|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - CONDUCT AND PERFORMANCE - claim of VALID REASON - failure to warn - essential element of fairness to treat like cases consistently - no opportunity to defend - COMPENSATION
Workplace Relations Act 1996 (formerly Industrial Relations Act 1988 )
Ss 170DC, 170DE(1), 170EA, 170EDA(1)
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370
Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50
Wadey v YWCA Canberra, unreported, IRCA 542/96, Moore J, 12 November 1996
Kelly Marilyn SALT -v- RUSKIN NOMINEES PTY LTD trading as HYTECH DRILLERS
WI 1051 of 1997
BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 8 September 1997
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1051 of 1997
BETWEEN:
Kelly Marilyn SALT
Applicant
AND:
RUSKIN NOMINEES PTY LTD
Trading as HYTECH DRILLERS
Respondent
BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 8 September 1997
THE COURT DECLARES THAT:
1. The termination of the applicant's employment by the respondent contravened Section 170DE(1) and 170DC of the Workplace Relations Act 1996.
AND THE COURT ORDERS THAT:
2. Within 21 days of the date of making these orders, the respondent pay to the applicant compensation in the sum of $12,000.00 less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1051 of 1997
BETWEEN:
Kelly Marilyn SALT
Applicant
AND:
RUSKIN NOMINEES PTY LTD
Trading as HYTECH DRILLERS
Respondent
This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 ("the Act"). The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, Ms Kelly Salt ("Ms Salt"), by the respondent, Ruskin Nominees Pty Ltd trading as Hytech Drillers ("Hytech"). Reinstatement was not sought and it was not contended that it was practicable.
Hytech contends that the termination was lawful, being for valid reasons connected with Ms Salt's capacity and conduct, as is required by Section 170DE(1) of the Act. The number and nature of those alleged reasons is such that it is necessary for me to set out the evidence concerning the history of Ms Salt's employment in some detail.
Hytech Hires Ms Salt.
Hytech conducts a business providing blasting and drilling services to the mining industry in, among other places, the Western Australian goldfields centred around Kalgoorlie.
Ms Salt was, at the time she commenced employment with Hytech, a woman of 23 years of age. She had some general experience in the mining industry, first working in a mine in Queensland in mid-1994. While in Queensland, she had obtained a "shotfirer's licence", issued to her under the Explosives Act 1952 Qld in June 1996. As a precondition to obtaining that licence, she had completed a correspondence course at the Rockhampton College of TAFE dealing with relevant theoretical knowledge concerning the use of explosives.
Ms Salt moved to Western Australia in the hope of obtaining work as a shotfirer, believing there was drill and blast work available in the goldfields. To that end, she paid the necessary fee to have her Queensland shotfirer's licence recognised and on 13 August 1996 she was issued with a "Shotfirer's Permit" under the Explosives and Dangerous Goods Act 1961 W.A. While waiting for an opportunity to work as a shotfirer, she got work driving trucks in Norseman, a small town about 160 kilometres south of Kalgoorlie, where she lived with a cousin.
In mid to late August 1996, Hytech placed the following advertisement in the "Kalgoorlie Miner":
DRILLERS AND SHOTFIRERS
The successful applicant must have:
* Experience in the relevant field of work.
* Be able to work with only a minimum of supervision.
* Be willing to work in the Kalgoorlie area or, as required on remote sites.
* Hold a current mine workers health certificate and "A" class motor vehicle drivers licence.
* Be capable of passing a drug screening and police clearance.
* Wages to be negotiated based on experience...
(The advertisement went on to set out the method of application for the position.)"
Ms Salt rang Hytech from Norseman and spoke to Mr Alan Leckie.
Mr Leckie worked out of Hytech's Kalgoorlie office with Mr Bernard De La Fontaine. They describe themselves respectively as "Field Supervisor" and "Area Manager" for Hytech's operations managed from Kalgoorlie. Mr De La Fontaine indicated in his evidence that he was senior to Mr Leckie, but that his area of responsibility was primarily the drilling part of the company's activities, while Mr Leckie had primary responsibility for blasting.
It was therefore Mr Leckie who had placed the advertisement for the shotfirer's position, and who considered the applications received by the Company.
In her telephone conversation with Mr Leckie, Ms Salt made it clear to him that, while she had a shotfirer's permit, she did not have the experience described in the advertisement. She says she told him she had no practical experience of shotfiring. He says she told him she had very little such experience. It may be that a clear distinction was not drawn in Mr Leckie's mind between general experience in the mining industry and specific experience with shotfiring. In any event, they are broadly agreed that he advised her to forward an application for the position, and told her that she would be able to work under supervision to begin with, until she "got on her feet". Ms Salt was left with the impression that she was to be taken on as a "Learner Shotfirer".
Ms Salt forwarded an application, dated 26 August 1996, indicating among other things that she didn't have a current mine workers' health certificate, and that she would need to give one to two weeks' notice to her current employer. Upon passing her drug screening test and obtaining a police clearance, Ms Salt was employed by Hytech. There was no evidence of any other suitable applicants for the position.
Ms Salt's rate of pay was fixed at $12.00 per hour, which was less than that of more experienced shotfirers employed by Hytech. Overtime was to be paid after eight hours per day, with the first two hours' overtime paid at rate and a half, and double time thereafter.
Mr Leckie gave the impression in his evidence that it was his decision to employ Ms Salt. Mr De La Fontaine says it was not his decision, because the shotfiring was Mr Leckie's area. There was, however, evidence later in the hearing that both Mr De La Fontaine and Mr Leckie answered to Bob and Celeste Baker, who were the directors of Hytech based in Perth.
It was Mrs Baker's evidence that the decisions to hire and, later, to dismiss Ms Salt were ultimately taken by her. However, Mrs Baker's evidence also made it clear that any decisions taken by her were based entirely upon what she was told by Mr Leckie and, to a lesser extent, by Mr De La Fontaine. It is of little practical importance whether the decisions are said to have been made by Mr Leckie after briefing Mrs Baker, or whether the decisions are said to have been made by Mrs Baker, accepting the recommendations of Mr Leckie. I accept that if there had been a difference of view between them as to what should happen, then Mrs Baker's view would have prevailed. The evidence indicates, however, that they were in agreement both as to Mrs Salt's engagement and as to her dismissal.
After working out her notice with her former employer, Ms Salt began her employment with Hytech on 4 September 1996.
The Role of Shotfirers in the Blasting Process
The Court heard a great deal of evidence concerning a shotfirer's duties and role, both from employees of Hytech, some of whom were themselves shotfirers, and from an expert witness, Mr Michael Germeck. Mr Germeck is an employee of ICI Australia's explosives division of over seven years standing, whose qualifications and experience indicate considerable technical knowledge of explosives. ICI Australia is a company engaged in the manufacture and supply of explosives for blasting in the mining industry, and part of Mr Germeck's role with the company is the establishment of contracts of sale.
I will briefly set out, in laymen's terms, my findings concerning the nature of the shotfirer's role.
The blasting process is the means by which the ground is broken up by explosives in "open cut" mining to enable the ground containing the ore to be dug out for processing. The pit is created by an alternating process of blasting and digging out. The shotfirer's responsibilities relate to the blasting. The preparations for blasting require drilling work to be done. Typically, a mining company would contract out the drilling and blasting tasks to a contractor, such as Hytech, leaving the mining company to focus on excavation and processing of the ore. If the excavation is contracted out by the mining company, then the excavation contractor might in turn engage the drill and blast contractor.
The first step of the blasting process concerns the setting of the parameters of the blast. This usually happens during a "morning meeting" at the beginning of the working day, typically at 6.00 am. The area to be blasted is identified by the mine-manager. There might also be discussion of the other parameters of the blast required to ensure that the blast is effective in fragmenting the ground and that the shape and position of the "muckpiles" is such as to allow for convenient excavation. These other parameters include:
* the selection of the "pattern" in which the explosives will be placed in blast holes drilled across the area to be blasted;
* the distance between the holes, their diameter and their angle to the ground;
* the amount and type of explosives to be used in each hole;
* the manner in which the charges should be connected or "tied"; and
* the order in which the blast holes should be fired.
Most of these parameters would be established when the mine first started blasting a particular type of terrain; the rock type and structure within the terrain are an important factor in blast results. Once the parameters had been "fine-tuned" so that an effective result was being achieved in that that type of terrain, they would typically be used from then on with little variation.
There was some dispute in the evidence as to whose role it was to set the parameters for the blasts. Some witnesses, such as Mr Leckie, indicated that it was the shotfirer's responsibility to make the necessary judgments as to how the blast should be set up in order to ensure that the result was in accordance with the result desired by the mine manager; Mr Leckie has fourteen years experience in open cut mining in the area of drilling and blasting, and obtained his shotfirer's permit in 1995. Mr Leckie's view might make sense, if the mine manager is proceeding on the basis that the drill and blast company is being paid to provide expertise, rather than merely to work to the mine manager's direction.
However, Mr Germeck, the expert witness called by Hytech, indicated that in his experience mine managers usually take responsibility for setting the parameters of the blasts. This is firstly because the decisions as to the amount and type of explosives and detonators used affect the cost of those materials billed to the mining company. Secondly and more importantly, the effectiveness of the blasts can have a significant impact on the efficiency of the mining process, and thus on the mine's profitability. Therefore, according to Mr Germeck, mining managers usually regard the setting of the parameters for the blasts as too important a decision to leave to the shotfirer employed by the blast and drill contractor.
It is clear that once the parameters are set, it is the shotfirer's responsibility to "mark out the pattern". This involves marking with paint on the ground to be blasted the positions of the holes to be drilled for explosives, together with any relevant information as to depth or angle.
The drillers then use their drill rigs to drill the blast holes in accordance with the shotfirer's markings. It is the shotfirer's responsibility to oversee the drilling, checking that the distances and depth of the blast holes are in accordance with the pattern, and ordering redrilling if necessary.
The shotfirer then supervises the loading of the blast holes with the appropriate amounts and types of explosives in accordance with the parameters. The shotfirer may be assisted in this by their offsider. The shotfirer may need to make assessments as to whether a drill hole is wet or dry, in order to determine which explosive should be placed in it; the cheapest and most popular explosive - "Anfo" - does not perform effectively when used in wet blast holes. After loading, the holes are filled in with earth or "stemmed", and tied in or connected by detonator cord, with or without "delays", in accordance with the parameters. The shotfirer's offsiders assist in this process, but it is the shotfirer's responsibility to check that the blast holes are correctly loaded, stemmed and tied in, prior to blasting.
It is the shotfirer's responsibility to ensure that arrangements are made to ensure that sufficient explosives and other necessary materials are available at the mine site to enable blasts to proceed without delay. A magazine is maintained by the shotfirer at the mine site for that purpose, and orders must be placed with the explosives suppliers to ensure that the magazine is adequately equipped to cater for the shotfirer's needs between the suppliers' regular scheduled deliveries.
Once the preparations are completed for blasting, the safety procedures prescribed by Mines Regulations and by the mine site management must be observed. The shotfirer must ensure all necessary signs are placed and warnings given.
The blast is then fired; only a person holding a shotfirer's permit is permitted to initiate the blast.
The shotfirer must then check the blast site for misfires; a misfire is the failure of a charge in a drill hole to detonate. If a misfire is identified then the shotfirer must investigate it and, if necessary, refire. I will consider the evidence concerning misfires further below.
