[2013] FWC 4291

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Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Keith Rose
Tahmoor Coal Pty Ltd



Unfair dismissal application, summary dismissal, valid reason, repeated warnings about conduct, dismissal not harsh unjust or unreasonable.

[1] This decision concerns an application made by Mr Rose under s.394 of the Fair Work Act 2009 (the FW Act). He seeks an unfair dismissal remedy in respect of the termination of his employment by Tahmoor Coal Pty Ltd (the employer or the respondent).

[2] In the hearing before me the applicant was represented by Mr Thomas and the respondent by Mr Murdoch of counsel. A large number of witness statements and documentary evidence was tendered by both parties. The applicant filed a witness statement and gave oral evidence. The following persons were also called in support of the applicant’s case:

[3] The following witnesses each filed a statement on behalf of the respondent and, except for Ms Parsons, each gave oral evidence.

[4] I should indicate that as is apparent from the findings I have made there were numerous meetings between the applicant, his representatives and representatives of the respondent. I have not, on each occasion, listed the names of all of the persons who were in attendance at every meeting. Generally, I have only referred to the principal representative of the respondent and the applicant however where it is of some relevance to identify the attendees at a particular meeting I have done so.

The evidence - my findings

[5] I now proceed to record the findings I make based on all of the evidence that has been led in this matter.

[6] The applicant commenced employment as an apprentice fitter in January 1975 with the then owner of the Tahmoor mine. He has worked at the mine as a fitter since that time until his dismissal. The ownership of the mine has changed on a number of occasions. It is not entirely clear what date the respondent took over the mine but it seems to have been in around 2008-2009.

[7] On 3 August 2012 the applicant was dismissed. The reason for his dismissal was described as being for repeated misconduct. I return to this at the end of this chronology of relevant facts.

[8] The respondent operates an underground coal mine in the town of Tahmoor in the State of New South Wales. There are three main sections at the mine and these are the Longwall, Outbye Services and Development.

[9] On 1 March 2010 the applicant participated in a safety training re-accreditation course conducted by the Southern Mines Rescue Station (SMRS). The course was described as a refresher course in the respondent's safety systems. All employees were required to attend the course and obtain a competency assessment.

[10] Ms Parsons, the respondent's Health, Safety and Training Manager, was contacted by Mr Gosling who was a trainer with SMRS. Mr Gosling made some comments criticising the applicant and the way he had conducted himself in the course. The applicant had failed to complete the assessment and to answer questions asked of him including critical safety questions. Mr Gosling was unable to assess the applicant as competent. Mr Vale, upon being advised of the above details, decided to retain Blake Dawson (as they were then known) to interview Mr Gosling about this matter.

[11] On 5 March 2010 Mr Vale had a meeting with the applicant and his representatives. Notes were taken of the meeting. Allegations were put to the applicant about his performance at the SMRS course and comments that he had made. The applicant had said he asked a few questions and thought there had been a healthy debate. At the end of the meeting the applicant was advised that he was being stood down on full pay until a later date and that an investigation into his behaviour would continue.

[12] On 18 March 2010 Mr Vale was provided with a written report from Blake Dawson. The report was in evidence and identifies the documents Blake Dawson had considered together with details of their interview with Mr Gosling. Mr Gosling had described the applicant’s behaviour as disruptive. He had made numerous negative comments which undermined the messages Mr Gosling was trying to relate to course participants. His behaviour had extended the time the course would otherwise have taken. The applicant was vocal in his criticisms of the respondent, the respondent's safety performance and its procedures and also critical of Mr Gosling. It seems that he used some colourful language to do so (although it seems that he wasn’t the only one in the course using similar language). The various comments Mr Gosling attributed to the applicant are reproduced in the report. The applicant had failed to answer a number of questions in the assessment form, provided minimal detail in his answers to other questions and gave incorrect answers to others. Mr Gosling was not prepared to sign off on the applicant as being competent in all aspects of the program.

[13] A further meeting was held with the applicant on 26 March 2010 again with representatives of the respondent and CFMEU when the findings in the Blake Dawson investigation were discussed. The applicant was advised that the respondent intended to terminate his employment unless he could show cause why that should not occur. In subsequent meetings representations were made by the CFMEU on the applicant's behalf as to why his employment should not be terminated. The respondent decided it would not terminate him but instead would give him a first and final warning and place him on Step Three of the Corrective Action Procedure (CAP).

[14] The CAP is contained to in the Tahmoor Colliery Site Enterprise Agreement 2010 1 (the Enterprise Agreement). Step Three is the highest and most serious step contained within the procedure.

[15] In making its decision to give a warning to the applicant rather than terminate his services the respondent relied on comments made by CFMEU representatives (and Mr White in particular) that they would make sure the applicant did the right thing in the future. Mr White disputes that he said this. He accepted he was genuinely concerned for the future employment of the applicant at the time and accepted he had asked for him to be given a go and said he would keep “an eye on him”. 2 At around this time the applicant attended a SMRS training course again and was assessed competent.

[16] On 30 March 2010, Mr Vale had a meeting with the applicant and gave him a document which was described as a first and final warning. 3 It set out the respondent's concerns about the applicant's behaviour at the SMRS course, which it described as misconduct. It referred to the professional and behavioural expectations the respondent had of the applicant. He was advised that his progress would be reviewed in six months time and that any similar misconduct would "almost certainly" result in dismissal. The applicant signed the document. At this time the respondent also decided to move the applicant to day shift in order to be able to better monitor and assess his behaviour.

