FWC upholds driver dismissal over microsleep event

Commission backed company investigation into policy compliance

FWC upholds driver dismissal over microsleep event
The incident marked a second serious breach in a six-month period


The Fair Work Commission (FWC) has backed mining company BHP in an unfair dismissal case after a dump truck driver was fired following a fatigue event.

George Barnes was an employee at BHP’s Saraji Mine when, on October 6, 2018, operating a rear dump truck, he suffered a microsleep and made contact with a haul road bund, before eventually reporting the event and stopping the vehicle.

In an internal investigation, BHP found the driver continued for about 2km before stopping, representing "a failure to appropriately report the incident and preserve the scene" and "a failure to comply with its policies and procedures".

He was dismissed on 17 January 2019 following the investigation.

It was noted that, despite employed by BHP since 2004, the driver was dismissed "together with a consideration of a final written warning issued to the Applicant on 18 July 2018, following a prior safety incident".

The Saraji event marked "involvement in two High Potential Safety Incidents [HPI] within a six month period".

The commission case centred around compliance with the relevant policies in BHP’s Generic Surface Mobile Equipment Training Manual.

The employee had undertaken training on in 2014 and 2017, "and was therefore familiar with his obligations under the Manual, requiring someone to immediately stop and report an accident", BHP contended.

The driver admitted he did not stop immediately due to "being in a state of confusion" but argued the stopping distance was 300m rather than the alleged 2km – and that, upon making contact to his supervisor, "no person from dispatch indicated or instructed me to do anything about the incident, including preserving the scene".

There was also conjecture about the manual’s distinction between an ‘incident’ and an ‘accident’: "… in an accident someone injured and/or mobile equipment damaged, in an incident/near miss the causes may be the same as an accident but there is no obvious loss – is injury/damage."

The driver argued that driving onto the bund but with no injury or damage could only be characterised as an incident, which does not create an obligation to preserve the scene. BHP rejected this.

BHP was recently fined for an injury to a Linfox driver delivering fuel


"The Applicant’s decision to continue driving the vehicle after the collision was a breach of his obligations under the Manual and demonstrated a contemptuous disregard for the safety of others," the commissioner noted.

"The Manual unequivocally requires persons who are exhibiting signs of fatigue to stop work. The Applicant had experienced a micro sleep, and then proceeded to continue operating the vehicle.

"The Respondent submitted that this micro sleep clearly constituted symptoms of someone who was dangerously fatigued.

"By continuing to operate the vehicle for a further 1.9km, after having had just fallen asleep at the wheel, failing to investigate the vehicle or scene for damage, and being in a state of confusion, the Applicant contravened his obligations under the Manual.

"The Respondent submitted that by choosing to continue to operate the vehicle, despite being aware of alternative options available to him, the Applicant made a decision to engage in a course of conduct that he knew presented a risk to others."

On the distinction between incident and accident, BHP "did not accept the Applicant’s view that the event was only an incident not an accident, due to lack of injury and or mobile equipment damage and as the event was only an incident (as the Applicant, as suggested) he was not required to preserve the scene as per the Generic Service Mobile Equipment Training Manual.

"His finding was that it was necessary for the Applicant to stop at the scene to consider the situation for any obvious injury or damage to personal equipment. His finding was that the Applicant did not do this, and this was a breach of policy."

The FWC backed BHP’s internal investigation and was "satisfied that there was a valid reason for dismissal", ruling that the driver:

  • did not report the incident as soon as reasonably practicable; and
  • should have, and did not, immediately park-up.
  • in circumstances where an experienced mine employee says he fell asleep while driving a very large, very expensive and very dangerous piece of equipment, the Applicant’s conduct is alarming.


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