Hytech also required its shotfirers to complete time sheets for each day worked, reporting the number of hours worked, the nature of the work performed and any other useful information concerning the day's activities which Hytech's Kalgoorlie or Perth offices should be aware of.
4 September to 7 October 1996:
Ms Salt Works with Mr McPherson at Bannockburn
Ms Salt's first place of employment with Hytech was at a mine known as Bannockburn near Leonora. Leonora is about 220 kilometres north of Kalgoorlie. Hytech's senior shotfirer at Bannockburn at that time was Mr Michael McPherson. He was working with two shotfirer's offsiders, Mr Ian McGregor and Mr Aaron Waters. Ms Salt was told by Mr Leckie to work under Mr McPherson's supervision.
Ms Salt agrees that she learnt from Mr McPherson the practicalities of marking up patterns, basic priming and loading of the explosives for blasting, row by row detonation, and filling out the time sheets. Her diary indicates she attended morning meetings, sometimes cleaned the magazine and cleaned and maintained vehicles. She says she learnt something about how different patterns were needed in different circumstances, but says that at the end of her time with Mr McPherson, she was still unclear about aspects of the task of marking-up patterns.
Moreover, Ms Salt suggests that Mr McPherson's supervision had its shortcomings. She says that he always appeared to be very busy, and was brief in his dealings with her. She considers that when she asked him questions about shotfiring, he did not answer them well, and that he was reluctant to engage in detailed discussion with her.
However, Ms Salt says she and the offsiders got on well enough with Mr McPherson. She says that he never criticised her work. Mr Leckie agrees that when he enquired of Mr McPherson as to Ms Salt's progress in late September, Mr McPherson's response indicated that she was progressing satisfactorily.
Ms Salt says she worked well with the offsiders, and that Mr McPherson had them doing "everything except lighting the fuse". She says the duties she performed were similar to those performed by the offsiders. Their hourly rate of pay, between $11.00 and $11.50, was only slightly less than her hourly rate of $12.00.
Another witness called by Hytech, Mr Miro Mikulandra, gave less charitable evidence about Mr McPherson's supervision.
Mr Mikulandra, who still works for Hytech, had earlier worked as an offsider to Mr McPherson at Bannockburn. He says that Mr McPherson was "not the best of shotfirers". He says that Mr McPherson required the offsiders to do all the work, often absenting himself while an area was being prepared for blasting, without providing them with much guidance. Mr Mikulandra adds that Mr McPherson was very vague, and was reluctant to explain things to Mr Mikulandra.
The evidence of Mr Aaron Waters, another offsider, was that Mr McPherson was never at the site of the blast working, but always off elsewhere. Mr Waters did not work for long with Ms Salt at Bannockburn before going on leave. Mr McGregor, the other shotfirer, did not give evidence.
Hytech relies on the evidence of another witness, Mr Keith Sutton, who was one of Hytech's most senior shotfirers and who gave evidence of having worked with Mr McPherson for a short period of time. Mr Sutton formed a favourable view of Mr McPherson's level of skill and his capacity to instruct, having witnessed Mr McPherson instructing a learner he had at the time.
I place more weight on the evidence of Ms Salt and Mr Mikulandra concerning Mr McPherson's effectiveness as a supervisor, because it is likely that the standard of supervision offered by Mr McPherson when he was aware he was under the scrutiny of Mr Sutton, a more senior shotfirer, was higher than that experienced by his learners and offsiders in the normal course, when he was not under scrutiny.
Mr Leckie gave evidence about twice visiting Bannockburn during this period. He says that when asked how things were going, Ms Salt advised him that everything was going all right. He recalls however that she complained to him once about not being sure how to use "connectadets", which are a particular type of detonator. As a result, he says he spoke to Mr McPherson. He says he then presumed that Mr McPherson explained it a bit better to Ms Salt. This evidence is consistent with Ms Salt's account of the short-comings she experienced in her instruction by Mr McPherson.
Mr McPherson no longer works for Hytech and it should be noted that he was not called to give evidence. Unfortunately, I have been required for the purposes of these reasons to make findings on the evidence before me concerning Mr McPherson's work performance, and other matters. To the extent to which those findings are adverse to him, it should be noted that they have been made without my having had the advantage of hearing from him, and that the findings may have been otherwise had I had that opportunity.
Ms Salt says she did not complain to Mr Leckie about Mr McPherson's supervision. She says there wouldn't have been any point in complaining; she was already of the view that she couldn't expect to get any "backup" from the office. She says this view was based upon what she had been told by the drillers with whom she worked. Her understanding was that she should only ring the Hytech office when she had to.
29 September 1996 to 5 October 1996:
Ms Salt First Works Without Supervision at Sandstone
In late September and early October 1996, Ms Salt was instructed by Mr Leckie to make four trips to a mine at Sandstone to conduct blasts there, without supervision. Hytech's client was B.E.E.R. Pty Ltd (BEER), who had the excavation contract at the mine.
Ms Salt was assisted by Ian McGregor, one of the offsiders. One of Hytech's drillers, Mr Tom Skukan, also worked on the job. There was evidence of the involvement of two of BEER's managers; they were Mr Brian Neukerville, who was BEER's site supervisor at Sandstone, and Mr Kevin Dockery, BEER's area supervisor. Neither Mr McGregor, Mr Skukan nor Mr Neukerville gave evidence. As a result, the only direct evidence concerning the events in Sandstone is that of Ms Salt. Mr Dockery gave evidence about the results of one of Ms Salt's blasts.
Ms Salt says that Mr Skukan, the driller, was devising the blast patterns for each blast, marking them up and drilling the blast holes, so that they were ready when she and Mr McGregor arrived at Sandstone for each blast. All they had to do was load the shot, tie them up and blast them. Mr Dockery says that sometimes drillers did the marking out, and agrees that Mr Skukan may have been marking out and drilling. He did not concede that Mr Skukan was devising the blast patterns.
Ms Salt says that two of the blasts went well, but that there were "hiccups" with the other two.
The first hiccup was a misfire; Ms Salt explained how it came about.
Ms Salt recalls that she had to use millisecond connectors ("MSCs"), which she had not used before, to do the tying up. She says that a manager with BEER (whose name she did not recall but whom I take to have been Mr Neukerville), suggested a shortcut way to tie up the shots. Ms Salt accepted the suggestion, assuming that Mr Neukerville knew what he was talking about. The blast was running late and Mr Neukerville told her the shortcut would save time.
When the "shortcut" resulted in a misfire, Ms Salt re-tied the shots in the way she usually would have, and refired it about half an hour later.
Accepting Ms Salt's account, and I have no evidence to the contrary, was she at fault on this occasion?
I have discussed the differing views as to the responsibility of the shotfirer vis-a-vis the client earlier in these reasons. Mr Dockery offered his view that the site supervisor's role is limited to identifying the areas to be drilled and blasted. He says the shotfirer then discusses their proposed shot plan with the site supervisor, to get the supervisor's permission to fire that way. This suggests a right of veto in the supervisor. The responsibility, however, ultimately rests with the shotfirer, according to Mr Dockery.
Ms Salt says it was never explained to her whether she was required to follow the client's directions or, in this case, suggestions. She says that she considered Mr Neukerville to be senior to her, given that he was the site manager for the client company.
It is understandable that Ms Salt would be influenced by Mr Neukerville's suggestions, given her lack of experience. Given the uncertainty disclosed in the course of the hearing concerning the issue, it is not surprising that Ms Salt was unsure who was ultimately "in charge". To the extent that Ms Salt might be held to be at fault in accepting Mr Neukerville's advice, it is in my view excusable on the basis of her inexperience and lack of instruction, and could not be regarded as justifying her dismissal, in whole or in part.
In any event, Mr Dockery's evidence was that he had heard that Ms Salt had a misfire at Sandstone, but that he was not too concerned about it. It is not clear that Mr Leckie was ever informed about it during Ms Salt's employment.
The issue of most concern to BEER was the second "hiccup", involving a blast designed to "cut back" inside an existing pit.
As I understand it, this blast was intended to break up the ground in the wall of the pit, rather than at the bottom of the pit, so that the pit was made wider rather than deeper. Ms Salt notes that the pit wall in question was composed of relatively soft ground, rather than rock.
The desired result from Mr Dockery's point of view would have been for the blast to fragment the earth in the wall, but to leave the earth largely in place, so that it could be easily excavated; the pit was small, and the area the digging machinery had to work in was not wide.
Ms Salt gave evidence, however, that she had believed they wanted her to blast the wall to "bring it back to solid wall", so that the earth was blasted off and the "new" wall was left. Ms Salt says that Mr Skukan, who had already drilled the blast holes for this blast, volunteered advice to her as to how to charge the blast holes. She had had no prior experience in blasting pit walls. Mr Skukan appeared to know what he was talking about, so she followed his advice. As far as she was concerned, nothing went wrong, though she agrees that BEER appeared unhappy with the result.
Ms Salt's blast had the effect of making the fragmented earth in the wall collapse, so that the majority of the earth fell down into the bottom of the pit. According to Mr Dockery, this made access difficult, so that the digging out took about six hours longer to do, and they had to change the position of the ramp entry. BEER therefore incurred significant additional expense.
Mr Dockery has a shotfiring certificate. His opinion, based upon his viewing the results of the blast, is that the blast was fired in the wrong direction. In other words, the rows of explosives were wired in such a way that they detonated in the wrong order. He adds that he was told by Mr Neukerville that the shot was meant to be fired in the other direction.
Mr Dockery says that Mr Neukerville "copped it" as a result of the problems with the pit wall blast, and that he told Mr Leckie that he didn't want Ms Salt back on site.
As a result, Mr Leckie asked Ms Salt and Mr McGregor to travel to Kalgoorlie to see him on 7 October 1996. When they met, Mr Leckie asked Ms Salt to explain how she went about the blast to the pit wall. During the discussions, a diagram was drawn which Ms Salt and Mr McGregor agreed represented the manner in which the blast had been set up. As a result of the discussion, it appeared to Mr Leckie that the blast had been fired in the correct direction. Nevertheless, he advised Ms Salt that she had been banned from the Sandstone site by BEER.
Ms Salt says that Mr Leckie asked her, after the Sandstone incident, how Mr McPherson was performing in teaching her about shotfiring. She responded that he was "not the best".
Ms Salt does not recall them discussing any other issue or incident. She was given early leave in the week from 7 October to 13 October 1996.
It seems that Mr Leckie was not unduly concerned at the time about the events at Sandstone. It was only later, when there had been further problems, that he took the problems at Sandstone into account as part of the history of Ms Salt's employment.
As to my findings concerning the second blast, I accept Ms Salt's evidence that BEER's wishes concerning the placement of the earth were not effectively communicated to her, in the absence of evidence to the contrary. I also find that Ms Salt's level of experience did not equip her to devise the parameters necessary to achieve the result desired by BEER, even had it been communicated; she concedes she was relying on Mr Skukan's advice. On the evidence before me I am not satisfied that the blast was fired in the wrong direction.
Mr Germeck's evidence was that he wouldn't recommend that shotfirers be drawing up blasting patterns after only a month's experience. When I put to him the task required of Ms Salt when blasting the pit wall at the Sandstone mine, he thought that was too difficult a job for a shotfirer with only a month's experience to devise the blasting parameters.