[17] On 2 June 2010 the applicant attended a Minimising Accidents Through Excellent Safety (MATES) meeting. These meetings were held regularly. The Superintendent reported that the applicant had made negative comments about the MATES process and had been spoken to by the Chairman of the committee. The superintendent prepared a brief note about the applicant’s behaviour. It recorded that the applicant had been negative about the process and needed to be warned to be positive or leave the meeting.

[18] On 8 June 2010 the applicant was working on the 901 panel and the Development Coordinator was trying to get contractors into work on a problem on the panel. The applicant was not cooperating and was making comments about contractors coming in. To give a flavour of the type of comment I note the Development Coordinator’s memo 4 indicating the applicant saying "no one comes past that fucking tag board and you cunt's make the rules you work by them". The Coordinator had directed that the applicant should be taken out of the area but it appears that due to the particular time of the shift the applicant would be leaving the area in any event.

[19] On 9 June 2010 a meeting was held with the applicant and he was formally counselled about his conduct on 2 and 8 June. A file memo titled "Formal interview for unsatisfactory behaviour" records the applicant did not accept he had been negative but that he just had a difference of opinion. The applicant signed the memo. 5

[20] On 30 September 2010 Mr Vale reviewed the Applicant's behaviour and he decided the applicant should remain on Step Three of the CAP as there had been no improvement in his behaviour. The applicant requested that he be put on afternoon shift so he could attend to responsibilities he had in respect of his parents.

[21] On 22 October 2010 the applicant was provided with a memo titled "Ongoing personal performance monitoring". 6 It referred to a number of conditions placed on his ongoing employment. It recorded a number of matters he needed to adhere to. His behaviour was going to be monitored and regularly reviewed. In accordance with his request, the applicant was placed on the afternoon shift. The memo went on to set out a number of professional and behavioural expectations.

[22] On 29 November 2010 and 2 December 2010 the Applicant attended a training course conducted by Eickhoff Australia Pty Ltd which was referred to as the Eichoff shearer training sessions. An Eickhoff shearer had been purchased by the respondent and it was necessary for operators and tradesmen to attend training on the equipment. At the time the applicant was allocated to the longwall and the respondent indicated that that is where the shearer would operate and he may be called upon to maintain or repair it. A report was given to the respondent, by the trainer, advising that the applicant had been very negative throughout the training session. Based on his performance and his inadequately completing the assessment documentation the trainer was not able to certify him as competent. The trainer sent a memo to the respondent giving examples of why he had assessed the applicant as negative and confirming that the applicant had failed as a result of his performance and incomplete written assessment. 7 Mr Vale decided to engage Blake Dawson to conduct interviews with the Eickhoff trainers to ascertain what had occurred.

[23] On 2 December 2010 Mr Vale met with the applicant to talk to him about the Eickhoff shearer training sessions. He was advised that the respondent had received complaints about his behaviour and that he was being stood aside on pay whilst an investigation was being conducted.

[24] On 6 December 2010 Mr Vale received a written report from Blake Dawson. It addressed the trainer’s observations of the applicant in respect of his attendance at training courses on 29 November 2010 and 2 December 2010. The report is detailed but it is adequate to note that the trainers formed the view the applicant was not interested in the training. Their view was that the applicant considered it to be "crap" and he didn't think he needed to learn it, it was not his job and it was more to do with operators responsibility. He was argumentative with the trainers. He declined to sign off on documentation as requested by the trainers. He left the November training session before it was completed. On 2 December the applicant was described as being like a different person. He attended that session after the meeting with Mr Vale referred to in the previous paragraph. He sat at the front of the room and participated actively in the session. He apologised to one of the trainers for not signing off on the practical aspect of the training on the previous session. He asked one of the trainers if he had put in a complaint about him to which the trainer said he had.

[25] On 10 December 2010 Mr Vale had a meeting with the applicant at which others were also in attendance. Mr Vale put to the applicant allegations that had been made about his behaviour at the Eickhoff shearer training sessions. Mr Vale also referred to the previous meeting where the applicant had been asked at all times to actively participate in training. The applicant said he had not made the comments attributed to him. He said he did not refer to the training session as "crap" and accepted it was necessary for him to attend the training. He was advised that the respondent was still investigating the matter and a further meeting was arranged for 16 December.

[26] On 13 December 2010 the applicant wrote a letter to Mr Vale referring to the meeting of 10 December and indicating that he wished to apologise for any problems which had "allegedly inadvertently occurred as a result of the Shearer training". He recorded that he understood his obligation as an employee and would endeavour to be perceived as a positive participant in future training sessions. 8

[27] On 16 December 2010 Mr Vale had a meeting with the applicant and others were also in attendance. Mr Vale referred to the applicant’s behaviour at the Eickhoff shearer training session on 29 November and said that in light of his behaviour the respondent was considering his future employment. Notes concerning the discussion at the meeting were in evidence. Mr Timbs told Mr Vale that he would give him some information about the applicant. Mr Vale said that Mr Timbs had asked the company to give the applicant “one final last warning”. Mr Timbs denies he said this but accepts he knew that at that time the applicant was on Step Three of the CAP and it was better he continued on his final warning rather than be dismissed. 9

[28] On 20 December 2010 there was a meeting with Mr Vale, the applicant and other persons including Mr Timbs. Mr Timbs said the applicant was suffering from some mental health issues. He suggested that there may be some issues or implications associated with the “Mental Health Act” and if the applicant was dismissed there may be proceedings in Fair Work Australia (FWA). Some documents were handed to Mr Vale at that time and a further meeting was arranged for the following day. The documents, which were in evidence, recorded that the applicant had been undertaking counselling sessions. 10 Reports from a psychologist and a counsellor were included together with a medical prescription provided to the applicant. I do not propose to refer in this decision to the detail contained in these documents.

