DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Matthew Parish
v
Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal
(U2016/2018)

Application for relief from unfair dismissal – application dismissed

[1] Mr Parish was employed by Mt Arthur Coal Pty Ltd (Mt Arthur) as an operator. He worked shift work at the Mt Arthur coal mine near Muswellbrook in the Hunter Valley. After completing night shift at 7:10am on the morning of Sunday, 20 March 2016, Mr Parish went home and tried to sleep, so that he would be ready to commence night shift at 6:30pm that evening. Mr Parish did not sleep well because there were five adults and three children under the age of six at Mr Parish’s house for a Sunday family lunch. Mr Parish attended work at 6:30pm on the evening of Sunday, 20 March 2016 and informed his supervisor, Mr Charters, at the commencement of his shift that he had not slept well. Mr Parish proceeded to operate a dozer during his night shift. A number of incidents occurred during Mr Parish’s night shift, including losing track of time during his first crib break and taking about a 60 minute break rather than a 30 or 35 minute break, not informing his supervisor when the grader he was operating started leaking oil and needed repairing, and sleeping not just during his second crib break but for a period of approximately 100 minutes.

[2] Mt Arthur conducted an investigation in relation to the incidents concerning Mr Parish on his night shift on Sunday, 20 March 2016. Mt Arthur concluded that Mr Parish had breached a number of directions and workplace policies and procedures. After giving Mr Parish an opportunity to show cause why his employment should not be terminated, Mt Arthur decided to dismiss him and paid him four weeks’ pay in lieu of notice. Mr Parish contends that his dismissal was harsh, unjust and unreasonable. Mt Arthur denies those allegations.

The Hearing

[3] This matter was heard by me over two days on 23 August and 1 September 2016. Mr Parish gave evidence on his own behalf. He also called evidence from Mr Sean Tanner, a CFMEU Shift Delegate, who was not required for cross examination. Mt Arthur called evidence from Mr Charters, Mr Shadbolt, Production Superintendent, and Mr Redman, Manager Production.

Initial matters to be considered

[4] I am required by s.396 of the Fair Work Act 2009 (Cth) (the Act) to decide four matters before I consider the merits of Mr Parish’s application. There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Parish’s application was made within the period required by s.394(2) of the Act;

(b) Mr Parish was a person protected from unfair dismissal;

(c) Mt Arthur was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) Mr Parish’s dismissal was not a case of genuine redundancy.

Was Mr Parish’s dismissal unfair?

[5] I am required by s.387 of the Act to take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Parish’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Mr Parish’s dismissal (s.387(a))?

Legal principles

[6] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced”.3

[7] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵

[8] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[9] In cases, such as the present, where allegations of misconduct are made, the standard of proof in relation to the alleged conduct remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" 8 and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"9 or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".10 Put another way, the application of the Briginshaw standard means that I should not lightly make a finding that an employee engaged in the misconduct alleged against him or her.11

Valid reasons contended for by Mt Arthur

[10] Mt Arthur contends that Mr Parish engaged in the following misconduct:

(a) Mr Parish took a crib break from approximately 11:20pm to 12:20am, exceeding the 30 minutes allowed for a crib break. The evidence suggested that some supervisors permit employees to take a crib break of 35 minutes rather than 30 minutes, but that minor difference is of no significance in this case;

(b) Mr Parish failed to notify his supervisor, Mr Charters, that he had taken an extended first crib break;

(c) Mr Parish failed to notify Mr Charters and Dispatch of an oil leak on the grader he was operating on the night of 20 March 2016;

(d) Mr Parish took a crib break from approximately 2:30am to 4:45am, exceeding the 30 minutes allowed for a crib break;

(e) Mr Parish failed to notify Mr Charters that he had taken an extended second crib break;

(f) Mr Parish failed to notify Mr Charters that he had concerns about his fatigue levels during his shift on 20 March 2016; and

(g) Mr Parish failed to notify Mr Charters that he was feeling fatigued during his shift on 20 March 2016.

[11] Mt Arthur contends that Mr Parish’s misconduct constituted a breach of the following:

(a) clause 8.4 of the Mt Arthur Coal Enterprise Agreement 2011 (Mt Arthur EA) – 30 minute crib breaks;

(b) Mt Arthur’s Fatigue Management Procedure, in particular:

(i) Section 5 – “All employees will identify, monitor and report fatigue related issues”;

(ii) Section 7.2 - “All employees are encouraged to make any fatigue risk situation in themselves … known to their immediate supervisor … as soon as they become aware of the risk”;

(iii) Section 12.8 – “Napping should not take place outside scheduled breaks without the approval of the immediate supervisor”;

(iv) Section 12 – “The recommended length of napping is no more than 15 minutes”;

(c) the direction of Mt Arthur given to Operators to report faults/failures/delays to their supervisor and Dispatch;

(d) the BHP Billiton Chart of Values – “Accountability”, “defining and accepting responsibility and delivering on our commitments”; and

(e) the direction given by Mr Charters to Mr Parish to let him know if he was feeling fatigued at any time during his shift.

[12] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 12 as follows:

“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."