Accordingly, I am of the view that none of the events at Sandstone contribute to a valid reason for the termination of Ms Salt's employment.
14 October to 1 November 1996:
Ms Salt Works With Mr Schmidt at Bellevue
After her break, Ms Salt was moved to work at a mine known as the Bellevue Gold Project, situated about forty kilometres north of Leinster. Leinster is about 320 kilometres north of Kalgoorlie. Hytech's client, an earthmoving contractor known as AWP Contractors ("AWP"), had the excavation contract.
Hytech's senior shotfirer at Bellevue at that time was Mr David Schmidt. Mr Schmidt's offsider was Mr Mikulandra, who was also a trainee driller. Hytech had about five or six employees at the site, comprised of the shotcrew and drillers.
Ms Salt gives a positive account of her time working with Mr Schmidt. She says she learnt much more from him than she did from Mr McPherson, explaining that Mr Schmidt loved what he did, that he wasn't too busy to talk with her and that he was easier to understand than Mr McPherson had been. Mr Mikulandra says that it seemed to him that Ms Salt was getting as much information out of Mr Schmidt as she could. He agreed she seemed keen and enthusiastic about acquiring knowledge. He agrees Mr Schmidt was excellent to work with, and was always willing to explain what had to be done.
Mr Leckie says that when Mr McPherson was due to go on leave from Bannockburn, he rang Mr Schmidt at Bellevue to enquire on Ms Salt's progress. He says that Mr Schmidt told him that Ms Salt "seemed all right". Mr Leckie decided to send Mr Schmidt to Bannockburn, and leave Ms Salt at Bellevue as the sole shotfirer.
Mr Schmidt did not give evidence. I note that a subpoena for his attendance was issued from the Registry at the request of the respondent, but it is not clear whether it was served. No explanation was given as to why Mr Schmidt was not called. It seems he is no longer employed by Hytech.
Mr Schmidt's time sheets show that he last worked with Ms Salt on 1 November 1996. He then took a rostered day off, and travelled to Bannockburn on 3 November 1996 to relieve Mr McPherson.
2 November to 3 December 1996:
Ms Salt Works Unsupervised at Bellevue
Ms Salt says she was "pretty stunned" to be left on her own in charge of the Bellevue shotcrew at that stage. As the senior, and indeed only, shotfirer at Bellevue, she was responsible not only for marking up the shot patterns, but also for supervising the drillers' work.
Ms Salt claims that her situation was made more difficult because she had no offsider for the first three weeks after Mr Schmidt left. This is an exaggeration. Mr Mikulandra, who had been Mr Schmidt's offsider, continued to work with Ms Salt as her offsider. While he also worked part of the time as a driller, he had also worked part-time as a driller when working for Mr Schmidt.
Mr Mikulandra's timesheets indicate he was away from Bellevue in early November 1996, returning on Thursday 7 November. It is true, therefore, that Ms Salt was without an offsider for almost a week when she was first left in charge. However, Mr Mikulandra's timesheets for the period from 7 November to 21 November 1996 show that, when he returned, he spent about 75 percent of his time performing shot crew duties.
I accept that Ms Salt may have felt as though her workload was relatively heavy, given that the two of them were performing tasks previously performed by a team of three, when Mr Schmidt was there. It was also apparent in Mr Mikulandra's evidence that his personal preference was to work full-time as a driller; in fact, that is now his position at Hytech.
When Ms Salt asked Mr Leckie to provide her with an offsider, his response was that she would really be proving herself to the company if she could do without an offsider. Mr Leckie says that there was not much happening at Bellevue at the time, and he therefore wasn't convinced that they needed anyone extra there.
Ms Salt says that she rang and spoke to Mr De La Fontaine about her situation and put the same request. She says that his response was that if she couldn't handle it, then she should "give it up". While Mr De La Fontaine does not recall this conversation, I accept on balance that it occurred. Ms Salt concluded as a result that she should not admit to the Hytech office that she was having any difficulties in "handling" her job, because she didn't want to jeopardise her employment.
Eventually, on 25 November 1996, Aaron Waters arrived at Bellevue to work as Ms Salt's offsider. Mr Waters is 21 years old, and had been employed by Hytech since 26 June 1996. He is no longer employed by Hytech.
Mr Waters was confused in his evidence as to the timing of his work with Ms Salt at Bellevue; his recollection was that he worked with her for about four weeks, but his time sheets show that he began work there on 25 November 1996, working with her for a total of nine days. He says he recalls doing ten or eleven blasts with her, but again the time sheets cast doubt on that.
Ms Salt concedes that Mr Waters was of some assistance to her, but says that he was young and could be "slack". She says he was not interested in shotfiring and that he too wanted to learn to drill. She complains that, as a result, he spent most of his time with the drillers, and was reluctant to work with her.
Mr Waters claims to have gotten on well with Ms Salt, and did not accept that their relationship was bad.
Mr Mikulandra also says he generally got on well with Ms Salt. He says she could be a pleasant person to work around and that they had a good relationship, which included some friendly banter. He concedes that sometimes, communication between them could be a little lacking, to the extent that they at times stopped talking to each other. He added however that they all had their problems, and that Ms Salt was not, in this respect, different from any other employee.
I accept that Ms Salt genuinely considered there to be a problem with each of her offsiders and believed that it hampered her in performing her role as well as she would have liked. It is less clear where the responsibility for that perceived problem lies.
Ms Salt says she didn't complain to Hytech about her problems with Mr Waters, because she knew he was Mr De La Fontaine's nephew. Ms Salt also appears to have been under the impression that Mr Mikulandra and Mr De La Fontaine were related; Mr Leckie's understanding is that Mr Mikulandra is related in some way to Mr Waters.
In my view, the difficulties in Ms Salt's dealings with her offsiders were related to what appears to have been a lack of effective communication between Ms Salt and Hytech's office. The difficulties arose in part from Ms Salt's pessimism, combined with her lack of experience and lack of confidence. They also arose in part from the informal and robust management style of Mr Leckie and Mr De La Fontaine.
Mr Waters made the unsurprising admission that he believed his connection with his uncle had helped him get the job; Mr De La Fontaine was evasive on this point. There was, however, no evidence of any favouritism in Hytech's dealings with Mr Waters and Mr Mikulandra at the expense of other employees.
Nevertheless, Ms Salt held the apparently unfounded assumption that both Mr Mikulandra and Mr Waters had some sort of protected status. I infer from the evidence that this assumption had the practical effect of undermining Ms Salt's confidence in directing them in their work. This added to other difficulties in exerting her authority, given her youth and sex in what is still a male-dominated industry.
I accept that her difficulties in directing her offsiders had the effect of making her job harder; for example, she may have felt unable to increase Mr Mikulandra's workload after Mr Schmidt's departure, despite their relatively good relationship, and may instead have taken on all of Mr Schmidt's responsibilities while continuing to perform all the duties she had previously performed as a learner shotfirer.
I also accept that she did not feel able to admit these difficulties to nor seek assistance from Hytech's Kalgoorlie office. This is partly due to her pessimism as to the prevalence of nepotism within Hytech and as to the level of support and assistance she could expect from them. While I am generally not satisfied on the evidence before me that this pessimism was warranted, I can see that the responses to her general requests for a full-time offsider gave her some cause for pessimism.
Ms Salt says there were two misfires in blasts which she conducted while she was in charge at Bellevue.
She recalls that the first of these took place on the day Mr Schmidt left. This would appear from Ms Salt's time sheets, to refer to a blast which took place on 3 November 1996; Mr Schmidt's time sheets record him as travelling to Bannockburn on that day.
Ms Salt believes this misfire occurred because she put too great a delay between the two sections of the blast, which resulted in the first blast cutting the cord to the second blast before it could be detonated.
There was no other evidence about this first misfire, so I accept Ms Salt's account of it and conclude that the first misfire was due to inexperience rather than carelessness on Ms Salt's part.
There was another misfire during a blast which began a pit known as the Vanguard Pit ("the Vanguard Misfire"). While Ms Salt's time sheets seem to show the first blast at the Vanguard Pit as taking place on 5 November 1996, the other evidence suggests that the misfire occurred on 8 November 1996. This includes Mr Mikulandra's timesheet for 8 November 1996, which refers to "2 blasts". Mr Mikulandra recalls only one misfire; he was away from Bellevue on 3 November 1996.
The Vanguard misfire was witnessed by Mr Keith Sutton, one of Hytech's senior shotfirers, who was at Bellevue on 8 November to see the site manager and to drop off some explosives. Mr Sutton has had his shotfirer's licence since 1976.
Ms Salt was busy working on a shot making preparations to blast when Mr Sutton arrived. He noticed the manner in which the blast holes were patterned. In his view, the way they were marked up was not orderly. He says the lines in which the blast holes were laid out were not parallel and not straight, as they should have been. He explained that such irregularities have the effect of making the ground difficult to dig after the blast.
It appeared to Mr Sutton that the preparations were going on time and almost finished. He noticed that a couple of the rows of blast holes had not been tied in but, as he could see that Ms Salt was still at work tying in the delays, he presumed she was aware of them, and would tie them in in due course.
About ten minutes later, Ms Salt announced that the blast was ready to proceed. After the blast, she reported that a couple of rows had misfired. Mr Sutton noted that they were the rows he had seen which had not been tied in.
Ms Salt says the misfire on that occasion was caused by a detonator not being put in properly. Mr Mikulandra says that the misfire he witnessed was caused by a "trunk line delay" (which I understand to be a type of detonator) being inserted around the wrong way. He says he saw this for himself.
Mr Sutton assumed Ms Salt had simply overlooked the rows, and had either not tied them in or not checked that they were tied in. He reported the incident to Mr Leckie later that day, considering it more appropriate to raise the matter with Ms Salt's supervisor than to speak to her about it directly. He says he was concerned about what he considered to be the shoddy workmanship he had witnessed, both in the way the blast holes had been marked up and the fact that the misfire had taken place. He recalls that the marking up had been on the surface, on unblasted ground.
When asked whether the misfire could have been caused by a delay being turned around the wrong way, Mr Sutton replied that the delays used on the blast were "uni-directional", so that it made no difference what direction they were put in. It was not put to him that Mr Mikulandra's evidence referred specifically to "trunkline delays". The ICI Explosives Blasting Guide tendered in evidence has a section on "TLDs", and appears to draw a distinction between the "tail end" and the "outgoing signal tubes", and give directions concerning the placement of each.
In the circumstances, I am not satisfied on the evidence before me that the Vanguard misfire was caused by a failure to tie in the shots, as Mr Sutton assumed. It is more likely that Ms Salt or Mr Mikulandra tied them in the ten minutes before the blast, but did so incorrectly, putting the Trunk Line Delay in the wrong way. Ms Salt's fault lay in either tying the delay in incorrectly, or failing to check that Mr Mikulandra had tied it in correctly. I regard Mr Mikulandra's evidence as being more reliable concerning which particular delays were used in the blast and their properties, given that he was personally involved and Mr Sutton was merely observing.
It would appear that Ms Salt's error on this occasion was at least partly due to lack of care; it was not suggested that trunkline delays were unusual and that she was unaware of the need to tie them in in the correct way.