[29] On 21 December 2010 there was a meeting between Mr Vale, the applicant and other representatives (including Mr Timbs). The discussion was held about the applicant taking personal leave until he sorted out his personal issues. Subsequently, the applicant went on personal leave and annual leave until February 2011. The respondent decided it was not appropriate to take further action at that time concerning the applicant’s performance at the Eickhoff shearer training sessions.

[30] When the applicant returned from leave, Mr Vale, the applicant and other representatives had a meeting. This was on 25 February 2011. Mr Vale advised the applicant what the respondent's expectations were of him. A memo dated 25 February 2011 was provided to the applicant. He was to remain on Step Three of the CAP and would revert to his "home shift" of weekend dayshift as a member of the outbye crew. A list of professional and behavioural expectations were contained in the memo. Included in those expectations was a requirement for him to actively and positively participate in training sessions. Requirements for him to complete SLAMS and MATES observations were set. He was informed that a review would be conducted in 12 months time. The applicant signed a copy of the memo.

[31] The 12 monthly review did not occur in February 2012. At that time the applicant had approached Mr Vale to organise a meeting to review his progress. Mr Vale had proposed to organise a meeting but due to his absences and the applicant’s that did not occur.

[32] At some stage prior to May of 2012, Mr Vale become aware of a number of hazard reports that the applicant had prepared which contained comments that he thought were unacceptable. A hazard report is a document where an employee may identify potential hazards and safety issues. Employees were encouraged to complete such reports if they identified a potential hazard. Mr Vale asked Mr Priest, who at the time was the Superintendent for Outbye Services, to speak to the applicant about the comments he was making in these reports. Such a discussion apparently occurred on 18 May 2012 and a note concerning it was in evidence. 11 The respondent’s concern was not that the applicant was completing such reports but it was the sarcastic comments he was making in them. He was also filling out the forms without himself attempting to make the relevant area safe rather than leave it to another person to do so. Although the applicant signed a memo concerning this discussion he indicated on it that he did not fully agree with Mr Priest's complaints.

[33] In early 2012 the respondent had implemented a performance review appraisal procedure (the review procedure) in accordance with the Enterprise Agreement. It was intended that the appraisals would be made of all employees and the responsible Superintendent would participate. A copy of the procedure was in evidence. 12 Relevantly it provided that every employee would have a formal performance review with their “Coordinator and Superintendent or appropriate Manager”. It was indicated that input may also be obtained from the relevant Deputy and Shift Undermanager.

[34] On 9 March 2012 a performance review appraisal of the applicant was done by Mr Moran and Mr Robertson. Mr Moran was the Mechanical Engineering Coordinator in Outbye Services and Mr Robertson the Weekend Shift Engineer. At about the same time the CFMEU had raised a concern that reviews had not been conducted by Superintendents as required by the review procedure. Mr Vale had identified the applicant, and approximately 20 other employees, as falling within this class. He instructed all relevant Superintendents to review the appraisals that had already been conducted and, if necessary, re-mark any of the scores. Mr Priest was directed to undertake a review of the applicant.

[35] I will now refer to what occurred on 15 May 2012 as this is the appropriate place in this chronology. It is important however to indicate that what occurred on this day did not come to the respondent's attention until around 24 July 2012.

[36] On 15 May 2012 the Applicant attended a hydraulics training course. It was a two-day course and this was the first day. The course was run by TTAAS Pty Ltd and Mr Wayne Thompson was the trainer. The respondent, in its final written submissions, listed a number of findings which it submitted I was able to make on the evidence. 13 I am persuaded to make each of those findings. I will not reproduce all of that extract from the respondent’s submissions here but provide a summary only.

[37] The applicant made comments during the course that he was the number one fitter at the mine and had no need to understand hydraulics. The course was a waste of time and he did not know why the training was being done 15 or 20 years late. His behaviour and comments were distracting to other members of the class and not directly relevant to matters being addressed. He failed to complete documents that he had been asked to by the trainer. He answered incorrectly a number of questions and in other cases did not write any answer to questions that were asked. Mr Thompson declined to assess the applicant as competent. The applicant was the only participant across all of the hydraulics training courses undertaken by Mr Thompson for the respondent in 2012 to have not successfully completed the first day of the program. Despite the applicant criticising the course as being rushed I do not accept that criticism was made out on the evidence. The applicant did not say that in any of the documents he was asked to fill out or make any complaint to anyone that it was rushed. I refer later to a letter of 3 August when the applicant did say the course was rushed. Mr Thompson had never received criticism that the course was rushed. Mr Thompson was sufficiently concerned about the applicant’s behaviour that he reported it to Ms Parsons.

