| [2017] FWC 1952 [Note: An appeal pursuant to s.604 (C2017/3076) was lodged against this decision - refer to Full Bench decision dated 28 September 2017 [[2017] FWCFB 4944] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Hill
v
Peabody Energy Australia PCI Mine Management Pty Ltd
(U2016/11153)
COMMISSIONER SPENCER |
BRISBANE, 18 MAY 2017 |
Application for relief from unfair dismissal.
[1] This Decision relates to an application made by Mr Andrew Hill (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Peabody Energy Australia PCI Mine Management Pty Ltd (the Respondent) was harsh, unjust and or unreasonable.
[2] The Applicant was employed by the Respondent as a Level 2 HV (High Voltage) Electrician in the Mobile Maintenance Department at the Coppabella Mine, from 12 September 2012 until his dismissal on 22 August 2016. The Applicant’s employment was terminated by the Respondent as a result of the Applicant losing control of a light vehicle he was driving, which collided with a bund.
[3] The matter was listed for Conciliation before a Fair Work Commission Conciliator, however was unable to be resolved and Directions were issued for the filing of submissions. The substantive matter was heard at the Mackay Courthouse, with final submissions in Brisbane.
[4] The Applicant was represented by Mr Reid of Counsel, instructed by Mr Newman, Legal Officer of the Construction, Forestry, Mining and Energy Union – Mining and Energy Division Queensland District (CFMEU). The Respondent was represented by Mr Williams, Partner of Minter Ellison. Both legal representatives were granted permission to appear pursuant to s.596 of the Act.
[5] It is noted that whilst not all of the evidence and submissions in this matter are referred to, all of these have been considered in making this Decision.
[6] The Applicant was employed by the Respondent in September 2012 to work in the Mobile Maintenance Department at the Coppabella Mine. The Applicant’s employment was terminated on 22 August 2016. The Respondent stated the Applicant received three separate warnings in relation to his conduct, prior to the incident resulting in the dismissal. These prior incidents occurred: in June 2014, when it was alleged that the Applicant fell asleep in his vehicle at work; in July 2014, when disciplinary action was taken regarding the Applicant reading a magazine and rolling a cigarette whilst in a prestart meeting; and in April 2016, when further disciplinary action was taken following speeding notifications the Applicant received whilst operating a light vehicle.
[7] On 5 August 2016, the Applicant received a Show Cause letter from the Respondent, which stated as follows:
“Dear Andrew,
Show cause
On Wednesday 20 July 2016 we were notified of an incident at the maintenance laydown area involving significant damage to a light vehicle.
Investigations have determined that on Thursday 14 July 2016 the Open Cut Examiner (OCE) erected a restricted access sign limiting vehicle access to the ‘pit.’ Access to the pit was restricted due to potentially dangerous conditions caused by heavy rainfall. At 10.18pm, shortly after erecting the restricted access sign, the OCE sent an email to all department managers advising them that the ‘Coppabella pit is now under restricted access from the workshop into the pit.’
At 6:00pm on Tuesday 19 July your shift supervisor, Craig Collins, read the OCE report to all maintenance crew members at the pre-start meeting and made specific reference to continued wet weather conditions and advised that driving in the pit would be restricted to ‘authorised personnel only.’ Mr Collins instructed that if employees were unsure about entering they were to make contact with the OCE/Supervisor prior to entering the area.
At approximately 4:15am on Wednesday 20 July you drove light vehicle SG333 from the workshop to the maintenance laydown area via Creek Pit Road. Upon entering the pit you passed the restricted access sign. Checks of radio recordings confirm that contrary to instructions from your shift supervisor, you entered the pit without seeking permission from the OCE/Supervisor. Halfway down Creek Pit Road you attempted to turn right into the maintenance laydown area. As you turned the vehicle to the right you lost control of the vehicle and it slid left making heavy contact with a bund. The speed at which you were travelling was such that the force of the impact resulted in the wheel assembly being wedged horizontally under the body of the vehicle.
The purpose of this letter is to formally outline the allegation against you and to provide you with an opportunity to respond in writing.
The allegation is that at approximately 4:14am on Wednesday 20 July you entered a ‘no go’ zone constituting a breach of Cardinal Rule 3.
This incident is very serious and as evidenced by the extensive damage to the vehicle, the potential for injury and the safety implications to you and others is significant.
A further aggravating factor is that you are currently the subject of a final written warning for an incident that occurred on 20 April 2016. On April 2016 the vehicle monitoring system identified that you violated the site traffic rules by exceeding the site speed limit ‘by up to 15 kilometres per hour.’ You were advised in this final written warning that ‘a future breach will result in further disciplinary action up to and including termination of employment.’ Please note that this is the third final written warning issued to you since June 2014.
As an experienced tradesman you have a clear understanding of the required standards of an employee working at Peabody Energy. In this case you have demonstrated behaviours that show a disregard to Peabody site safety standards. As demonstrated by the damage to your vehicle your actions had the potential to place your safety and the safety of your fellow works at an unacceptable level of risk. Your continued failure to abide by the correct safety standards highlights an on-going pattern of behaviour that is of great concern.
Before we make any decision in relation to possible disciplinary action arising from this incident, we would like to provide you with an opportunity to respond to the allegations that have been made.
You are required to show cause as to why disciplinary action, including possible termination of your employment, should not be taken against you in relation to this incident.
We require a written response by 12pm Friday 12 August 2016. Please provide your written response to Andrew Malcolm (Maintenance Manager) [redacted].
After we have had the opportunity to review your response we will contact you. In the interim, we confirm that you remain stood down on full pay and are not required to attend work at Coppabella Mine until further notice.