Mr Leckie's diary contains an entry on Saturday 9 November 1996 stating "Give Kellie Salt a Serv re Blast 395-20." He identifies this as relating to Mr Sutton's report to him concerning the Vanguard misfire (though Ms Salt's time sheets indicate that Blast 395-20 was in fact a blast which took place on 7 November 1996 of some toe in an existing pit).
Mr Leckie telephoned Ms Salt. She admitted there had been a misfire, but claimed that the rows which had misfired had been tied in. He says she did not explain why the misfire had happened.
Mr Leckie says he asked her to fill in a report on the misfire. Mr Leckie says that he understands the relevant mining regulations require that a report be completed after any misfire. He has never received such a report. Ms Salt denies that he made any such request, saying the first she had heard of it was when it was put to her in cross-examination.
Having heard the evidence of Mr Leckie and Ms Salt on this question, I accept on balance that the report was requested. There appears to be no written record of the request, and it may well be that the report was not requested in such a way that it was a prominent issue in Ms Salt's thinking during what was an eventful time for her. It may be that Ms Salt forgot about the request, and while it remained a concern of Mr Leckie over the ensuing month, she had put the incident behind her. There were no further misfires.
I will further consider the significance of the misfires later in these reasons.
Leaving aside the two misfires, there is no doubt that the results Ms Salt was achieving through her blasting after Mr Schmidt left were less than perfect.
Ms Salt concedes, for example, that they were getting a lot of toe. "Toe" is hilly areas of ground left unbroken by the blast, which sometimes have to be reblasted in order to level the ground before the next full blast. An entry in Ms Salt's diary for Saturday 16 November reads "Total Toe (Bellevue) - 797 metres".
However, Ms Salt says she believed that her blasts were effective. She contends that, as far as she knew, her performance was satisfactory.
Mr Leckie says that he went to Bellevue on several occasions. He recalls telling Ms Salt not to let anyone rush her. She too recalls Mr Leckie speaking to her on one occasion and telling her that she should take her time during preparations for a blast. He also recalls talking to her about the need to use a tape measure when marking up patterns. Ms Salt says she does not recall this; the issue of the manner in which the patterns were measured out when marking up is considered further later in these reasons.
Ms Salt continued to take steps after Mr Schmidt left to fill gaps in her knowledge and to find ways to improve the results of her blasts.
She purchased at her own expense a blasting guide publication from ICI Australia, the company supplying explosives for Hytech's blasting, and sometimes consulted with ICI personnel when she had questions relating to the use of explosives.
She consulted with Mr Les Jones, the AWP site manager. He suggested she could look at making the pattern smaller.
Ms Salt says she was learning from experience that it was important to know what the client wanted her to achieve. It seems clear that AWP were largely leaving it to Ms Salt to decide the blast parameters which would achieve the result desired by AWP, rather than merely requiring her to comply with parameters established by AWP.
She was also learning about "knowing your ground". The ICI blasting guide indicates that the properties of the intact rock, such as its compressive and tensile strength, its density, saturation and porosity and the presence within it of any discontinuities can have a significant impact on the outcome of the blast.
Ms Salt began receiving assistance with regard to the powder factors of the explosives from Mr Neil Armitage, an employee of AWP, whose usual job was to drive the graders. I don't accept Mr Waters' contention that Mr Armitage did all of Ms Salt's job. Mr Armitage was, however, able to assist in relation to powder factors, about which he knew a great deal.
Mr Mikulandra says that he believes Ms Salt did her job to the best of her ability and that the results of her blasts were starting to get better as time went on.
Significantly, Mr Leckie concedes that when he spoke to Mr Les Jones, the AWP site manager, about Ms Salt's performance, Mr Jones said that everything seemed "OK". It would seem that the client, who had a direct financial interest in the effectiveness of the blasting, found Ms Salt's performance to be acceptable.
Ms Salt claims that there were some changes in the way in which AWP wanted things done which were brought in after Mr Schmidt's departure.
For example, Mr Schmidt had always used "connectadets" to tie in his shots. After he left, AWP decided that they wanted Hytech to use series detonators instead. While the difference between the two products eludes me, it seems that series detonators were cheaper, but were less readily obtainable and less commonly used than connectadets, which were an ICI product. Ms Salt was not familiar with the use of series detonators.
Ms Salt therefore made numerous attempts to order in the series detonators, which she believed AWP required. Mr Leckie had some available in his stocks, but could not obtain more for some weeks. He and AWP reached agreement that Hytech could continue to use connectadets, but AWP would only meet the costs applicable to series detonators, with additional costs being borne by Hytech. However, Mr Leckie conceded that Ms Salt may not have been informed of this arrangement; it appears she continued to believe that AWP were requiring series detonators to be used.
Ms Salt says that AWP also shifted to a technique called "selective mining", which she did not know about. As I understand it, this is a process whereby the ground is blasted in such a way that it is fragmented to a different extent within the same blast, depending on whether it is expected to contain the mining ore, or merely overburden. The ore bodies are under-charged to minimise dilution. Ms Salt was not aware that Mr Schmidt was blasting in accordance with the selective mining procedure. She believes he was just blasting "the whole thing".
Mr Leckie says that selective mining had always been used at Bellevue, and indeed that most mines use it, including Bannockburn.
I accept that selective mining was not new, but conclude that Ms Salt received insufficient, if any, instruction on the technique from her supervisors.
On Thursday, 21 November 1996, Ms Salt had an accident while travelling to Kalgoorlie to collect some explosives required for a blast the next day. She rolled her vehicle after a tyre puncture. While she was not seriously hurt, the vehicle was irreparable and she was understandably shaken by the experience. She was given some time off work as a result. Her time sheets show that she returned to work on 24 November 1996.
Ms Salt says that Mr De La Fontaine was angry about the damage to the vehicle, and reprimanded her soon after it, while she was still in shock. Mr De La Fontaine denies this. I would expect that, together with their concern for Ms Salt's safety, Mr De La Fontaine and Mr Leckie would also feel upset by the loss of an vehicle. More likely than not, something was said about it at the time. However, while some of Hytech's witnesses expressed the view that it was Ms Salt's responsibility as user of the vehicle to check the roadworthiness of the tires, Hytech were not contending that the damage to the vehicle should be taken into account in determining whether Ms Salt's dismissal was for a valid reason.
Mr Mikulandra gave evidence that he would sometimes be left alone in the pit by Ms Salt without a vehicle while she went elsewhere, without knowing where she was. Mr Waters gave similar evidence.
Ms Salt denies leaving Mr Mikulandra or Mr Waters down the pit without a vehicle. Ms Salt says she would sometimes leave the pit to perform duties elsewhere, such as making phone calls at the site office, liaising with AWP personnel, surveyors and geologists, and maintaining the magazine. She says they had access to other vehicles. From the evidence it appears that both of them often spent time with the drilling crews when there were no shotfiring duties. The drilling crews presumably had transportation.
Mr Waters maintains, however, that Ms Salt was sometimes absent for periods when her whereabouts were unknown, and when they were unable to contact her on the two-way radio, which was connected to her car and to the relevant offices, despite trying at half-hourly intervals.
I accept on balance that Ms Salt sometimes took breaks, leaving the work site for purposes unrelated to work. There was insufficient evidence for me to find that this was more than an inconvenience or annoyance for her offsiders. While not commendable, Ms Salt's behaviour in this regard is perhaps more understandable when one has regard to the evidence of Mr Mikulandra concerning the behaviour of Mr McPherson at Bannockburn. According to Mr Mikulandra, Mr McPherson was in the habit of leaving the site to watch television while his offsiders made the preparations for the blast. Given that Ms Salt probably witnessed this behaviour when she started at Bannockburn, it is likely that she assumed that such behaviour by the senior shot firer was tolerated by Hytech.
Mr Waters also complains that the drillers did not have much direction. He recalls one occasion when Ms Salt, rather than giving specific directions, told them "just drill to wherever". He recalls that it occurred in circumstances where the drillers were joking about something, and Ms Salt "may have got the wrong impression". If this incident occurred, I am not satisfied that it was usual behaviour on Ms Salt's part.
Mr Mikulandra and Mr Waters say there was very little production and frequent delays in drilling at Bellevue. This was of concern to the drillers, because drillers were paid differently from the shot crew; they received no penalties for overtime, and a proportion of their pay depended upon the size of the area over which they drilled. Through no fault of their own, they were being prevented from drilling significant acreages.
Mr Mikulandra agreed in evidence that he could not tell where the fault for these delays lay. While it was up to Ms Salt to find out what ground was scheduled to be blasted, he agreed that delays by her in pattern marking were only one factor. There were also mechanical problems with the drill rigs, and delays in waiting for soil sampling and assays.
Ms Salt says that the drilling machinery used by Hytech was old compared to that she had worked with in other companies, and that there were frequent breakdowns.
In cross examination, Mr Waters also agreed that the lack of production was partly due to the nature of the rock being blasted, and due to delays with the surveyors, whom he says were always slow.
Mrs Baker noted in her evidence that Bellevue was a "very difficult site".
Nevertheless, Mr Mikulandra says that he spoke to Mr Leckie or Mr De La Fontaine about Ms Salt on a couple of occasions. He says he told them that things were getting pretty bad, and that things would have to change. He complained that the drilling was not happening, that the drillers needed metres to get paid, that they needed to get the drill rigs fixed and "happening" and that not enough pattern was getting marked up. He told them that Kelly needed a lot more experience, and that she was really not the girl for the job.
Mr Waters also rang up Mr Leckie on about 1 December 1996 to complain that Kelly was no good for the Bellevue job, that insufficient rock was being blown. He said that it seemed to him and to the drillers that nothing was getting done. He told them believed that Ms Salt was out of her depth. He told Mr Leckie that she was no good for this job, that too little pattern was being marked up.
He says he spoke to Mr De La Fontaine part of the way through his conversation with Mr Leckie.
Mr Leckie says this was in late November or early December. He says Mr Waters told him he was getting "cheesed off" with Ms Salt, and said that she kept leaving him down the pit. He recalls Mr Waters telling him that Ms Salt was finishing work early but still booking her time. He took a very serious view of this allegation. Assuming it was correct, he saw it as theft from the company.
Mr Waters says that he didn't say anything about time sheets being filled out incorrectly until Mr Leckie came up to the mine site on 3 December 1996. He recalls that Mr Leckie looked shocked when he learned about it. I will consider below the allegations concerning the timesheets.
Mr Mikulandra had been working full-time as a driller since Mr Waters arrived. Mr Waters also wanted to be a driller and spent time with the drill crew when not required for shot fire duties. Ms Salt, the only female Hytech employee, was thus somewhat isolated. I am satisfied that, when communicating the drillers' discontent to Hytech's Kalgoorlie office, Mr Mikulandra and Mr Waters unfairly allocated the whole blame for delays in marking up patterns to Ms Salt, when part of that delay was due to AWP and to the technicians whom she required to provide her with necessary information.
Hytech Dismisses Ms Salt on Tuesday 3 December 1996
Mr Leckie says that he hired a new shotfirer, Mr Brett Parker, in late November 1996. Mr Leckie intended that Mr Parker would replace another shotfirer who had advised of his intention to resign. When the other shotfirer changed his mind, Mr Leckie had a spare shotfirer at his disposal. He considered using the opportunity to dismiss Ms Salt. He discussed it with Mr De La Fontaine, who did not object. Mr De La Fontaine recalls Mr Leckie telling him that Ms Salt was not doing her job correctly, and was never down the pit. Mr Leckie then spoke to Mr and Mrs Baker.