[38] Mr Thompson gave evidence in these proceedings. He said he had conducted the same training course on multiple occasions for the respondent and there were generally around eight participates in each training session. The course had been designed by him in accordance with TAFE curriculum requirements and tailored for the respondent’s purposes. He had delivered a similar course to other mining companies on many occasions. He had not had difficulties with participants understanding and successfully completing the course. The training program on 15 May 2012 stood out in his memory due to the way in which the applicant had behaved on that day. He was arrogant to the trainer and also to the other course participants. He was disruptive during the course. At times Mr Thompson found it difficult to deal with the applicant and keep the course on schedule due to his behaviour. The applicant spoke during the course in an aggressive and condescending tone. He had referred to himself as being the number one fitter and would be here when they close the place. He did not understand hydraulics and had no intention of understanding. He didn't need to do the course. He was critical of the respondent during the course. He refused to sign the assessment sheet as Mr Thompson had asked of him. In his assessment materials he failed to answer a large number of questions. In a number of questions he did answer there were a number of errors. Even the apprentices who had done the course in the past completed the assessments to a much higher level than the applicant. Mr Thompson formed the view that due to the applicant’s failure to complete the assessment on this first day he was not confident he should be allowed to proceed to the second day of training. He had a view of the applicant that he could jeopardise the safety of others if he did not understand the course content for the first day. He was not prepared to certify him as competent. 14

[39] Mr Thompson had trained thousands of people over the previous 15 years and he rated the applicant as being in the top 10% of the worst people he had trained in terms of his attitude and his desire to learn. 15

[40] Where there is a conflict in the evidence of the applicant and Mr Thompson I prefer the evidence of Mr Thompson.

[41] Also at the hydraulics course the applicant attended were Mr Rundle and Mr Bowditch. Mr Rundle said he did not witness anything he thought out of the ordinary at the course nor think the applicant negative or disruptive. 16 Mr Bowditch said the applicant did make comments about being the number one fitter and not knowing why the course was being run and he described the comments as “quirky”.17

[42] On 18 May 2012 there was a meeting with the applicant attended by Mr Priest and Mr Moran. The purpose of the meeting was for Mr Priest to reconsider the applicant's performance review appraisal. This was because it had not been conducted by a Superintendent. Mr Priest went through the earlier appraisal that had been done on the applicant and in a number of places gave an assessment that was lower than the earlier appraisal. 18 Mr Priest also made a number of comments in the review appraisal form. A number of them were not complimentary of the applicant. He said that he raised safety concerns in a disruptive and sarcastic way, that he was opinionated in meetings, his respect to others was low that he did not accept instructions and challenges the validity of plans without understanding the planning process. The overall review score was reduced and the applicant signed the form indicating he did not agree with the reassessment. Also at this meeting there was a discussion about the comments the applicant was making on his hazard reports and failing to himself attend to hazards when he was able to do so. Mr Priest formed the view that the applicant was using the hazard report processes as a way to be critical of his managers. The applicant was also putting in hazard reports on the same subject even though corrective action had previously been taken or was planned to be taken and he had been advised of that.

[43] I do not accept the applicant’s evidence that the respondent was unhappy about employees completing hazard reports. The respondent’s concern was about the inappropriate manner in which the applicant was using and completing those reports. Mr Priest prepared a memo reflecting his interview with the applicant about this matter. The applicant wrote on that document that he did not fully agree with Mr Priest’s comments. 19

[44] The next relevant matter in this chronology occurred on 25 and 26 June 2012. I will make findings here but note that the respondent did not find out about what occurred on these days until around 24 July 2012.

[45] The applicant attended a diesel engine systems training course on 25 and 26 June 2012. The course was run by Colliery Diesel and Electric Pty Ltd and the trainer on that course was Mr Plain, a Director of that company. Again, about this course the respondent made numerous submissions as to the findings I should make. I am persuaded that the evidence establishes each of the matters. 20

[46] I will summarise those findings. The applicant gave incorrect answers or left answers missing in his assessment forms and as a result the trainer was not able to assess him as competent. The applicant’s conduct in the course was unacceptable. He made comments about being a conveyors man and not normally working on diesels and wondered why he was doing the course. He doubted whether the training was of any practical use in his day-to-day work.

[47] Also in attendance at the course were Mr Betts and Mr Searle. They said they did not hear the applicant say anything out of the ordinary 21 and did not hear the applicant engage in discussions that could be said to be unfair or negative.22 Mr Searle, in his witness statement, said the course was too cramped and too much of a writing exercise.23 Mr Betts also said, in his witness statement, that the course was run over too short a period of time.24

[48] Neither of these men made any such comments on any feedback or evaluation documents or raise it with any other appropriate persons within the trainers or respondent’s workforce. No such comments were made in any of the suggestions spaces on the forms they were invited to fill out despite the fact they could fill them out anonymously. I note that in his oral evidence Mr Plain acknowledged there were some other responses from other participants (it is not clear if they were in this or another course) that said there was a lot of writing and it was a bit rushed.

[49] Mr Plain made notes of the applicant’s conduct and they reflect that on day one he was very negative and that he, Mr Plain, would try to assist more on day two. Following the second day of the course the trainer spoke to another training officer indicating that the applicant had not successfully completed the course.

[50] Although in his evidence the applicant said the course was too intensive and rushed he did not make any such comments on any documents asking for feedback or raise it at the time with any of the respondent’s management. I note that in a letter dated 3 August he did say the course was rushed. I refer to that letter later in this decision.

[51] Mr Plain gave evidence in the proceedings. His company had been engaged to deliver five courses in diesel engine systems during June and July 2012. In all 43 employees attended these courses. He understood that the respondent wanted its mechanical tradespersons (as well as others) to attend the course and be accredited to ensure they were competent to perform work on plant and equipment which had diesel engine systems. The course was designed as a two-day program and had been conducted in this way for other employers in the industry. He had not had any problems in the past with the course being said to be too crammed or rushed or any similar criticism. There was ample time during the course for participants to complete the assessments and ask questions about the course content. There were nine employees in the course the applicant attended. Mr Plain provided assistance to the applicant during the course. Despite this the applicant did not correctly answer many of the questions in the assessment workbook and in respect to some provided no answer at all.

