Mr Stephen Maguire was employed by BHP as a Track Maintenance Coordinator and an ‘appointed person’ under s 22 of the Occupational Safety and Health Act 1984 (WA). On 12 Jan 2019, a work order required the changing of rail pads which sit between the rail foot and the sleeper. The rail was lifted using a ‘pancake jack’ at a height of about 30-50 mm. All workgroup members were out of line of fire apart from one track maintainer who was using the pancake jack to lift the rail. The maintainer was standing 1m from the rail. 

After jacking, the maintainer stood back after being in the line-of-fire as the 1 tonne piece of rail bowed outwards. The rail was bowed approximately 150 mm over 8.4 m of track. The workgroup then stopped and discussed what to do. The workgroup agreed to water down the rail and use gauge bars to bring the rail back into alignment with the use of chains and binders. 

BHP launched an investigation. After finalising the incident, a dismissal letter was provided stating their loss of faith in Maguire’s ability to safely perform the role towards himself and others. Maguire was subsequently provided with a termination payment of five weeks. Maguire launched Fair Work proceedings for harsh, unjust or unreasonable dismissal. 

Fair Work reviewed the incident and the findings of BHP HSE representatives. The Commission determined and assessed the evidence regarding a ‘number of failures by Maguire…to comply with BHP’s policies and procedures’. The Commission stated:

  1. The stored energy event happened under Maguire’s watch which resulted in the section of the rail track to bow out of alignment. 
  2. Maguire did not ensure all personnel signed-on to the prestart briefing.
  3. Maguire did not ensure a JHA was performed for the task.
  4. Maguire did not provide or use/adhere to the work instruction. 
  5. Maguire failed to acknowledge or assign the ‘proper’ risk rankings of the task on his own Take 5 (said the risk was ‘moderate’ for being within the line-of-fire of a 1 tonne beam).

Fair Work deemed the sacking was not harsh, unjust or unreasonable. The case highlights the need for all personnel to discharge all their respective duties with care under the respective OSH/OHS/WHS legislation.

Case note: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2019/8046.html?context=1;query=occupational%20safety%20and%20health;mask_path=