Mr Leckie says that the reasons he was considering terminating Ms Salt were:
* the number of misfires she had had;
* her failure to organise the timely ordering of explosives; and
* her claiming payment for hours she had not worked.
In his opinion, the most serious factor was the misfires. The excess hours claimed were, he says, the "last straw".
On Monday 2 December 1996, Ms Salt was asked by a secretary at one of the Hytech offices to arrange accommodation at the Bellevue Mining Camp for a new shotfirer. When she rang Mr Leckie to enquire about the new employee, he was evasive and told her not to worry.
Ms Sharon Johnson, an employee of AWP, was present at the Bellevue mine site office on Tuesday 3 December 1996 for the first part of the conversation during which Ms Salt was dismissed. Ms Salt called her to give evidence. Ms Johnson recalls Mr Leckie asking to speak to Ms Salt in private. Ms Salt replied that she wanted Mr Leckie to say what he had to say in front of witnesses.
Mr Leckie then told Ms Salt that he was going to "have to let you go". When asked why, he said it was because Ms Salt was incompetent.
Ms Johnson says Ms Salt responded with words to the effect that she had never been given a chance. Mr Leckie can't recall this. Ms Johnson says she felt uncomfortable in the circumstances, and walked out of the room while "everything was being justified".
Ms Salt recalls Mr Leckie saying that "Bob and Celeste (Baker) had had a word". She says he told her she didn't seem to be "getting it". He added that some people do and some people don't. He referred to another learner shotfirer who had been with Mr Sutton for two months and then had gone out on his own and was doing a competent job.
It is agreed that Ms Salt was paid a week's wage in lieu of notice, together with accrued entitlements.
Observations on Witnesses
Ms Salt seemed nervous at times while she gave evidence, which is not surprising given her youth and lack of experience of litigation. This sometimes manifested itself in inappropriate laughter or smiling. At one point, while being questioned about alleged unexplained absences during work hours, she became upset.
While she acknowledged some deficiencies in her work performance, I am of the view that she displayed a tendency in her evidence to minimise the extent of those deficiencies. The obligation she felt during her employment to appear to be coping with the demands placed on her by Hytech appeared to me to carry over at times into her evidence.
I was impressed by the manner in which Mr Mikulandra gave his evidence, and have generally preferred it where it conflicts with that of other witnesses. In particular, I formed the impression that he was being careful to be balanced and fair in the evidence he gave and in the assessments he was called upon to make.
I placed less weight on Mr Waters' evidence. Apart from the doubts cast on his recollection by his confusion as to timing, he had a tendency to speak in exaggerated terms. Having formed an adverse view of Ms Salt's abilities in general, he often seemed unable to take a balanced view when asked for assessments of particular aspects of her performance.
Mr Leckie's evidence was often vague, as can be the case when witnesses are asked to recount events of some months ago where there is no documentary framework to refresh or assist their memory. This was a serious problem for the respondent, given that it bears the onus of proof. I accept that Mr Leckie was a witness of truth; indeed, a less honest witness might have pretended to a certainty in recollection that they did not have. Where I have preferred the evidence of other witnesses it is generally because I regard their recollection of a matter to be more reliable.
Mr De La Fontaine gave brief evidence. He seemed chiefly concerned to distance himself from the matters the subject of these proceedings. I have preferred the evidence of Ms Salt over that of Mr De La Fontaine concerning some of their alleged interactions. I found her accounts of the relevant conversations on balance to be more convincing than his denials that they took place.
Whether There was a Valid Reason for Termination
Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee's employment connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
The reason for termination given to Ms Salt by Mr Leckie at the time of her dismissal was that she was "incompetent".
Mr Leckie's diary note for Tuesday 3 December 1996 states:
"Kelly Salt put off due to unsafe practices (misfires)..."
When the notice of employer's appearance was filed in response to this application, the reasons for termination were summarised as:
* "Disorganisation (ordering of explosives)
* Failure to follow instructions
* Not performing duties to satisfaction of company"
In the context of these proceedings, Hytech elaborated somewhat on its reasons. Specifically, Hytech contends that Ms Salt:
* was incompetent in performing the duties of a shotfirer; and, in particular
* did not properly measure patterns when marking out;
* did not order sufficient explosives and other materials to prevent delays;
* did not retain and "bag off" excess bulk explosive from the supplier;
* did not take sufficient care to avoid misfires; and
* was incompetent and dishonest in her completion of time sheets.
I will now consider each of those contentions.
Incompetence
I will consider first the general allegation of incompetence before dealing with some of the other more specific allegations.
Ms Salt was taken on as an employee on the basis that she had little or no experience as a shotfirer. She was given about seven weeks' supervision of varying quality, by Mr McPherson (for about 29 days) and by Mr Schmidt (for about 18 days). She was then left to fend for herself at Bellevue, which Mrs Baker concedes was a "difficult site".
Mr Leckie says that eight or nine weeks of supervision should be quite sufficient time for a learner shotfirer. He spoke of other learner shotfirers who picked up the necessary practical skills in three to five weeks.
Mr Sutton says that four to six weeks should be sufficient experience with supervision for a shotfirer to become sufficiently competent to work on their own. He suggests that if it took longer than that, the shotfirer probably wouldn't make the grade.
Mr Germeck indicated that a month's constant supervision would be sufficient experience before a shotfirer worked unsupervised. He accepted that it would depend upon the quality of the supervision. He added the important caveat that he wouldn't recommend that they be drawing up blasting patterns within a month. That, of course, is exactly what Ms Salt was required to do at Bellevue, it being left to her to decide the blasting parameters.
I conclude on the evidence before me that Ms Salt was not ready to take on the role required of her when Mr Schmidt left her in charge at Bellevue. However, she took steps to acquire the necessary competence and Mr Mikulandra says that the results of her blasting were getting better. The client, Mr Jones, told Mr Leckie that everything was "OK".
If Hytech were nevertheless of the view that Ms Salt had not achieved the level of competence they required of their senior shotfirers, then there were alternatives to dismissal.
Shotfirers at Hytech start with an hourly rate of $12.00, which rate increases with experience. Mr Leckie said that ordinarily, Ms Salt could have expected a pay increase in three months. Senior shotfirers received an hourly rate of $13.00. Offsiders received hourly rates of about $11.00.
In the circumstances, Hytech had the option of providing Ms Salt with additional supervision, so that she worked as a learner shotfirer, performing duties similar to an offsider, at a comparable wage rate.
This is not to say that Hytech could never lawfully dismiss a learner shotfirer on the grounds that he or she did not achieve the necessary level of competence. However, in this matter, Ms Salt was engaged on the basis that she would be supervised until she "found her feet". If Hytech had a view that she should achieve the necessary level of competence within a particular time frame, then they should have told her from the outset how long she had to become competent. It would be desirable that the concept of "competence" be defined by reference to objectively measurable criteria.
If, having entered into an open-ended arrangement, Hytech became concerned that Ms Salt was not progressing, then they could have advised her at that point that she would need to achieve the necessary level of competence within a further specified period. They did not do so.
While I accept, on balance, that Ms Salt did not demonstrate the level of general competence which Hytech required of an unsupervised shotfirer, I do not find it to be a valid reason for her dismissal, given the circumstances in which she was engaged.
Marking Up Without Measuring
One of the specific areas of unsatisfactory performance asserted by Hytech was Ms Salt's alleged failure to accurately mark out blasting patterns, due to her alleged refusal to consistently use a measuring tape. Hytech contend this failure reduced the effectiveness of her blasts.
I have already referred to Mr Sutton's evidence that the pattern he observed before the Vanguard misfire was not marked up in an orderly way, and that the lines in which the blast holes were laid out were not parallel and not straight, as they should have been.
I have also referred to Mr Leckie's evidence that he spoke to Ms Salt about the need to use a tape measure when marking up patterns.
Mr Germeck confirmed that measuring with a tape was necessary when marking up, especially on uneven ground. He suggested, for example, that where the pattern required blast holes to be three or four metres apart, a deviation from the pattern of more than 30 centimetres would effect the result of the blast. Where the holes were further apart, toe might be left and the rocks not be broken as small as desired. Where they were closer together, the rock may "fly around". Mr Sutton agreed that irregularities in the pattern have the effect of making the ground difficult to dig after the blast.
However, Mr Mikulandra conceded that it was not in practice unusual for shotfirers to "step out" patterns from time to time, and suggested that this was not inappropriate for patterns covering a relatively small area, over an area say of six square metres. He considered that for larger patterns, however, it was necessary to use a tape measure.
Mr Leckie says he saw Ms Salt "stepping out" the pattern on numerous occasions. In his view, that was not an adequate method of marking up, particularly over a large area.
Ms Salt claims that she would usually mark up patterns with a measuring tape, though there were times when she would just pace them out. She agrees that it was necessary to use the tape but says that, having done so initially, the rest of the pattern could be paced out.
Mr Mikulandra says Ms Salt was "not so good at marking up a pattern". He confirmed that Ms Salt sometimes "stepped out" her patterns when marking up, and that she paced out "bigger patterns than most".
Significantly, Mr Mikulandra says that Mr McPherson, Ms Salt's first supervisor, also had a tendency to mark out patterns "by foot".
On Thursday 21 November 1996, a survey chart was prepared of a pattern that had been marked up by Ms Salt. Ms Salt agrees that the chart was seen by her at the time, and it was tendered in evidence. However, the surveyor who prepared the chart did not give evidence, and there was a conflict in the evidence of Mr Leckie and Ms Salt as to how the chart came to be prepared and as to the conclusions which can properly be drawn from it.
Mr Leckie says that he was present at Bellevue on Thursday 21 November 1996, and saw a pattern which Ms Salt had marked up which he did not consider adequate. It was, he says, "all over the place". He says he instructed one of the surveyors to survey the pattern, and to show the resulting plan to Ms Salt. Mr Leckie says that the purpose of this exercise was to demonstrate to Ms Salt that her pattern marking was not sufficiently accurate, and that it was therefore necessary to use a tape measure. However, Mr Leckie left before the survey was completed and was not present when the plan was given to Ms Salt.
Ms Salt says that it was she who asked the surveyor, whom she identified as "Andrew", to survey the pattern. She says that the surveyor told her that the plan did not show all the blast holes she had marked to be drilled. Mr Leckie doubts this. He says that the survey shows what he saw on the ground.
To a lay person, the plan appears to show about 160 holes arranged in a broadly rectangular pattern about 10 holes high by 16 holes across. The scale of the plan indicates that the holes were usually 2.75 meters apart.
On the left hand side of the pattern, while the distance between the holes appears to usually be relatively regular, there is occasionally some slight irregularity. This may just be an inaccuracy in the plan, given its small scale. Assuming the slight irregularities in the plan reflect corresponding slight irregularities in the marked pattern, I cannot say whether those irregularities are sufficiently slight to be acceptable. The other witnesses with expertise in shotfiring did not comment on the plan.
Toward the right hand side of the pattern, there are some striking irregularities. These irregularities appear to be consistent, to the untrained eye at least, with holes being missed completely rather than being inaccurately placed. I am left with the impression that if one filled in the "missing" holes, then the regularity of the pattern would be restored.