[52] Mr Plain said the applicant was vocal during the early part of the first day and made comments to the effect that he didn't normally do this stuff and that he was a conveyers man. He said he did not work on diesels and queried why he was doing it. 25 Later on that day the applicant had said he was having a little trouble taking it all in. At the end of the day Mr Plain had noted that the applicant had been very negative and that he would try to assist him more on day two. In his notes about that day he recorded that the applicant had showed an improved attitude but still needed assistance with his assessments.

[53] Mr Plain slowed down the pace of the course to allow the applicant more time to work through the course materials and complete the assessments. On the second day, Mr Plain gave particular attention and assistance to the applicant. He went through a large portion of the assessments particularly to assist him. Before he finished up he asked all the students if they completed their assessment questions and had signed their assessment workbook. He said that if they wanted to submit the assessment workbook at a later time they could. Later that day he reviewed the assessment workbook completed by the applicant and was surprised and disappointed to see he left many questions unanswered and had answered many others incorrectly. 26

[54] In all of the courses Mr Plain had provided to the respondent and other employers only the applicant and one young tradesperson had failed to successfully answer and complete the assessment questions and activities and been found not competent. During the particular courses in June and July the applicant was the only employee who did not successfully complete the answers required in the assessment documents and the practical exercises such as to allow him to have been assessed as competent. 27 The assessment workbook which had been provided to the applicant in this course was tendered.28 Mr Plain reported his concerns to the respondent.

[55] Where there is a conflict in the evidence of the applicant and Mr Plain I prefer the evidence of Mr Plain.

[56] On 6 July 2012 there was a meeting between Mr Vale, the applicant and others to discuss the applicant’s 12 month review. Mr Vale referred to the conditions that had previously been given to the applicant concerning his performance. He said that based on his assessment of his conduct he had not sufficiently improved so as to justify his being taken off Step Three of the CAP. The applicant was shown copies of his SLAMS and MATES reports for January to March 2012.

[57] On 6 July 2012 Mr Vale sent the applicant a memo concerning his "Ongoing personal and performance monitoring. 29 In it he refers to the matters that had been discussed at the meeting on that day and recorded the reasons why Mr Vale was not prepared to change his CAP status at that time. He was informed that there would be a further review in six months time.

[58] As is apparent from my earlier comments, at the time this review was completed and the memorandum prepared, the respondent had not received any report concerning the applicant’s conduct in the training sessions on 15 May 2012 and 25 and 26 June 2012.

[59] On 6 July 2012 the applicant completed two grievance forms. One concerned his objection to the marks he had been given in the re-appraisal and the other was an objection to his remaining on Step Three of the CAP. 30

[60] On or about 24 July 2012 Mr Vale received a report from Ms Parsons about the applicant's behaviour at the hydraulics training session which had been held on 15 May and the diesel engines training sessions which had been held on 25 and 26 June 2012. At Mr Vale's request enquiries were made of the trainers concerning the applicant behaviour at these courses.

[61] An issue arose concerning the report Mr Thompson had given the respondent. Mr Thompson first sent an email indicating that thus far the applicant had only attended the first of a two-day course but that his assessment of his performance on that day, his attitude and incomplete documentation he had been assessed as not competent and would require further additional training.

[62] Mr Vale said he had a discussion with Mr Thompson on or about 25 July 2012. He recalled being informed about the applicant’s performance at the hydraulics course and that Mr Thompson had indicated that he had not come across anyone who he had not been able to train sufficiently to become competent nor anyone who had been as negative as he had been. Mr Thompson does not recall such a discussion directly with Mr Vale. He did recall seeing Ms Parsons after the course and advising her that he needed to speak to her about a matter concerning the course and this concerned a few issues he had with the applicant. Subsequently, he had discussions with representatives of the respondent but was unable to say precisely who the discussions were held with. He recalled telling the persons he had spoken to that he thought it highly unlikely the applicant would pass the first day of the course if he was retrained due to his attitude. 31 Ms Parson says that a telephone conversation occurred with Mr Thompson on or around 25 July. Mr Vale was present in the room during that conversation. I accept that evidence but, on any version of the evidence, Mr Vale was advised at this time about the applicant’s conduct in the hydraulics course and Mr Thompson’s assessment of him.

[63] Mr Vale’s opinion was that the hydraulics training session had to be successfully completed. The majority of underground machinery at the mine had some hydraulic component features and the applicant was required to be competent in hydraulics safety. He was also of the opinion the applicant had to attend and complete the diesel engines course in order to safely and efficiently work with diesel engines and equipment at the mine. There is no basis made out for me to doubt the reasonableness of these requirements of the applicant. There is no basis made out on the evidence to suggest that the applicant was in anyway singled out in respect of the expectations the respondent had of its employees and its tradespersons in particular.

[64] On 27 July 2012 there was a meeting between Mr Vale, Mr Armstrong, the applicant and Mr Webb. Mr Webb attended the meeting as the applicant's support person. Mr Vale addressed the complaints he had received about the applicant’s performance at the two training sessions as well as the applicant two grievances. In relation to his grievance about the performance review appraisal he was informed to observe the proper procedure and that meant asking for a review from his production manager. In relation to leaving him on Step Three of the CAP Mr Vale said he had earlier given his reasons for that and he briefly repeated them again and then asked if the applicant had anything more to tell him. The applicant had said something to the effect of not wanting to do so at that time.