Factual findings

[13] Mr Parish gave evidence that:

(a) in pre-start meetings at the mine, issues such as fatigue were discussed and, in particular, safety issues in relation to fatigue, recognising fatigue and reporting fatigue, were discussed. The importance of reporting delays and defects with equipment was also discussed in pre-start meetings;

(b) he had received training in fatigue during his employment at Mt Arthur;

(c) he has a fairly good understanding of Mt Arthur’s Fatigue Management Procedure;

(d) he knows that fatigue at the mine is a serious risk at the workplace, and this is so regardless of which machinery he is operating;

(e) he knows there is a difference between feeling fatigued and tired;

(f) he was aware that during night shift he was only entitled to two 30 or 35 minute crib breaks;

(g) he was familiar with the BHP Charter of Values;

(h) he appreciates the importance of notifying his supervisor of defects in equipment that he is operating; and

(i) he knew that he had received a final warning from Mt Arthur on 9 February 2016 and that he was not to engage in any misconduct in the future.

[14] There is no dispute that at the commencement of Mr Parish’s shift on the evening of Sunday, 20 March 2016 he told Mr Charters that he had not slept well during the day. However, there is a dispute about whether Mr Parish told Mr Charters at the commencement of his shift that he “felt fatigued”. Mr Charters denies that Mr Parish told him that he “felt fatigued”.

[15] Mr Parish’s version of the conversation is as follows:

Mr Parish: “I’ve had a poor sleep. I feel fatigued and it’s going to be a long difficult night for me.”

Mr Charters: “If you feel tired, call me.”

[16] Mr Charters says in his witness statement that Mr Parish told him at the commencement of the shift that he had not slept well that day, to which Mr Charters responded by saying that if he (Mr Parish) felt fatigued at any time during his shift he was to call Mr Charters and let him manage the situation. Mr Charters says that Mr Parish confirmed that he would do so. In cross examination, Mr Charters accepted that he may have said “tired” rather than “fatigued” in his direction for Mr Parish to call him if he felt tired/fatigued. 13

[17] I prefer Mr Charters’ evidence in relation to this conversation over the evidence given by Mr Parish, for the following reasons:

(a) First, Mr Parish gave evidence that he felt safe to operate at the start of the shift. 14 It is unlikely, in my view, that Mr Parish would have told Mr Charters at the commencement of the shift that he felt fatigued and it was going to be a long and difficult night for him if in fact he felt safe to operate at the start of the shift; and

(b) Secondly, it is unlikely, in my view, that if Mr Parish told Mr Charters he was feeling fatigued at the start of the shift and that it was going to be a long and difficult night for him, Mr Charters would have responded by only asking Mr Parish to call him if he got “tired” or “fatigued” later in the night. An instruction of this kind would be contrary to Mt Arthur’s policies and procedures 15, and would render Mr Charters’ instruction of notifying him if Mr Parish felt tired or fatigued as nonsensical because, on Mr Parish’s version of events, he was already fatigued and therefore was by definition also tired. Mr Charters also gave evidence, which I accept, that if Mr Parish had informed him that he felt fatigued, Mr Charters would have gone:

“… through the process that we’re supposed to go through, like, assessing to see where he was at, to see whether we could actually help him out through a fatigue break. Obviously you’re not going to send him to work if he alerts you that he’s fatigued straight off the bat. Anything up until and including maybe sending him home, getting him a ride home, so, yes.” 16

[18] There is no dispute that Mr Parish took his first crib break during his night shift commencing at 6:30pm on Sunday, 20 March 2016 from approximately 11:20pm to 12:20am. Mr Parish says that he did not realise at the time that he had taken an extended crib break and that was why he did not notify his supervisor of his extended crib break.

[19] I accept that Mr Parish did not intend to take an extended first crib break, but I do not accept Mr Parish’s evidence that he did not realise at the time that he had taken an extended first crib break, for the following reasons:

(a) First, during the investigation process Mr Parish was asked by Mr Shadbolt to prepare an account of the events that occurred during the night shift. Mr Parish prepared a handwritten timeline of events dated 24 March 2016 and signed by him (Timeline). He provided the Timeline to Mt Arthur in response to the request from Mr Shadbolt. Mr Parish also attached a copy of the Timeline to his witness statement in these proceedings. Mr Parish did not identify in his witness statement or in his oral evidence in chief that there were any errors or mistakes in his Timeline. Mr Parish described events concerning his first crib break in the following way in his Timeline:

“I drove to Crib Hut 7 for my first crib break. Approximately 11:20pm – 12:20am. During crib I had some food, got chatting to some other work mates and lost track of time. Realised I had gone outside my crib window so I returned back to work.” [emphasis added]

(b) Secondly, contrary to what he recorded in the Timeline, Mr Parish said in cross examination that he did not realise that he had taken an extended first crib break “until we went through all of the investigation process”. 17 This evidence is at odds with the fact that Mr Parish prepared the Timeline before his second meeting with Mt Arthur during the investigation process, noting that he participated in a total of five meetings with Mt Arthur in relation to the events of 20-21 March 2016; and

(c) Thirdly, it is unlikely, in my view, that Mr Parish could have had a crib break for double the amount of time he was supposed to be on a break without realising during the shift in question that he had taken an extended break.

[20] Mr Parish concedes that he should have, but did not, notify Mr Charters and Dispatch when the grader he was operating had an oil leak and needed to be repaired at about 2:30am on 21 March 2016. Instead, Mr Parish notified a fitter, who undertook the necessary repair work to the grader. The importance of notifying a supervisor and Dispatch of a breakdown or repair to a piece of equipment is so that management can make appropriate decisions as to the most efficient use of equipment across the mine site and supervisors are aware of what operators are doing at any particular point in time.