In the absence of any evidence from the surveyor I cannot conclude, based upon the plan, that the actual pattern as marked up by Ms Salt on 21 November 1996 was insufficiently regular to meet the necessary standard of accuracy in marking up expected of a shotfirer.
Mr Mikulandra says that he raised once with Ms Salt a proposition whereby the patterns could be marked out more easily using a tape measure. He says the gist of her response was that she would do it her way. Mr Mikulandra does not contend that Ms Salt's perceived short-comings in marking up were the subject of regular discussion between them.
Ms Salt denies that Mr Leckie spoke to her about not pacing out the measurements when marking up. I found these denials unconvincing.
On one occasion Mr Leckie noticed that the pattern she had marked seemed "higgledy piggledy". It seemed to him that some blast holes were over four metres apart, when they should have been say three metres apart. He says he told her on that occasion to use a measuring tape when marking out.
On a later occasion Mr Leckie told her that she had to use the measuring tape and that if she "didn't get her shit together then she could piss off". He says she responded that she had been using a tape. He says however that the tape wasn't in evidence when he was there, though he concedes he did see her using it after he'd spoken to her.
Mr Waters says Ms Salt wouldn't listen when he told her to use a measuring tape on her pattern markups. He says that she would just mumble and walk off, and then step it out again. Ms Salt says she does not remember this.
Mr Germeck agreed that, provided the blasting parameters were correct, if the blasts were not effective then it is likely to be because the marking out was incorrect.
Mr Waters says most of Ms Salt's blasts were relatively ineffective, often leaving large amounts of "toe", or big rocks at the bottom of the pit. He later worked with Mr Schmidt and colourfully described the state of the ground following blasts marked up by Mr Schmidt and Ms Salt as "rice bubbles" and "meteors" respectively.
Mr Mikulandra reports that the results of some of the blasts where Ms Salt had paced out the patterns were good, and that some were "not so good". In the latter blasts, rather than the ground being able to be dug out to a new flat level, there was "toe".
Mr Mikulandra says that the results of Ms Salt's blasts were starting to get better as time went on. He noticed that she began using the tape measure more often when marking up.
In conclusion, I find that Ms Salt adopted an inappropriate level of "pacing out" when marking out patterns as a result of her initial supervision with Mr McPherson, whom Mr Mikulandra says had a tendency to mark out patterns by foot. She may have been motivated to do so in order to save time; Mr Leckie's initial advice to her suggests that was his assumption.
When the effectiveness of the blasts decreased after it fell to her to both devise and mark out patterns at Bellevue, she examined many possible factors which might increase effectiveness, including powder factors, and the type of ground. I accept that she was advised by Mr Leckie and her offsiders that more care and accuracy in marking up would increase the effectiveness of the blasts, and I accept that she was slow to take that advice.
I also accept that Mr Leckie eventually issued her with a direction to use the measuring tape when marking up, which arguably amounted to more than a mere exhortation to improve. There is, however, no evidence that the problem continued after that instruction. Indeed, Mr Mikulandra says she began using the tape measure more often when marking up and the results improved.
As there is no evidence that Ms Salt's marking up continued to be unsatisfactory at the time of her dismissal, I do not find that it was a valid reason for the termination of her employment.
Failure to Order Explosives on Time
Mr Leckie claims that Ms Salt consistently failed to place orders so as to ensure that she had adequate supplies of explosives between regular deliveries. Specifically, he says that he instructed Ms Salt "on numerous occasions" of the need to order all explosives not purchased in bulk, including detonators, weekly on Mondays.
He eventually formalised this instruction. A draft memorandum from Mr Leckie concerning, among other things, the ordering of explosives was faxed to Ms Salt at Bellevue on Friday 29 November 1996, a few days before her dismissal on 3 December 1996.
Part of the memorandum reads as follows:
"EXPLOSIVES
Bulk Explosives
All bulk explosives are to be ordered by 3.00 pm the previous day and the minimum load is to be 4 tonnes.
Packaged Explosives
All packaged explosives are to be ordered on a weekly basis by Monday morning for delivery on Wednesday"
The system of ordering appears to have been informal. There was no reference in the evidence to any records of ordering being kept. The evidence suggests that Ms Salt would call through any orders to Hytech's Kalgoorlie office, and that the office would then place the orders by facsimile with ICI Australia.
Ms Salt spoke of ringing Mr Leckie at the office on what appears to have been an ad hoc basis to place orders. She says she would leave orders, and then sometimes have to ring the office again when they had not arrived. She says that when the explosives she had ordered sometimes didn't come, it didn't make her look good.
The proposition that some of the delays through lack of supplies were due to Mr Leckie not acting on her earlier orders was raised in very general terms, and was not put to Mr Leckie. It may be that Ms Salt is referring to the orders for series detonators, the delays in supply of which were discussed earlier.
Ms Salt claims that she wasn't aware of a procedure whereby packaged explosives had to be ordered on Mondays, in order to keep special deliveries to a minimum. I accept Mr Leckie's evidence that this was raised with Ms Salt prior to the issue of the memorandum.
Mr Leckie's diary contains an entry on Tuesday 29 October 1996 stating "Note for K. Salt to make sure to order explosive on time". This was, however, several days before Ms Salt took charge from Mr Schmidt at Bellevue.
Mr Leckie's diary has an entry on Friday, 8 November, 1996 saying "trunk cord for Bellevue." Trunk cord is a plastic coated high explosive. He recalls Ms Salt advising him that they were running low. Mr Leckie recalls that Mr Sutton had to drop off the trunk cord, which was why he was present during the Vanguard misfire.
Assuming that the trunk cord should have been ordered by Ms Salt on the previous Monday 4 November 1997, the failure to place the order at that time would represent an error on Ms Salt's part when placing her first order for packaged explosives while in charge of the site.
Mr Leckie conceded that an entry in his diary for Monday 18 November saying "TLD's 42ms to Bellevue and Paint" was possibly merely an order for a future regular delivery to Bellevue.
Certainly, the purpose of Ms Salt's trip to Kalgoorlie on Thursday 21 November was to pick up detonators which were required for a blast scheduled the next day. Ms Salt suggests this was because she had ordered series detonators, and ICI Australia's Kalgoorlie office didn't have them available. Mr Leckie says they could have been ordered on the normal delivery truck.
Mr Leckie's diary indicates that on Sunday 24 November 1996 he dropped off "boosters", which are a form of packaged explosives. He had to drop off some drill steels to the drillers on that trip in any event.
Having considered the evidence, I am satisfied on balance that Ms Salt was not sufficiently efficient in her ordering of packaged explosives, and that on at least two occasions this resulted in additional cost to Hytech in arranging special deliveries.
It was appropriate for Mr Leckie to formally advise Ms Salt by memorandum of the procedures the Company required her to comply with when ordering. There was, however, no evidence of any later breaches by Ms Salt of the procedure. She had received no warnings that her occasional failure to maintain adequate supplies of explosives between deliveries was viewed so seriously by Hytech that her continued employment was in jeopardy. In the circumstances, therefore, I do not regard that failure as a valid reason for the termination of her employment.
There was evidence of an additional incident concerning the ordering of explosives. Mr De La Fontaine recalls receiving a telephone call from Ms Salt at about 8.00am on a Saturday. He says Ms Salt told him that she wanted to order explosives for a shot at Bellevue, but that she was not too sure if she wanted anfo or the more expensive emulsion explosives, known as "slurry". Mr De La Fontaine assumed that the only factors in the decision were whether or not the blast holes were wet. He says he therefore responded that she must know what she wants; he describes it as a "rule" at Bellevue that anfo is used for dry holes. According to Mr De La Fontaine, Ms Salt said she would get back to him that afternoon, but failed to do so. When the deadline for placing the order arrived, Mr De La Fontaine ordered slurry, which was more expensive but which could be used whether the holes were dry or wet.
Ms Salt gave evidence that she was not sure whether to order anfo or not on that occasion because she had wanted to achieve better results from the blast, and when she rang ICI they had advised her that slurry would give her better "heave". She recalls that she called Mr De La Fontaine and asked for his advice.
I accept that this exchange did not result from any lack of understanding by Ms Salt of the usual "rules" concerning the use of anfo.
Failure to "Bag Off"
Mr Leckie says that Ms Salt failed on numerous occasions to "bag off" excess explosives, as he had instructed her to do.
It was put to Ms Salt by counsel for Hytech that Ms Salt was told at the meeting after the Sandstone incident that the client had complained that she should have bagged off the excess anfo used in those blasts. Mr Leckie did not recall it in his evidence. Nor did Mr Dockery raise it as one of his company's concerns. I conclude, therefore, that if it were discussed at that meeting, it is unlikely to have been given any emphasis.
Shortly after 25 November 1996, an invoice crossed Mr Leckie's desk from ICI Australia, Hytech's explosives supplier, relating to a delivery of bulk explosives to Bellevue on Sunday 24 November 1996.
The invoice showed that the total bulk deliveries that day totaled only 2.049 tonnes. This indicated to Mr Leckie that Ms Salt had failed to "bag off" a further two tonnes of explosives in accordance with what he says was a standing instruction to shotfirers. Given that ICI Australia charged for a minimum delivery of four tonnes, Hytech would be required to pay for two tonnes of explosives which it did not receive and which were taken back to Kalgoorlie by ICI Australia, when those two tonnes could have been "bagged off" at the mine site and kept in the magazine for later use, had Ms Salt done as Mr Leckie says she was instructed. The value of two tonnes of Anfo - the cheapest explosive - was $1,350.00.
Clearly, this is not a trivial matter. I accept that Ms Salt would have been aware of the obligation to "bag off", and that her failure to do so is not explained by any lack of experience. Had Mr Leckie expressly relied upon this incident at the time as the reason for dismissal, then Hytech could have at least argued that its assessment that the incident warranted termination was rational and reasonable and that the incident was therefore a valid reason for termination, notwithstanding that a range of rational and reasonable views might exist as to the employer's most appropriate response: Wadey v YWCA Canberra, (Unreported, IRCA No 542 of 1996, Moore J, 12 November 1996).
However, the fact that there was no reference to the incident at the time suggests that no such assessment was made by the employer as at the time of termination. I also have some doubts as to whether enough was done to ensure Ms Salt was aware that failure to comply with the obligation to "bag off" would be viewed with such seriousness that it would place her continued employment in jeopardy. The fact that the incident was not nominated as a reason for termination at the time, and indeed was not given any prominence in the course of the hearing, leaves me in some doubt as to whether it was in fact regarded with such seriousness. On balance, therefore, I do not find it to be a valid reason for dismissal.
In any event, Hytech's failure to give Ms Salt an opportunity to defend herself with regard to the incident would have constituted a breach of Section 170DC of the Act. It is notable that the failure to "bag off" occurred on Sunday 24 November 1996, which was Ms Salt's first day back at work after her motor vehicle accident. According to the timesheets, neither Mr Mikulandra nor Mr Waters were working as her offsider on that day. Clearly there were potential explanations, if not excuses, available to her, had she been given the opportunity to raise them.
Misfires
Mr Leckie gave evidence that the most serious factor in the decision to dismiss Ms Salt were the misfires which occurred while she was shotfirer.
There was evidence that Ms Salt was responsible for three misfires; one at Sandstone and two at Bellevue. The last of these occurred on 8 November, which was a week after she was left in charge at Bellevue and more than three weeks prior to her dismissal.