[65] Mr Vale put particulars of the complaints that had been made about the applicant’s performance at the two training sessions to him. 32 In relation to the hydraulics training session on 15 May the applicant was advised that due to his attitude and incomplete documentation he had been deemed not competent and would require additional training. He was told that no other similar complaint had been made about any other employee and no other employee had been found to be not competent. The applicant agrees that this was raised with him. He said that he didn't remember not completing the documentation and didn't really want to comment further about it at that time.

[66] Mr Vale then referred to the diesel engine systems training course in June 2012. He advised that feedback had been received from the trainer and the applicant’s attitude and completion of the documentation had been unsatisfactory and that he had been deemed not competent. The applicant did not agree that he had said the course was a waste of time but he did accept he made comments that he did not know that it was particularly useful for him as he rarely worked on diesels. Mr Vale advised that his behaviour was unacceptable and was similar to behaviour he had displayed in the past. He referred to previous memoranda when the applicant had been informed he was at all times to actively and positively participate in training sessions. The applicant recalled this being raised.

[67] Mr Webb said that the allegations had come as a surprise and he wanted to speak to the applicant about them. He and the applicant left the meeting and then subsequently returned. Mr Vale asked the applicant if he had anything further to say and the applicant said words to the effect that he had nothing further to say at that time. The applicant asked for a copy of the complaints that had been made and Mr Vale declined. He said he would provide him with a written summary of the complaints which he did. A copy of that written summary was in evidence. 33 Mr Vale then informed the applicant that the respondent was seriously considering the termination of his employment.

[68] Mr Vale gave the applicant until 30 July 2012 to respond in writing and indicated that he would be available for a meeting at that time if the applicant wished to deliver his response at a meeting.

[69] On 29 July Mr Ockers wrote to Mr Vale requesting an extension of time to 3 August for the provision of any response. A request was made for copies of certain documentation including documentation relating to incomplete training documents from the hydraulics and diesel training sessions and any feedback from the trainers of each course. An enquiry was made as to whether the trainers had approached the respondent unsolicited or if the respondent had approached them to seek their input on the applicant's behaviour. The Respondent gave the applicant the additional time as requested so as to enable him to provide his response.

[70] On 3 August 2012 there was a meeting which Mr Vale and the applicant attended together with Mr Armstrong, Mr Ockers and Mr Webb. The meeting was held at the Bargo Bowling Club. At the commencement of the meeting the applicant handed Mr Vale a letter dated 3 August 2012. 34 There was a break for him and Mr Armstrong to consider it. Mr Vale and Mr Armstrong each read through the letter and discussed the points in it. The meeting then resumed. Mr Vale went through the history of the applicant’s conduct and informed him that he did not support his ongoing employment and that his employment would be terminated. The matters that were addressed by Mr Vale were contained in a document that was described as his speaking notes a copy of which was in evidence.35

[71] I have considered all of the content of the applicant’s letter of 3 August. I will summarise it only. The applicant denied that his attitude in the hydraulics training session was anything other than constructive and said his behaviour was no different to that of the other participants. He said he had attempted to fill out the documentation to the best of his ability. In relation to the diesels training course he denied his attitude was anything other than constructive. He said he did not believe it was appropriate for him do have been required to fill out the documentation. He said that as he predominantly worked on conveyers the training was unlikely to be used in his day-to-day role. It was in that context he had made the comment to the trainer that he thought the training was not of any practical use to him. It was an off-the-cuff remark. He denied that his conduct had been unacceptable. He queried whether his actions had provided any risk to health and safety and said that he had actively participated in the courses to the best of his ability. He complained about the period of time that had elapsed between attending the courses and July when he was first spoken to about them. He referred to the grievances that he had raised and that he had asked the union to raise them as a matter in dispute under the Enterprise Agreement. He complained that he had not received copies of the complaints the respondent was relying upon.

[72] After a break when the applicant and his representatives had a discussion the meeting resumed and a request was made for a written record of the termination and for some arrangements to be made to collect the applicant's personal belongings. Subsequently, the applicant was provided with a letter of termination dated 3 August 2012 36 a copy of which was also provided to his representatives. The letter records that the respondent did not consider the additional information the applicant had provided that day to be sufficient to mitigate his misconduct or restore the company's confidence in him. He was advised that the respondent intended to terminate his employment without notice as a result of his repeated misconduct.

[73] The reasons Mr Vale decided to terminate the applicant's employment were those given to him in the meetings of 27 July and 3 August. In his evidence before me he confirmed his reasons. I will summarise them. I take this from his statement and his oral evidence. 37

[74] Mr Vale had "grave concerns" about the applicant's ability to work safely and efficiently as a fitter at the mine. Despite having worked for 33 years as a fitter he had not been assessed as competent in various training courses. In this respect Mr Vale had in mind his not being assessed as competent in the hydraulic systems course which required fundamental skills which, in his opinion, a fitter should possess or be able to obtain. The applicant had not been assessed as competent on diesel engine systems and it was a basic function of a fitter to understand and be able to work safely on these systems. He had required a second attendance at the SMRS course to be accredited. This should have not been required as the skills should have been ingrained in the applicant given his period of service.