[21] Mr Parish chose to take his second crib break at about 2:30am while the grader he had been operating was being repaired. Mr Parish accepts that by the time he commenced his second crib break at about 2:30am he was fatigued and felt unsafe to operate. 18 Notwithstanding that he felt this way, and regardless of whether Mr Charters told him at the commencement of the shift to call Mr Charters if he felt “fatigued” or “tired”, Mr Parish did not contact Mr Charters. Instead, Mr Parish took himself, without notice to anybody else, in to a fatigue hut, set the alarm on his phone for 35 minutes and went to sleep. Mr Parish then slept through his alarm. In fact, he slept for approximately 100 minutes, waking up at around 4:45am.

[22] At about 3:38am on 21 March 2016, Mr Charters received a call from Dispatch, who informed him that “Mr Parish had been inactive for an extended period of time, but had not logged a delay in the system nor been in contact to explain why.” Mr Charters then tried to call Mr Parish over the two-way radio and on his mobile phone to check he was alright and to find out what was happening, but Mr Parish did not respond because he was asleep in the fatigue hut.

[23] There is no dispute that Mr Charters made contact with Mr Parish over the two-way radio system at 5:13am on 21 March 2016. However, there is a dispute about whether Mr Parish tried to contact Mr Charters between when he woke up at about 4:45am, having slept for approximately 100 minutes, and when Mr Charters contacted him at 5:13am.

[24] I do not accept that Mr Parish tried to contact Mr Charters between when he woke up at about 4:45am and was contacted by Mr Charters at 5:13am, for the following reasons:

(a) First, Mr Parish changed his story in the following ways in the period between 23 March 2016 and giving his oral evidence in these proceedings:

(i) Mr Tanner’s notes of a meeting on 23 March 2016 involving Mr Charters, Mr Leaton, Open Cut Examiner, Mr Parish and Mr Tanner include the following:

“MP [Mr Parish] stated that he only just hop back in the grader and was about to call when SC [Mr Charters] beat him to it and received a call from him.”

The notes taken by Mr Simon Leaton 19, Open Cut Examiner, of the meeting on 23 March 2016 are consistent with those taken by Mr Tanner:

“Matthew [Parish] was asked why he didn’t call up when he woke up straight away; Matthew [Parish] stated Steven [Charters] Prod 6 was calling him when he got back in the grader.”

The version of events given by Mr Tanner in the body of his witness statement, to which his notes were attached, is different from his notes. In particular, Mr Tanner says at paragraph [14] of his witness statement that Mr Parish said in the meeting on 23 March 2016: “I tried to contact Charto when I got back on the grader, his line was busy”. Similarly, in his witness statement Mr Parish says (at [89]): “I got back to the grader and I tried to call you but I couldn’t get through and I couldn’t get a hold of you. I received a call from you after that.”

In my view, the contemporaneous notes prepared by Mr Tanner and Mr Leaton are a more reliable record of what Mr Parish said in the 23 March 2016 meeting in relation to his receipt of a call from Mr Charters.

(ii) in his Timeline dated 24 March 2016 Mr Parish included the following statement:

“Once I was awake I realised what had happened, I immediately grabbed my bag and quickly made my way back to the grader. I’d only just put my bag in the grader when Production 6 private [Mr Charters] called my two way.”

(iii) in preparation for his meeting with Mr Shadbolt and Mr Charters on 24 March 2016 Mr Parish prepared a letter which he read out “word for word” at the meeting. The letter includes the following statement:

“Unfortunately due to my severe fatigue I slept through my alarm which meant my crib blew out. As I entered the cab of my grader I was about to touch base with Charto [Mr Charters] to explain what had just happened when in fact he beat me to it.”

(iv) in his show cause response dated 14 April 2016 Mr Parish stated:

“I was shocked when I woke to notice that I had slept for so long. In turn, I grabbed my bag and moved hastily towards the grader. As soon as I got into the grader I attempt to call Mr Charters on a number of occasions to explain to him why I had taken a longer crib break (i.e. that I’d slept through my alarm). However, on each attempt I received an engaged signal and the two-way radio indicated that his line was busy.

I received a few private calls between 4:45am and 5:13am prior to receiving a private call from Mr Charters. I made a private call to the dozer operator at 5:08am and asked him to pick up another operator and I at the appropriate time (i.e. when he was making his way out of the pit to finish shift for the day). When I received a private call from Mr Charters, at approximately 5:13am, I could hear Mr Charters was angry and frustrated from the tone of his voice.”

(v) Mr Parish gave the following evidence in his witness statement in relation to what he said were his attempts to contact Mr Charters after he woke up at about 4:45am:

“At around 4:45am I woke up and noticed that I had slept through my alarm. I still felt fatigued when I woke up. I also started to feel ill insofar that I felt shaky, cloudy, and nauseous. I immediately returned to the grader and once in the operator’s cabin, I attempted to contact Mr Charters by way of private call on the two-way radio to inform him that I’d slept through my alarm and I was not feeling well. I estimate that I tried to call him at least 10 times. On each occasion Mr Charters two-way radio line returned an engaged signal.”