There was differing evidence as to the frequency with which misfires typically occur in the industry.
Mr Dockery's evidence was that misfires are not uncommon. His estimate, based on his experience in the industry since 1986, was that misfires would occur on an average of one in ten blasts, assuming those blasts were on a large scale.
By contrast, Mr Sutton says that he doesn't see a misfire very often, and that they are mainly due to human error. Mr Mikulandra says that Mr Schmidt had no misfires over a period of five or six months. Mr Germeck says that misfires are fairly infrequent, and are usually the result of human error. He estimated that in a scenario where a shotfirer were blasting daily, one might expect a misfire once or twice a year.
Reference was made from time to time in evidence and submissions to the safety implications of misfires. It was apparent from the evidence of, among others, Mr Germeck, that the chief danger of misfires arose when the unfired charges were not successfully refired, so that those digging risk coming upon an unfired charge. That does not appear to have arisen in Ms Salt's case, though that may have been a matter of luck. I accept that the misfire problem was not a trivial issue.
I also accept that in Ms Salt's first weeks working alone as a shotfirer, misfires occurred with unacceptable frequency. I have accepted that each of these misfires resulted from her inexperience and, on the final occasion, a lack of care. However, there was no evidence that this was a continuing problem.
Finally, there is the question of Ms Salt's apparent failure to prepare a formal report concerning the Vanguard misfire. Mr Germeck agreed with Mr Leckie's understanding that there was an obligation to report misfires. Mr Germeck's understanding was that where there was a misfire, the shotfirer should investigate it and report the details to the site manager or to the registered mine manager. This could, he thought, be done verbally. It would then be the site manager's responsibility to advise the relevant authorities, probably the Western Australian Department of Minerals and Energy.
As I have indicated above, I am not satisfied that Ms Salt deliberately refused to prepare the report requested by Mr Leckie. In the circumstances, I do not find that this failure was a valid reason for termination.
Lack of Warnings
While I have considered in turn whether each of the reasons raised by Hytech constitutes a valid reason for dismissal, I am also satisfied that they do not cumulatively provide a valid reason for her dismissal.
One factor common to many of the proposed grounds for dismissal was Hytech's failure to warn Ms Salt in relation to any perceived shortcomings in her conduct and performance. It was conceded by Mrs Baker that Hytech has no system of formal warnings in place. This case illustrates the dangers which might have been avoided had such a system been followed. A warning is different from a mere exhortation to improve: Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 per Wilcox CJ at 60. A warning involves making the employee aware that a failure to improve will place his or her continued employment in jeopardy. The best that Hytech can contend is that Mr Leckie told Ms Salt on one occasion with regard to her irregular "marking up" that she should get her "shit together or piss off". While certainly direct, the lack of formality in the manner in which that statement was made would tend to diminish both its gravity and its clarity.
Had Hytech formally warned Ms Salt about the specific perceived shortcomings in her performance, then Hytech would have clearly "drawn the line" and left Ms Salt in no doubt as to the standards of performance required of her. In those circumstances, assuming the standards are reasonable and that there is no acceptable excuse for a continued failure to meet them, the Court is more likely to find that a continued failure to meet those standards would constitute a valid reason for dismissal. There can then be no argument that the employer has accepted or condoned shortcomings in performance in the past, or that the employee was unaware of what was required of them.
While, in my view, a written warning is not always required, written warnings imply a formality and gravity such that the employee might less plausibly overlook their seriousness. Written warnings also have obvious evidentiary advantages.
Time sheets
The shotfiring crew were paid according to the hours they worked, which they were required to record on a daily timesheet.
Mr Leckie says that it was his practice to instruct new employees on how to fill out their time sheets. He believes he would have so instructed Ms Salt, but he does not specifically recall doing so.
Ms Salt claims that Mr McPherson taught her how to fill in time sheets on her first day at work. She says he told her to write down twelve hours worked every day. She recalls that he effectively told her that the company would "screw" her, so she may as well screw the company. She says she generally "did as she was taught by Mr McPherson", though there were days when she wrote down fewer hours, and noted early finishes.
Mr Leckie says that Ms Salt's filling out of time sheets was satisfactory when she was at Bannockburn with Mr McPherson. Ms Salt's time sheets were not tendered for the period when she was under Mr McPherson's supervision. However, her pay slips for the period appear to indicate that she was usually being paid for working at least twelve-hour days during the five week period up to 9 October 1996. (Her diary shows that she had two rostered days off, and went on leave on 8 October 1996).
Mr Leckie says that Ms Salt's filling out of time sheets at Bellevue was satisfactory to begin with, but then went "downhill".
Ms Salt's time sheets from 14 October 1996 until 3 December were tendered into evidence, as were those of Mr Schmidt for the period that he was her supervisor. They show the following hours worked, and activities:
|
Employee | Date | Start | Finish | Lunch | Hours
Worked | Description of Duties Performed | Other
Information? |
| D. Schmidt | 14/10/96 | 5.30 | 5.30 | 0.5 | 11.5 | General Duties on Shot. | No |
| Kelly Salt | 14/10/96 | 7.00 | 5.30 | 0 | 10.5 | Travel to Bellevue. Charge Some Holes - Henderson Pit | No |
| D. Schmidt | 15/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. | No |
| Kelly Salt | 15/10/96 | 5.30 | 6.00 | 0.5 | 12 | primed, charged & stemmed Henderson Pit | No |
| D. Schmidt | 16/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. | Yes
(2 sheets) |
| Kelly Salt | 16/10/96 | 5.30 | 6.00 | 0.5 | 12 | Tied in shots at Henderson. Blasted Henderson. | No |
| D. Schmidt | 17/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties Drilled. | Yes |
| Kelly Salt | 17/10/96 | 5.30 | 6.00 | 0.5 | 12 | Pattern Mark-up, Henderson. primed, charged & stemmed, tied in Henderson. Blasted Henderson | No |
| D. Schmidt | 18/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. Drilled 4 hours. Samples Depth10 mtrs 4 holes. Depth 15 Mtrs 4 holes. Total hard metres = 100mtrs. Rig 30
standby 8 hours. | Yes |
| Kelly Salt | 18/10/96 | 5.30 | 6.00 | 0.5 | 12 | primed, charged, stemmed Henderson. Tied in & tied Henderson. Pattern mark-up. | No |
| D. Schmidt | 19/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. | Yes |
| Kelly Salt | 19/10/96 | 5.30 | 6.00 | 0.5 | 12 | General shot duties. Henderson pit. Pattern mark-up. | No |
| D. Schmidt | 20/10/96 | 5.30 | 4.00 | 0.5 | 10 | General Shot Duties. | No |
| Kelly Salt | 20/10/96 | 5.30 | 4.00 | 0.5 | 10 | General Shot Duties. | No |
| D. Schmidt | 21/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. | No |
| Kelly Salt | 21/10/96 | 5.30 | 6.00 | 0.5 | 12 | Pattern mark up. Henderson pit. General Shot Duties. | No |
| D. Schmidt | 22/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | Yes |
| Kelly Salt | 22/10/96 | 5.30 | 6.00 | 0.5 | 12 | primed, charged etc Henderson. General Shot Duties. | No |
| D. Schmidt | 23/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | Yes
(2 sheets) |
| Kelly Salt | 23/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. Pattern mark up. | No |
| D. Schmidt | 24/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. Drilled 25 holes. Depth 5.5 137.5mtrs. 5 hours. Soft = 37.5 Hard = 100mtrs | No |
| Kelly Salt | 24/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. drilled | No |
| D. Schmidt | 25/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Duties on Shot. | Yes |
| Kelly Salt | 25/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. Pattern mark up. | No |
| D. Schmidt | 26/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 26/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| D. Schmidt | 27/10/96 | 6.00 | 4.30 | 0.5 | 10 | General Duties on Shot. Drilled | No |
| Kelly Salt | 27/10/96 | 6.00 | 12.00 | 0 | 6 | General Shot Duties. | No |
| D. Schmidt | 28/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | Yes |
| Employee | Date | Start | Finish | Lunch | Hours
Worked | Description of Duties Performed | Other
Information? |
| Kelly Salt | 28/10/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| D. Schmidt | 29/10/96 | 5.30 | 6.00 | 0 | 12.5 | General Shot Duties. Fired instantly with no delays. 4.5mtrs of foam balls in waste holes. Ore holes not stemmed. | Yes |
| Kelly Salt | 29/10/96 | 5.30 | 6.00 | 0 | 12.5 | General Shot Duties. | No |
| D. Schmidt | 30/10/96 | 5.30 | 5.00 | 0 | 11.5 | General Duties on Shot. | No |
| Kelly Salt | 30/10/96 | 5.30 | 10.00 | 0 | 16.5 | General Shot Duties. Travel to Kalgoorlie, travel back to Bellevue | No |
| D. Schmidt | 31/10/96 | 5.30 | 6.00 | 0 | 12.5 | General Shot Duties. | Yes |
| Kelly Salt | 31/10/96 | 5.30 | 6.00 | 0 | 12.5 | General Shot Duties. | No |
| D. Schmidt | 1/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 1/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| D. Schmidt | 2/11/96 | 0 | R.D.O. | ||||
| Kelly Salt | 2/11/96 | 0 | R.D.O. | No | |||
| D. Schmidt | 3/11/96 | 5.00 | 6.30 | 0 | 13.5 | Travel to Bannockburn. General Shot Duties. | No |
| Kelly Salt | 3/11/96 | 5.30 | 6.45 | 0.5 | 12.75 | General Shot Duties. | Yes |
| Kelly Salt | 4/11/96 | 5.30 | 6.30 | 0.5 | 12.5 | General Shot Duties. | No |
| Kelly Salt | 5/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | Yes |
| Kelly Salt | 7/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | Yes |
| Kelly Salt | 7/11/96 | 5.30 | 5.30 | 0 | 12 | General Shot Duties. | No |
| Kelly Salt | 8/11/96 | 5.30 | 6.30 | 0.5 | 12.5 | General Shot Duties. | Yes |
| Kelly Salt | 9/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 10/11/96 | 6.00 | 3.00 | 0.5 | 8.5 | General Shot Duties. | No |
| Kelly Salt | 11/11/96 | 0 | R.D.O. | No | |||
| Kelly Salt | 13/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 13/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 14/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | Yes |
| Kelly Salt | 15/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 16/11/96 | 5.30 | 6.00 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 17/11/96 | 9.00 | 12.00 | 0 | 3 | Shot Duties | No |
| Kelly Salt | 18/11/96 | 6.00 | 6.00 | 0.5 | 11 | General Shot Duties. | No |
| Kelly Salt | 19/11/96 | 7.00 | 5.30 | 0.5 | 10 | General Shot Duties. | No |
| Kelly Salt | 20/11/96 | 6.00 | 6.30 | 0.5 | 12 | General Shot Duties. | No |
| Kelly Salt | 21/11/96 | 5.30 | 2.00 | 0.5 | 8 | Pattern mark up. General Shot Duties. | No |
| Kelly Salt | 22/11/96 | 0 | Sick day - Blast (Blast duties performed by Noel Armitage - A.W.P.) | Yes | |||
| Kelly Salt | 24/11/96 | 8.30 | 4.00 | 0.5 | 7.5 | Shot duties | Yes |
| Kelly Salt | 25/11/96 | 5.30 | 6.00 | 0.5 | 12 | Shot duties | Yes |
| Kelly Salt | 26/11/96 | 5.30 | 6.00 | 0.5 | 12 | Shot duties | Yes |
| Kelly Salt | 27/11/96 | 6.00 | 6.00 | 0.5 | 11.5 | Shot duties | No |
| Kelly Salt | 28/11/96 | 5.30 | 6.00 | 0 | 12.5 | General Shot Duties. | Yes |
| Kelly Salt | 29/11/96 | 6.00 | 6.00 | 0 | 12 | Shot duties Paperwork etc Travel to Bannockburn, pick up boosters, travel back to Bellevue. Pattern mark up. | No |
| Kelly Salt | 30/11/96 | 5.30 | 6.00 | 0 | 12.5 | Shot duties. primed, loaded, stemmed, tied in shot | Yes |
| Kelly Salt | 1/12/96 | 6.00 | 2.00 | 0.5 | 7.5 | Magazine stocktake. Pattern mark up. Paperwork etc. General Shot Duties. | No |
| Kelly Salt | 2/12/96 | 6.00 | 4.00 | 0.5 | 9.5 | Await Geo. assay Mark up - 4 hrs. Pattern mark up - 2 hrs. Travel to Leinster & return to see doctor about final medical for Michelle
in Perth. Order ICI Truck - 3 hrs | No |
|
Employee | Date | Start | Finish | Lunch | Hours
Worked | Description of Duties Performed | Other
Information? |
| Kelly Salt | 3/12/96 | 5.30 | 12.00 | 0 | 6.5 | Re-ordered Truck. Morning meeting in Pitt. Pattern mark up. Talk to Geo's about waste/ore line. Saw ICI about patterns, fragmentation.