[75] Mr Vale was of the view that the applicant posed a risk to his own health and safety and to other workers at the mine. Mr Vale formed the view that in this respect the applicant posed an unacceptable risk. Given his length of service he should have had sufficient skill and competence in the areas in which he had been assessed. He also took into account the repeated nature of the applicant’s behaviour at training sessions despite warnings to him about the standard expected of him. He formed the view that his behaviour was unlikely to change. Additionally, the applicant’s behaviour towards the trainers and in the workplace was unacceptable.

[76] I do not accept the applicant’s contention that as he was in the outbye and surface operations process area he was not required to undertake repair or maintenance tasks on plant or equipment with hydraulics components or diesel engine systems. In this respect, I accept the respondent’s submission that as a mechanical tradesperson, appointed to perform those duties, the respondent could call upon the applicant at any time to perform the full range of skills for which he was employed. During the course of his employment, the applicant had worked in the longwall and development process areas where plant and equipment with hydraulics and diesel engine systems are prevalent, and he could have been allocated to work in these areas again on either a temporary or permanent basis or in the event of a maintenance emergency. Even when working in the outbye area, he is required to work on conveyor belts which involves work on hydraulic systems and may be required to work on equipment with diesel engine systems.

[77] I have referred earlier to some specific evidence of some of the applicant’s co-workers in respect to particular events. I should also refer to the evidence of other co-workers of the applicant. I have earlier referred to each of the persons who filed witness statements and gave oral evidence. I have considered all of their evidence and have noted the following in particular. Mr Webb said the applicant had a tendency to complain but he had respect for him and he was a capable tradesperson who was very particular about safety. 38 Mr Ockers said he was a “fine fitter”, took his job seriously and was particularly safety conscious. In trying to ensure work was done properly and safely sometimes the applicant got frustrated and a bit short with people.39 Mr Eldridge said the applicant was very safety conscious and he had not found him to act in a negative manner towards his work. He did not think management appreciated the applicant putting in hazard reports. He could swear (which was not unusual in the mine) and appear abrupt but not offensive or negative.40 Mr Batty said the applicant had a high degree of safety consciousness. He could become frustrated and push a point. He used the language of the mine and this was no different to most other employees.41

Section 387

[78] In considering whether I am satisfied that the applicant’s dismissal was harsh, unjust or unreasonable I must take into account a number of considerations in paragraphs 387(a) to (h). Against the background of the factual findings I have made I now turn to those considerations.

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

[79] I find that the respondent had a valid reason to dismiss the applicant. The reasons given by Mr Vale satisfy me as to this consideration. Both the respondent and the applicant had obligations under health and safety legislation generally and legislation peculiar to the coal mining industry. Part of ensuring the health and safety obligations were met was the requirement for employees to participate in a proper way in safety and skills related training and to be assessed as competent in that training. The manner in which the applicant conducted himself in training sessions and his failure to be assessed as competent were factors the respondent was entitled to rely upon when deciding whether he should remain in employment. The applicant’s conduct and behaviour in the training courses was unsatisfactory. There had been a history of conduct which had similar hallmarks. He had been warned about this type of behaviour and could not have been in any doubt by the end of 2010 that his employment could well be in jeopardy if he conducted himself in a similar manner. In my opinion, his conduct in the hydraulics and diesel courses alone may well have constituted a valid reason but when additionally considered against the background of the SMRS and Eickhoff shearer training courses I am well satisfied the respondent had a valid reason to dismiss the applicant.

[80] I have earlier noted that the termination letter refers to the reason for termination being repeated misconduct of the applicant and that his employment was terminated without notice. Certainly his behaviour can be properly described as being unsatisfactory and probably misconduct in the sense that he had been warned repeatedly about matters, in particular his conduct and behaviour, but acted again in training courses in the same way. I have some concerns about whether his actions should be categorised as serious misconduct. I refer to this matter again in my comments by reference to s387(h). However, it is not necessary for me to make a finding in this regard. 42 The consideration here is whether the employer had a valid reason to dismiss the applicant and I am satisfied it did.

(b) whether the person was notified of that reason

[81] In the meetings of both 27 July 2012 and 3 August 2012 the applicant was notified of the reasons. In the first meeting he was given the reasons (orally and in writing) which the respondent considered may lead to his dismissal and on 3 August he was given the reasons why the respondent had decided to terminate his employment.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[82] As is apparent from my findings of fact above the applicant was given an opportunity to respond to the respondent’s reasons why it was considering terminating his employment. He was given adequate details of the allegations as to what he had said and done in the various training courses. He was asked to give his response to the allegations and to why the respondent should not find his behaviour amounted to misconduct sufficient to warrant his dismissal. He was given an adequate opportunity to consider his response.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[83] The evidence does not establish that there was any refusal by the respondent to allow the applicant to have a support person with him to assist at any discussions that related to his dismissal. At all relevant meetings he had at least one support person with him.

(e) if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal

[84] The respondent submits that as the warnings and counselling given to the applicant related to misconduct and not unsatisfactory performance this consideration is not relevant. I think it is sufficient for me to indicate that regardless of the view that might be held about whether the conduct was serious misconduct or misconduct the applicant’s conduct was clearly unsatisfactory. In those circumstances, therefore, I find that there were numerous warnings and counselling given to the applicant. I have referred to this earlier in relation to the findings of fact I have made.

[85] I deal with the considerations in ss.387(f) and (g) together. They require me to consider the degree to which the size of the employer's enterprise and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[86] The respondent is an employer with a large workforce and has expertise and specialists in the area of human resources. Additionally, it is apparent from my findings that the respondent has, from time to time, engaged the services of external solicitors to undertake investigations. The manner in which the respondent enquired into the allegations about the applicant’s conduct and the way in which it went about its interaction with him in respect to counselling, discipline, warnings and ultimately dismissal was to an acceptable standard and one consistent with that expected of an organisation of its size.