(vi) in cross examination, Mr Parish said that he attempted “to make contact with Mr Charters at approximately 4:48, 4:49 to an engaged signal;” 20

(b) Secondly, the two-way radio call logs tendered by Mt Arthur do not show any calls, or attempted calls, being made by Mr Parish to Mr Charters in the period from 4:45am until 5:13am on 21 March 2016. An issue was raised by Mr Parish as to the reliability of the call logs, given they do not record the attempted calls Mr Charters says he made to Mr Parish at 3:38am and 5:08am on the morning of 21 March 2016. Mr Charters did not make a note of the times he attempted to call Mr Parish on the morning of 21 March 2016. In my view, it would be difficult for any witness to recall with precision all the calls they tried to make on the night in question. The call logs do show Mr Charters attempting to call Mr Parish at 3:40am and 4:01am, as well as the call at 5:13am. On the balance of probabilities I find that the two-way radio call logs are reliable and Mr Charters is mistaken in his recollection that he tried to call Mr Parish at 3:38am and 5:08am, in addition to the calls shown in the call logs from Mr Charters to Mr Parish at 3:40am, 4:01am and 5:13am.

[25] There is no dispute about what Mr Charters and Mr Parish discussed during their conversation over the two-way radio at 5:13am on 21 March 2016 because Mt Arthur produced a recording of the conversation. It was in the following terms:

“Mr Charters:	Matty, where you been?
Mr Parish:	Up at crib hut 7 presently mate.
Mr Charters:	Go again, mate, sorry?
Mr Parish:	I am just up top at the present, umm, crib hut 7.
Mr Charters:	Yeah, but where have you been Matt, you’ve put no delays in or anything like that. The grader’s been down and you’ve never said anything. What’s going on man?
Mr Parish:	Yeah, had crib, and, umm, bit of a break, a fatigue break, as well.
Mr Charters:	Yeah you need to be talking to me about it mate, you don’t just take it in your hands man ey? That’s, argh, not gonna fly at all. We talked about this at the start of shift, if you had any dramas mate, you’d talk to me, not, not, just take it into your own hands man, ey? So, umm, yeah, that’s not gonna fly at all with me.
Mr Parish:	Righto, got that. And, umm, umm, got an oil leak too, which I called up earlier about. Umm, near the, right up the front, inside the umm, front wheel there. So, umm, [inaudible] machine done as well because of that.
Mr Charters:	Yeah, yeah, that’s fine mate. I suppose mate, you’ve put no delays in, you haven’t, umm, done any of that sort of stuff, you haven’t told anyone it’s broken down, you’ve taken your fatigue management in your own hands, so yeah, that ill be, that ill be, [inaudible], I am not impressed with that at all. For someone who takes road maintenance, ahhh, and the safety of others so importantly mate, you’re not really showing me that at all, so argh, yeah that’s are, that’s very disappointing mate.”

[26] Mr Parish’s evidence in relation to this discussion with Mr Charters at 5:13am on 21 March 2016 does not reflect well on his credit, for the following reasons:

(a) First, in his witness statement Mr Parish says (at [70]) that he attempted to contact Mr Charters “to inform him that I had slept through my alarm” but when he spoke to Mr Charters he was “still suffering from the symptoms of fatigue… I didn’t think quick enough to advise Mr Charters that I had slept through my crib/fatigue break… By the time I had thought to raise these matters with Mr Charters, he had terminated the call.” In cross examination, Mr Parish conceded that this was incorrect and he did think during the call to explain matters to Mr Charters, but he did not do so; 21

(b) Secondly, in the submissions filed on behalf of Mr Parish prior to the commencement of the hearing it was stated (at p17) that Mr Parish “was not provided with an opportunity to explain that he had slept through his second crib break as the call was terminated.” In cross examination, Mr Parish initially said, on a number of occasions, that he did not believe that he was given an ample or decent opportunity to explain his situation during the call, 22 but after the recording of his discussion with Mr Charters was played Mr Parish changed his evidence and accepted that he was given an opportunity during the call to explain himself but said he was not able to do so because he was, in effect, suffering from stress and anxiety at the time;23

(c) Thirdly, in his show cause response Mr Parish states that he had advised Mr Charters that his grader “was down with an oil leak. With this Mr Charters terminated the call.” In cross examination, Mr Parish conceded this was incorrect; 24 and

(d) Fourthly, it is clear from both listening to the audio file of the conversation and reading the transcript of the conversation, as set out in the previous paragraph, that there was ample opportunity for Mr Parish to tell Mr Charters that he had been to sleep and had slept through his alarm, with the result that he had actually slept for about 100 minutes. In my view, it was incumbent on Mr Parish to “come clean” and tell Mr Charters the truth in their discussion at 5:13am, or if not then, call him back shortly thereafter and tell the truth. Mr Parish did neither of those things. The most plausible explanation as to why Mr Parish did not say anything to Mr Charters about the fact that he had slept for about two and a quarter hours is because he wanted to see if he could get away with it.

Conclusion on valid reason

[27] Mr Parish was not dismissed for simply falling asleep at work. Having considered the relevant factual matrix, 25 and in light of the factual findings I have made, as set out in paragraphs [13] to [26] above, I am satisfied on the evidence before me that Mr Parish engaged in the misconduct alleged against him by Mt Arthur and breached the policies, procedures and directions set out in paragraph [11] above. These substantial breaches of policy and directions by Mr Parish gave Mt Arthur a sound, defensible and well founded reason to dismiss Mr Parish.

[28] For the reasons set out above, I am satisfied that Mt Arthur had a valid reason for Mr Parish’s dismissal related to his conduct, including its effect on the safety and welfare of other employees.

