to the Commission and during the investigation of the events of 9 – 10 October 2015.
“I accept that Mr Frethey suffered an injury to a tooth at some point on the night shift of 9 – 10 October 2015.
"[However], There were significant inconsistency about the nature of the injury and when and where it occurred.”“I have considered Mr Frethey’s evidence about the impact that the dismissal has had on his personal and financial circumstances, however those matters do not outweigh the fact that Mr Frethey was involved in a significant safety breach and was not honest and forthright in the investigation of that breach or his evidence to the Commission.”