(h) any other matters that the FWC considers relevant.

[87] I have taken into account a number of matters by reference to this consideration. First I have considered the evidence given by several of the applicant’s co-workers at the mine. I have referred to it earlier in paragraph [77]. When considering whether the respondent had a valid reason to dismiss the applicant I was more persuaded by the evidence given by the external trainers and the respondent’s own assessment of the applicant’s capacity. That assessment had been made against the background of the applicant’s repeated unacceptable conduct.

[88] I note the submission of the applicant that he had attended a number of other training courses and there had not been any adverse comment made about him in respect of any of those courses. I also note that there is no evidence before me about any unsatisfactory conduct prior to 2010.

[89] I have earlier referred to the fact that the applicant’s employment was terminated without notice. It does not appear that either party provided to me details of the payments made to the applicant upon termination. I must assume that no part of those payments reflected a payment in lieu of notice. I have taken this into account. Although the dismissal letter does not say so, it seems to be accepted that the respondent was of the opinion the actions of the applicant constituted serious misconduct such as to warrant summary dismissal. In this respect each party referred to the FW Act and the regulations in relation to what is encompassed by the term “serious misconduct”. Although the term is not used in Part 3-2 of the FW Act, the part in which s.394 is contained, the respondent submitted that it was relevant that the applicant’s behaviour amounted to serious misconduct within the meaning of the FW Act and relevant regulation.

[90] Section 12 of the FW Act provides that serious misconduct has the meaning prescribed by the regulations. Regulation 1.07, so far as it was relied upon in this matter, is in these terms:


[91] Although I have some doubt as to whether at common law the actions of the applicant justified summary dismissal I accept that his actions are encompassed by the definition in paragraphs 2 (a) and 3 (c) of the regulation.

[92] I have taken into account the long service of the applicant. He had been employed at the mine by respondent or its predecessors for over 33 years. I have weighed this up against the expectation the respondent should properly have as to the competence of a tradesperson with that period of service and the manner in which they would conduct themselves at the workplace and in work related training.

[93] I have taken into account the fact that the applicant has only ever worked in the coal mining industry and at the Tahmoor mine. His expectation was that he would work there until his retirement. I note his evidence that he has had difficulty obtaining alternative employment.

[94] I have weighed all of these factors up against the numerous times the applicant was warned about his conduct and behaviour. On two occasions prior to those which led to his dismissal the respondent had considered terminating his employment. He had been placed on Step Three of the CAP and it should have been clear to him that his conduct was being monitored and any failure to comply with the employer's expectations of him would have placed his employment in jeopardy. He could have been under no doubt that he needed to comply with each of the requirements that had been placed upon him in the numerous counselling sessions, formal disciplinary interviews and warning memoranda. I agree with the respondent's submission that it is significant that there have been four training providers external to the respondent’s workforce who had complained of the applicant’s conduct.

Was the dismissal harsh, unjust or unreasonable?

[95] I have decided that the applicant’s dismissal was not harsh, unjust or unreasonable.

[96] Everything that could have been said for the applicant was. His advocate, and his union and work colleagues raised every argument in support of his application that could properly have been raised. This has been a complex matter and I accept the applicant’s dismissal has had significant negative impact on him. However, having weighed all the evidence, I was persuaded he had been given a fair go; his dismissal was not unfair. His application is dismissed.



Mr A Thomas, CFMEU National Industrial Officer, for the Applicant.

Mr J Murdoch, Senior Counsel, with Mr T Sebbens for the Respondent.

Hearing details:



December 10,11,12



January 23,24

February 28.

 1   [2010] FWAA 8117 AE881648, clause 11

 2   Exhibit A10 para 7

 3   Exhibit R6, attachment PV5

 4   Exhibit R6 PV7

 5   Exhibit R6 PV9

 6   Exhibit R6 PV11

 7   Exhibit R6 PV12

 8   Exhibit R6 PV17

 9   Exhibit A2 para 6

 10   Exhibits R6 PV20

 11   Exhibits R6 PV23

 12   Exhibit R6 PV24

 13   Exhibit R13 paragraph 3(a)

 14   Exhibit R11

 15   Exhibit R11 or paragraph 54

 16   Exhibit A7 paras 12 -16

 17   A12 para 9 PN2229 - 2240

 18   Exhibit R6 PV25

 19   Exhibit R9 PP2

 20   Exhibit R13 paragraphs 3(b) and 4

 21   Exhibit A8 para 12

 22   Exhibit A11 para 24

 23   Exhibit A11

 24   Exhibit A8 para 10 and 11

 25   Exhibit R5 para 36.

 26   Exhibit R5 paras 44-49

 27   Exhibit R5 para 52

 28   Exhibit R2

 29   Exhibit R6 PV26

 30   Exhibit R6 PV28

 31   Exhibit R11 para 53

 32   Exhibit R6 PV30

 33   Exhibit R6 PV31

 34   Exhibit R7, MAS

 35   Exhibit R6 PV34

 36   Exhibit R6 PV35

 37   Exhibit R6 paraas 99-104

 38   Exhibit A4

 39   Exhibit A5 paras 16 and 17

 40   Exhinit A6 paras 8-15

 41   Exhibit A9 paras 14 - 19

 42   Magers v Commonwealth of Australia ) Department of Health and Ageing) [2010] FWAFB 4385

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