Was Mr Parish notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))?

[29] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 26, and in explicit27 and plain and clear terms.28 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[30] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 29

[31] On 23 March 2016, Mr Charters met with Mr Parish and asked him to respond to various questions concerning the events on 20-21 March 2016. Mr Parish responded to those questions and was stood down, on full pay, at the conclusion of the meeting. On 24 March 2016, Mr Parish met with Mr Charters and Mr Shadbolt and was asked to respond to further questions, which he did, about the events on 20-21 March 2016. At this meeting Mr Parish provided Mr Shadbolt with a copy of his Timeline and read from his “letter word for word”. 30 Later on 24 March 2016, Mr Parish also sent an email to Mr Shadbolt about various aspects of the events that transpired on 20-21 March 2016. Mr Parish attended a further meeting with Mr Shadbolt and Ms Zoe Collins, Open Cut Examiner, on 30 March 2016 and answered Mr Shadbolt’s further questions about events on 20-21 March 2016.

[32] On 12 April 2016, Mr Parish attended a meeting with Mr Shadbolt and Mr Charters at which they provided him with a show cause letter, which set out the findings made in Mt Arthur’s investigation, informed Mr Parish that he had breached a number of policies, directions and procedures, and invited him to show cause why his employment should not be terminated. Mr Parish responded to the show cause letter in his letter to Mt Arthur dated 14 April 2016.

[33] On 27 April 2016, Mt Arthur provided Mr Parish with a letter of termination which set out the reasons for his dismissal.

[34] On the basis of the evidence summarised in the previous three paragraphs, I am satisfied that Mt Arthur notified Mr Parish of the reasons for his dismissal and gave him multiple opportunities to respond to those reasons before making the decision to dismiss him.

Was there an unreasonable refusal to allow Mr Parish to have a support person present (s.387(d))?

[35] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[36] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”31

[37] Mr Parish had a support person with him during his meetings with Mr Charters, Mr Shadbolt and others on 23, 24 and 30 March and 12 and 27 April 2016. Accordingly, I am satisfied that there was no unreasonable refusal by Mt Arthur to allow Mr Parish to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

[38] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[39] In this case, the reasons for dismissal related to Mr Parish’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of Mt Arthur on procedures followed in effecting the dismissal (s.387(f))

[40] Mt Arthur is a large business enterprise. I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Parish’s dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[41] Mt Arthur has dedicated human resource management specialists and expertise, so this consideration is not relevant.

Other relevant matters (s.387(h))

[42] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[43] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 32 in the following terms:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

[44] There are a number of “other matters” which are relevant to my determination as to whether Mr Parish’s dismissal was harsh, unjust or unreasonable. I will deal with each of them in turn below.

Mr Parish’s history of employment with Mt Arthur

[45] Mr Parish commenced employment with Mt Arthur in about March 2011. He was authorised and qualified to operate a number of different types of equipment on the mine site. He was recently selected to be trained up to operate a scraper. Mr Charters expressed the view that Mr Parish has showed signs as having good potential.

[46] In about 2013, Mr Parish received a level 1 warning for a safety incident that occurred while he was operating a dump dozer at the Mt Arthur mine. Mt Arthur did not take this warning into account in deciding to dismiss Mr Parish.

[47] Mr Parish accepts that in November 2015 he breached a number of Mt Arthur policies by reason of his conduct in remaining on channel 6 of the two-way radio system for a total of 85 minutes for non-work related purposes and making inappropriate comments on the two-way radio system. Mr Parish received a stage 3 – final written warning on 9 February 2016 in relation to these matters. In the letter dated 9 February 2016, Mr Parish was warned that “if you engage in misconduct in the future, further disciplinary action may be taken against you, up to and including the termination of your employment.”

[48] Although Mr Parish accepts that he engaged in the conduct the subject of the 9 February 2016 warning letter and that by doing so he breached the policies to which Mt Arthur points, he contends that the level 3 warning was too harsh in light of the gravity of his conduct. The CFMEU notified Mt Arthur that Mr Parish was in dispute over the severity of the stage 3 warning in a letter to Mt Arthur dated 10 February 2016.

[49] In his show cause letter dated 12 April 2016, Mr Redman informed Mr Parish that “in requesting that you show cause why your employment should not be terminated, I have taken into account that you are currently on a Stage 3 - Final Warning issued on 9 February 2016”.

[50] In the letter of termination dated 27 April 2016, Mr Arthur informed Mr Parish that, “in relation to your dispute of your Final Written Warning, I note that you are currently disputing this warning. However, the Company’s position in relation to this warning has not changed, and you remain on a Stage 3 – Final Warning.”

[51] Following the termination of his employment on 27 April 2016, Mr Parish did not seek to pursue his dispute as to the severity of the final warning issued to him on 9 February 2016. However, in these proceedings Mr Parish has maintained that the stage 3 – final warning issued to him on 9 February 2016 was too harsh and should have been a lower level warning.

[52] I am satisfied that the stage 3 – final warning was appropriate for the conduct Mr Parish admits he engaged in on 10 November 2015. His conduct constituted a number of breaches of workplace policies, as set out in Mr Redman’s witness statement, and gave rise to a risk to health and safety in the workplace.