| No |
The time sheets at Bellevue were usually counter-signed by Mr Les Jones, the AWP Site Manager. However, AWP did not have a financial interest in the hours worked by Hytech's employees, because Hytech's charges were based upon the meters blasted. I accept that it is unlikely therefore that Mr Jones would have gone to any effort to check that the hours claimed were correct. Mr Jones did not give evidence.
Mr Mikulandra confirms that he and Ms Salt sometimes recorded on their time sheets that they had worked twelve hours when in fact they had worked less.
Mr Waters said that when he first began at Bellevue, Ms Salt told him, "Up here we do twelve hours a day every day." In fact, according to Mr Waters, they sometimes only worked six, seven or even eight hours before going home to the camp, having run out of things to do. He says they would nevertheless write twelve hours on their time sheets. While he now concedes that the hours logged were false, he recalls being pleased with the arrangement at the time.
Mr Leckie's diary contains an entry on Saturday 2 November 1996 stating "Memo to Bellevue about Hrs to be worked". This entry was not explained. It should be noted that Mr Schmidt had not left Bellevue at that point.
Mrs Baker says that she checked time sheets as they came through to the Perth office each day. She says she noticed that at Bellevue, there wasn't much blasting being conducted, but that considerable hours were being claimed. The shotcrew was regularly logging twelve hour days when eight to eleven hour days would have been normal.
She says she rang Mr Leckie and spoke to him about it. They agreed to draw up a memorandum.
A draft memorandum was drawn up in the Perth office concerning, among other things, the completion of time sheets by shotfirers and shotcrew. It was forwarded to Mr Leckie and issued under his name on Friday 29 November 1996. A copy was faxed to Ms Salt at Bellevue. The terms of the memorandum received by Ms Salt were as follows:
"TO: ALL SHOTFIRERS & SHOTCREW
FROM: ALAN LECKIE
DATE: 29 NOVEMBER 1996
RE: TIME SHEETS
The following remarks are to be filled out on all Time sheets.
SHOTFIRERS
Time spent at meetings (ie) 06.00 to 6.45.
Time spent marking up patterns (ie) 6.45 to 9.00.
Time spent priming up shot
Time spent on rubbish runs
Time spent on loading stemming and tying in shots
Time the shot is fired.
Time spent on checking and stocking magazines
Time spent on dipping of holes and phone calls
Time the driller spent working on the shot and their name
SHOTFIRERS ASSISTANTS
Time spent marking up patterns (ie) 6.45 to 9.00.
Time spent priming up shots.
Time spent on rubbish runs.
Time spent on dipping holes
Time spent on Blast guards
If this is not carried out on your time sheets you will not be paid for that day as at 1 December 1996."
On receipt of the memorandum, Ms Salt rang Hytech's Perth office, and spoke to the Office Manager, known as "Petra". Ms Salt asked her what the memorandum was about, and complained that she was too busy to provide the level of detail that they were requesting.
It appears from the time sheets summarised above that Ms Salt began completing her time sheets in greater detail, at least partly complying with the memorandum on 1 December 1996. It is, in my view, unlikely that the reduction in hours claimed by Ms Salt on 1 and 2 December 1996 was a coincidence, given that the duties performed could otherwise have been described as "general shot duties".
Of the numerous matters raised by Hytech, the overstatement by Ms Salt of her hours is, in my view, the most serious. It has resulted in her obtaining a considerable benefit at her employer's expense. It would also appear to involve obvious dishonesty.
However, I note the context in which it occurred. The extent of Ms Salt's wages received while she was at Bannockburn leads me to accept her evidence that she was instructed by Mr McPherson to note down twelve hours worked as a matter of course.
Nothing was said about Mr Schmidt. However, in the period while Ms Salt was being supervised by Mr Schmidt at Bellevue, the hours recorded by Mr Schmidt:
* equalled or exceeded those recorded by Ms Salt on any given day;
* averaged 11.9 hours per working day; and
* equalled exactly "12" on thirteen out of twenty working days.
The hours recorded by Ms Salt in the period from Mr Schmidt's departure to the issuing of the memorandum averaged 11.4 hours per working day, which is less than when Mr Schmidt was there.
I am led therefore to the inference that the hours recorded by Ms Salt in this period were not an individual aberration on her part, but rather were part of a pattern of behaviour amongst all the shotfirers and the crews with which she had worked.
In these circumstances, behaviour which would otherwise be unequivocally dishonest could seem ambiguous to a new employee, who might regard it as a "fiction" tacitly accepted by the employer. However, Ms Salt's evidence that the practice was described to her by Mr Paterson as "ripping off" the company tends to undercut this argument, and leads me on balance to reject it in this case.
The second issue that arises in the circumstances is the fact that, notwithstanding the evidence that the overstatement of hours appears to have been a widespread factor, it appears that only Ms Salt was singled out for dismissal as a result.
On one view of the phrase "valid reason", this would be irrelevant. The employer's action was a reasonable and defensible response to Ms Salt's actions, when viewed in isolation, and that is an end to the matter.
However, there are now numerous decisions concerning this legislation wherein the phrase "valid reason" has been held to embrace issues of fairness or injustice (eg Nettlefold v Kym Smoker Pty Ltd, (1996) 69 IR 370.
It is an essential element of fairness that like cases be treated consistently. While Hytech's decision to dismiss Ms Salt may be justifiable when viewed in isolation, it ceases in my view to be justified or defensible when the apparently identical actions of others are not similarly punished or even, it seems, investigated. In all the circumstances, I am not therefore satisfied that Ms Salt's overstatement of hours constituted a valid reason for the termination of her employment.
Whether the Applicant was Given the Opportunity to Defend Herself against the Allegation
Section 170DC of the Act provides that:
"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity."
Ms Salt's termination came without warning. Indeed, Mr Leckie was deliberately evasive when Ms Salt queried the role of the new employee with him.
The only issue raised with Ms Salt was her alleged incompetence, and even that was raised after she had already been advised of the decision to terminate her employment. If Mrs Baker's evidence were accepted, then Mr Leckie was conveying a decision she had already made.
It was reasonable in these circumstances to give Ms Salt an opportunity to defend herself against the many allegations which have been considered above. This is not a case where it can be assumed that the failure to provide the opportunity was unlikely to have made any difference. Ms Salt had a lot she could have said both as to the validity of the allegations against her and as to alternative responses to those perceived problems.
Accordingly, if I am wrong with regard to my findings in relation to Section 170DE(1) of the Act, then I would in any event have ordered more than nominal compensation for the clear breach by Hytech of Section 170DC.
Compensation
It is agreed that at termination, Ms Salt was paid a week's wages in lieu of notice at her base rate. As it is not apparent from the payslips in evidence, I have assumed this amounted to $456.00, being 38 hours @ $12.00 per hour.
Ms Salt returned to Queensland for Christmas, and has picked up some intermittent casual work for ICI Australia on a shot-crew in North Queensland. She has also obtained employment as a casual bar attendant in Charters Towers. Given that her employment as a shotfirer had been terminated on the grounds of incompetence it was not in my view unreasonable of her not to seek new employment as a shotfirer in the W.A. goldfields. I am satisfied that she has taken reasonable steps to mitigate her loss.
In assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.
With regard to the remuneration that Ms Salt would have received had she not been dismissed, I consider it unlikely that her rate of pay would have increased on 4 December 1996, as Mr Leckie says would usually have been expected, given Hytech's dissatisfaction with her performance. Nor, however, is there sufficient evidence to lead me to conclude that it is more likely than not that Ms Salt's performance would have remained such that her employment would have come to an end in any event in due course.
I am thus assuming that Ms Salt would have remained employed with Hytech, but I am not assuming any increase in her rate of pay. Given the memorandum concerning the recording of her time and its apparent effects, I am proceeding on the basis that the hours paid in future would have been less, and am adopting an estimate for future earnings of nine hours work per day. Based on her time sheets while working at Bellevue, Ms Salt has had an average of one day off every 12.75 days. For calculations of likely future income, I am assuming an average of one day off per week, given her accrued entitlements to leave.
On that basis, I calculate that Ms Salt's average daily earnings on the first five days of the week would have been $114.00, and that her average earnings for the sixth day of the week would have been $204.00. Her average weekly earnings would thus have been $774.00. This is significantly less than Ms Salt was being paid in the weeks before her dismissal, but this reflects the fact that the additional hours she was claiming were all at overtime rates.
Based on those presumed weekly earnings, Ms Salt would have earned $21,990 in the 29 weeks between her dismissal and the conclusion of this hearing (after deducting the pay in lieu of notice).
In an affidavit, she indicates that her income since termination as at 21 July 1997 comprises $12,223 from her casual shotfiring work, and $572 net from her bar work.
I therefore calculate her loss of gross income as at the date of hearing to be about $9,000.
It is likely, however, that she will continue to incur loss until she obtains full-time employment. I will therefore award a further amount in recognition of that contingency.
Conclusion
I will order that the respondent pay to the applicant the sum of $12,000.00 in compensation pursuant to Section 170EE(2) of the Act.
The terms of the order will take into account any obligation on the employer to withhold Tax from the payment.
I certify that this and the preceding 38 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.
Associate:
Dated: 8 September 1997
APPEARANCES
Counsel appearing for the applicant: Mr G.M. Jordon
Solicitors for the applicant: Michael Cockram & Associates
Counsel appearing for the respondent: Mr P. Vincent
Solicitors for the respondent: S.C. Nigam & Co
Dates of hearing: 23, 24 and 25 June 1997
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1997/919.html