[53] In the result, the fact that in November 2015 Mr Parish engaged in misconduct at the workplace for which he received a written warning on 9 February 2016 is a material consideration which, while not being determinative, is adverse to the conclusion that Mr Parish’s dismissal was harsh, unjust or unreasonable. 33

The effects of fatigue

[54] Mr Parish contends that a number of the errors he made at work on 20 – 21 March 2016 were as a result of him being fatigued. For example, he says that his fatigue caused or at least contributed to the following:

(a) the fact that he inadvertently took an extended first crib break;

(b) his failure to report the oil leak in the grader he was operating to his supervisor and Dispatch;

(c) the fact that he did not inform Mr Charters that he was fatigued or that he intended to have a sleep in a fatigue hut before doing so;

(d) the fact that he set his alarm for about 35 minutes, rather than the recommended 15 minutes;

(e) the fact that he slept through his alarm in the fatigue hut; and

(f) the fact that he did not inform Mr Charters of the fact that he had been asleep and had slept through his alarm during their conversation at 5:13am on 21 March 2016.

[55] There is a degree of circularity to this argument, for it was Mr Parish’s failure to contact Mr Charters, in accordance with Mr Charters’ express direction and Mt Arthur’s procedures, if Mr Parish felt fatigued or tired and let Mr Charters manage the fatigue that resulted in Mr Parish engaging in the conduct that he did on 20-21 March 2016. In those circumstances, the impact of fatigue on Mr Parish’s actions is less of a mitigating factor than it otherwise might have been.

Mr Charters’ conduct

[56] The conduct of an employer or a particular manager, on becoming aware that an employee is or may be tired or fatigued, is a relevant consideration in the determination of whether a dismissal in a case such as the present one is harsh, unjust and/or unreasonable. 34

[57] Mr Parish contends that Mr Charters failed to comply with various obligations he had, in his capacity as Mr Parish’s supervisor, under the Mt Arthur Fatigue Management Procedure. In particular, it is alleged that once Mr Parish informed Mr Charters at the commencement of his shift that he had not slept well, Mr Charters should have, first, asked Mr Parish a number of questions and made observations of him to assess the risk of him operating equipment during the shift and, if Mr Charters determined that Mr Parish was fit to operate equipment, then Mr Charters should have made contact with him at various points during the shift to ask how he was feeling and potentially rotate the tasks that Mr Parish was directed to undertake in order to assist in keeping him alert and to avoid the effects of fatigue.

[58] Mt Arthur’s Fatigue Management Procedure “provides a framework for the prevention and management of fatigue related risks.” 35 It sets out, “as a minimum” a procedure that “should be considered in prevention of fatigue by all persons at Mt Arthur Coal.”36

[59] I accept that all employees of Mt Arthur, including supervisors such as Mr Charters, have a range of obligations under the Fatigue Management Procedure, such as to identify, monitor and manage fatigue risks in the workplace. 37

[60] In my view, Mr Charters acted appropriately in accordance with his obligations under the Mt Arthur Fatigue Management Procedure after he was notified by Mr Parish that he had not slept well prior to his shift commencing at 6:30pm on Sunday, 20 March 2016. In particular, I am satisfied, contrary to Mr Parish’s denials, that at the commencement of the shift when Mr Parish told him that he had not slept well Mr Charters asked Mr Parish if he was okay and Mr Parish said he was. 38 Mr Charters then directed Mr Parish to contact him if he felt tired or fatigued at any time during the shift, so that Mr Charters could manage such fatigue. After talking to Mr Parish, Mr Charters assessed the situation and formed the view that Mr Parish was safe to commence work. Mr Parish formed the same view. The fact that both Mr Parish and Mr Charters formed this view supports the likelihood that Mr Parish told Mr Charters he was okay to start work.

[61] At no time did Mr Parish inform Mr Charters during the course of the shift that he was feeling tired or fatigued.

[62] Mr Charters was aware that Mr Parish had been assigned to operate a grader on the shift in question. Operating a grader is far less repetitive than operating a dump truck or other similar equipment at a mine.

[63] If Mr Parish had notified Mr Charters that he was feeling tired or fatigued during the shift, I am confident on the basis of the evidence given by Mr Charters that he would have managed the risk by implementing a measure such as giving Mr Parish a fatigue break, sending him home, or rotating his tasks. 39

Other Mitigating Factors

[64] To his credit, Mr Parish took his second crib break earlier than he ordinarily would have done so, in an effort to assist Mt Arthur by having his crib break at a time when the grader he was operating was being repaired. This demonstrates that Mr Parish was attempting to act in the best interests of Mt Arthur.

[65] I accept that Mr Parish did not intend to sleep for as long as he did on 21 March 2016. He genuinely slept through his alarm because he was so tired.

[66] On a proper construction of the Mt Arthur Fatigue Management Procedure an employee is required to obtain the approval of their supervisor if they are taking a nap as an option to manage fatigue, 40 but an employee is not required to obtain the approval of their supervisor if they are taking a nap during a scheduled break as a preventative measure to prevent fatigue from becoming an issue.41 Notwithstanding this distinction in the Fatigue Management Procedure, I accept on the basis of the evidence before me that there is a practice of employees at Mt Arthur having a sleep in a fatigue hut during their crib break and not notifying their supervisor before doing so.

[67] Mr Parish understood, at the time of the incident on 21 March 2016, that he was not required to obtain approval from his supervisor if he was having a sleep in a crib break. However, Mr Parish’s understanding of the requirements of the Mt Arthur Fatigue Management Procedure are of limited significance in this matter because Mr Parish was expressly directed by Mr Charters to contact him if he felt tired or fatigued during the shift and Mr Parish failed to comply with that direction.

Harshness of the dismissal

[68] Mr Parish is the father of a two year old son and his wife is due to give birth to their second child in September 2016. Mr Parish and his wife have a very significant mortgage. In addition, they have a number of financial commitments that require regular repayments such as a car loan, credit cards and two GE loans. Mr Parish’s wife works part-time and earns a relatively modest income.

[69] Mr Parish and his wife were born and raised in the Hunter Valley and they rely heavily on the assistance of their families for the care of their children.

[70] Mr Parish’s dismissal has caused him and his family financial hardship. In particular, Mr Parish has been forced to make financial hardship applications with a number of financial institutions since the termination of his employment in an attempt to try and stay afloat. A number of his loans have also been placed on hold in the short term.

[71] Mr Parish suffers from depression, anxiety and obsessive compulsive disorder. Since being issued with the final written warning in February 2016, Mr Parish’s depression and anxiety escalated. He found it very difficult to sleep because he often dwelled on work matters and was concerned that his employment would be terminated and he would suffer financial hardship. He also became extremely anxious at work.

[72] Since January 2016, Mr Parish has attended regular appointments with his psychologist to assist in developing coping mechanisms for his depression and anxiety. During one of the earlier consultations with his psychologist, Mr Parish raised the issue that he was struggling to fall asleep and stay asleep. The psychologist informed Mr Parish that the medication Movox, which Mr Parish was taking for his depression and anxiety, is known to cause sleep problems and create unusual dreams for some people. This was the first occasion on which Mr Parish was made aware that Movox carried these potential side effects. At the time, Mr Parish did not believe that he should change medications in order to avoid these potential side effects, because he had been taking Movox for a period of approximately two years and he found it had assisted in managing his depression and anxiety, to a level where he could function on a daily basis.

[73] As a result of the incident on 20 March 2016, Mr Parish raised his concerns in relation to sleeping with his general practitioner and he was prescribed Temazepam. Mr Parish was advised by his general practitioner that Temazepam can be addictive and on that basis he only takes it when he absolutely needs to do so.

[74] Following the termination of his employment with Mt Arthur, Mr Parish has applied for about 15 jobs in the Hunter Valley in a variety of industries including the mining and construction industries. Despite his best efforts, Mr Parish has not been able to gain permanent employment. The only work Mr Parish has been able to obtain is as a casual employee. Further, the work that Mr Parish has undertaken since the termination of his employment with Mt Arthur has been paid at a lower rate than he was paid when he was employed by Mt Arthur.

[75] It is apparent from the facts, matters and circumstances set out in the previous seven paragraphs that Mr Parish’s dismissal has had significant negative consequences for his personal and economic situation. Those matters must be weighed against the gravity of Mr Parish’s misconduct in respect of which Mt Arthur acted in deciding to dismiss him.

[76] It is important to recognise that this is not simply a case where an employee has fallen asleep at work during a night shift. I am satisfied, on the basis of the findings set out above, that Mr Parish breached a number of policies, procedures and directions during his shift on 20 – 21 March 2016. His conduct in that regard was serious. In a mining environment where heavy vehicles are operating, often in relatively close proximity to one another, fatigue management is a significant and serious matter. Not only did Mr Parish fail to comply with Mt Arthur’s policies, procedures and directions in relation to identifying and reporting fatigue, he failed to communicate with his supervisor in an open and transparent way after he had slept through his alarm and been absent from his duties, without prior notice to anyone, for about two and a quarter hours.

[77] In the result, although I have sympathy for Mr Parish’s personal circumstances, I am satisfied that Mr Parish’s dismissal was not disproportionate to the gravity of the misconduct in which he engaged, nor was it harsh in any other sense.

Voluntary redundancy

[78] Mr Parish applied to take a voluntary redundancy prior to the decision by Mt Arthur to terminate his employment. At that time Mt Arthur was seeking expressions of interest from its employees to take a voluntary redundancy. Mt Arthur decided not to accept Mr Parish’s request to take a voluntary redundancy. Mr Parish contends that it was harsh and unfair of Mt Arthur not to accept his request to take a voluntary redundancy and instead to dismiss him. I reject this argument. In light of the conduct in which Mr Parish engaged, as set out above, Mt Arthur was entitled to dismiss him, rather than accept his request for voluntary redundancy, and its decision to do so was not harsh or unfair in the circumstances.

[79] Mr Parish also contends that he was treated unfairly in comparison to another employee, Mr Butterham, whose request to take a voluntary redundancy was accepted even though he had been requested to show cause why his employment should not be terminated.

[80] Mr Redman was the person who made the decision to dismiss Mr Parish. He was not, however, involved in the decision to accept or reject a request from any employee to take a voluntary redundancy. As a result, Mr Redman has limited knowledge of the circumstances surrounding the decisions by Mt Arthur to accept Mr Butterham’s request for voluntary redundancy and reject Mr Parish’s request for voluntary redundancy. Mr Redman did give evidence that he believes Mr Butterham’s show cause letter related to him being absent from work for some period of time on medical grounds, rather than misconduct. No evidence was adduced to the contrary. In those circumstances, I accept Mr Redman’s evidence on that issue.

[81] Because of the material difference between a termination on the grounds of medical incapacity and a termination for misconduct, I find that Mr Parish was not treated unfairly in comparison to Mr Butterham.

Request for documents

[82] Mr Tanner gave the following unchallenged evidence, which I accept, in relation to the meeting he attended with Mr Parish, Mr Shadbolt and Ms Collins on 30 March 2016:

(a) Mr Shadbolt had with him in the meeting a list of the questions he intended to ask Mr Parish and a “printout from the modular system and the two-way radio system”;

(b) Mr Tanner requested a copy of those documents from Mr Shadbolt; and

(c) After waiting about 20 minutes after the conclusion of the meeting, Mr Shadbolt told Mr Tanner that a human resources employee had informed him that he did not have to provide any of the documents to Mr Tanner. As a result, Mr Shadbolt refused to provide any of the documents sought to Mr Tanner or Mr Parish.

[83] I do not see any problem with Mr Shadbolt not providing a copy of his list of intended questions to Mr Tanner or Mr Parish after the meeting. Mr Tanner attended that meeting in his capacity as Mr Parish’s support person and took notes of the questions asked of Mr Parish and his responses to those questions. However, the printout from the modular system and the two-way radio system are in a different category. Those documents were relevant to a determination of what happened at particular points in time during the night shift. By the time the meeting of 30 March 2016 took place, Mr Parish had already provided Mt Arthur with a Timeline in which he set out his recollection of events during his night shift on 20-21 March 2016 and Mr Parish had “read word for word” from his letter during the meeting on 24 March 2016, again giving his version of events. In those circumstances, this was not a case in which documents were reasonably refused to prevent an employee from using contemporaneous records to “fit” their “story” into a particular timeline or sequence of events.

[84] The documents sought were relevant to the investigation being undertaken by Mt Arthur. No good reason was provided by Mt Arthur for its refusal to provide the documents to Mr Parish. In my view, the printout from the modular system and the two-way radio system should, as part of a fair investigation process, have been provided to Mr Parish. However, in the particular circumstances of this case and in light of the factual findings I have made above, I am satisfied that the provision of such documents would not have altered either the decision reached by Mr Arthur to dismiss Mr Parish or my decision in this matter. I am also satisfied that Mr Parish was afforded an adequate opportunity to respond to the allegations made against him.

Remorse

[85] I accept that Mr Parish has expressed remorse on a number of occasions for his conduct on 20 – 21 March 2016. However, his expressions of remorse are, in my assessment, to be given less weight than might otherwise be the case on the basis that he provided different versions of events during the investigation process 42 which were, in my view, deliberately designed to assist his case and he has sought, in a number of respects, to blame Mr Charters for his own failures to comply with directions and procedures concerning fatigue.

Conclusion

[86] Mt Arthur had a sound, defensible and well founded reason for dismissing Mr Parish on the basis of his conduct. In particular, Mr Parish’s dismissal was based on his substantial breaches of Mt Arthur’s policies, procedures and directions. Mt Arthur undertook a detailed investigation into Mr Parish’s conduct and the matters he raised. Mt Arthur gave Mr Parish every chance to participate in the investigation and respond to the allegations made against him before the final decision was made to terminate his employment. He was afforded procedural fairness throughout the process, save in relation to the documents he requested. Mt Arthur’s decision to impose the sanction of termination of employment was supported by a recent prior warning concerning misconduct in the workplace.

[87] Having considered each of the matters specified in s.387 of the Act, I am satisfied that Mt Arthur’s dismissal of Mr Parish was not harsh, unjust or unreasonable. Mr Parish’s unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

Ms J Short, CFMEU Legal Officer, on behalf of the applicant;

Ms J Williams, of counsel, together with Mr B Milne, solicitor from Herbert Smith Freehills, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

August, 23 & September, 1.

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

5 Ibid

6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 7   Ibid

 8   Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363

 9   Ibid per Dixon J at p 362

 10   Ibid per Rich J at p 350

 11   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

 12   [2013] FWCFB 6191

 13   PN518-520

 14   PN84 & PN147

 15   In particular, the Mt Arthur Fatigue Management Procedure – management of fatigue once it is reported or identified

 16   PN1003

 17   PN90 & PN100

 18   PN130-131; PN150

 19   Ex R1 at annexure SC-2

 20   PN185

 21   PN325-7

 22   PN287-9

 23   PN305-9

 24   PN240 & 247

 25   Barclay v Nylex Corporation Pty Ltd, PR932226, 30 May 2003 at [197]

 26   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 27   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 28   Previsic v Australian Quarantine Inspection Services Print Q3730

 29   RMIT v Asher (2010) 194 IR 1 at 14-15

 30   Ex A1 at [104]

31 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

 32   [2013] FWCFB 6191

 33   Toll Holdings Ltd t/a Toll Transport v Johnpulle [2016] FWCFB 108 at [15]

 34   Carter v E.G. Green & Sons Pty Ltd, Print P9619, 23 March 1998

 35   Fatigue Management Procedure at p1

 36   Fatigue Management Procedure at p3

 37   Ibid

 38   PN529-30

 39   See, for example, PN1003.

 40   Fatigue Management Procedure – Possible Options for Management of Fatigue – pp11-12 at third bullet point on p12

 41   Fatigue Management Procedure – Possible Options for Prevention of Fatigue – pp10-11 at [8]

 42   These matters are dealt with in the findings of fact set out in paragraphs [13] to [26] above.

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