Please note that the process outlined in this letter may lead you to being dismissed from your employment. Your response to this show cause letter will be considered before any decision is made. If you choose not to respond to this letter, we will make a decision about disciplinary action, including possible termination, on the basis of the material that we currently have to hand. If you believe there are factors we should take into account in making a decision, please draw those to our attention in your response to this show cause notice.
We recognise that this may be a difficult time for you and your family and encourage you to make use of the Peabody EAP (which can be contacted on 1800 808 374).
If you have any queries, or you are in any way unclear as to what Peabody is notifying you of, please contact me on [redacted].
Yours sincerely,
Andrew Malcolm
Maintenance Manager.”
[8] In response to the Show Cause letter, the Applicant provided the following response dated 12 August 2016:
“Dear Andrew
Re: Show Cause Response
I refer to your letter dated 5 August 2016 where you request a response to the matters raised in that letter. My response is set out below.
The allegation made against me relates to an incident on the morning of Wednesday 20 July 2016, where it is alleged that I entered a ‘no-go' zone constituting a breach of Cardinal Rule 3.
I was in the area alleged, but do not agree that it was considered a 'no-go' zone. Below is a history of the work conducted in the area in the week leading up to the incident.
• On the evening of Thursday 14th July there were discussions in the prestart meeting that the pit had been closed but the OCE had not informed the supervisors of this. There was a Restricted Area sign in place and clearly visible hazard cones across the main haul road entry.
During my shift on this night I needed to access the maintenance laydown yard. I sought permission from Chris Sorrenson over the radio. He replied to my request saying that due to the heavy rain he only wanted essential people in the pit but if I needed to drive to the maintenance laydown yard to get some gear that I would be right to proceed.
• On Friday 15th July the pit was closed with hazard cones lined across the entry and exit and the Restriction Area sign still in place. During this shift there were dragline, dozers, graders, service trucks, workshop/field utes and personnel operating in the pit.
• On Saturday 16th July the pit remained closed, hazard cones and the restricted area sign were still in place. Dragline, dozers, graders, service trucks, workshop/field utes and personnel were operating in the pit.
During the pre-start meeting the same OCE report as the previous shift was issued, but during this shift some of the workshop maintenance employees, including myself were issued tasks in the pit by Craig Collins, workshop supervisor. I worked the entire shift in the pit.
• On Sunday 17th July the pit remained closed with some hazard cones in place, while others had rolled to the side. The restricted area sign was covered in mud and not easily read. There was a contractor OCE on duty during this shift. Dragline, dozers, graders, service trucks, workshop/field utes and personnel were operating in the pit.
The same prestart report as the previous shift was given by the OCE. More machines were operating actively in the pit. I was asked by Craig Collins to carry out repairs on a Hitachi RD truck for issues I had diagnosed the night before. During this shift I was also called away to help start a lighting plant, also in the pit.
• On Monday 18th July the pit was again closed but there were many cones missing. I believe they had been moved off the road to allow for the service trucks to come through during dayshift and nightshift and had not been replaced. The restricted area sign was covered in mud with the areas of delineation and high vis concealed. No one on the dayshift or nightshift had been maintaining the signage. Dragline, dozers, graders, service trucks, workshop/field utes and personnel were operating in the pit. There had been work conducted in the pit on all shifts up to this point.
• On Tuesday 19th July there were dragline, graders, service trucks, workshop field/utes and personnel operating in the pit. Attempts to start the coal circuit and digger 6 were heard over the radio.
The prestart meeting for this shift started a little differently than the shifts prior to this night. The mood was light and much of the conversation between Craig Collins and the crew was not related to work matters, with a lot of laughing and joking taking place. This was unusual and the mood not as serious as normal. I can honestly say that I do not recall Craig reading details of the OCE report relating to restricted access to the pit. I'm sure that other members of my crew would be in the same position. Craig skipped through the OCE report much quicker than he had for the 6 nightshifts prior, possibly because there had been considerable time wasted with the earlier conversation.
As the prestart was rushed my jobs were not announced until after the prestart meeting and at the leading hands desk. I received a work order to find RD65 and repair the door hinges, etc. Shane Jones, the auto electrician also received a work order for this machine. Shane and I arranged to pair up together in his Landcruiser, as the vehicle I had signed for did not have adequate lighting.
We drove to 3 or 4 locations where we thought RD65 would be before we eventually found it at the end of Radio Hill Go-Line. We completed this task and were then requested by the workshop to go to fix a broken down service truck at the back end of East Pit. This particular truck had spent the entire week servicing dozers that had been working for the entire week in the ‘no-go zone'. When we arrived at the service truck there was an employee on board with the driver completing his 'On the Job Training Practical Assessment' so he could get passed out on operating this particular service truck. He was conducting his training in a 'no-go zone’. We fixed the service truck and went back to our duties.
From here I was requested by Craig Collins to head to digger 6 at the bottom of east pit. Two other employees also attended this job and they brought their service trucks - the tilt tray and the EWP. On our way to the bottom of the coal pit we passed active graders cleaning up the road access up and down the decline. The job we were issued is considered high risk. We were conducting this high risk task in an apparent 'no-go' zone. The pit was apparently closed and just out of booms length was the dragline swinging its bucket. The OCE approved this high risk job.
From this job I was requested over the two-way radio to go back to the workshop and fix a smoke alarm. This had already been completed by the time I arrived so from here I looked for housekeeping jobs but there were none in the workshop. Due to the weather conditions all week there were water bottles, muddy rags, litter, etc just around from the workshop at our dragline/container maintenance yard on the slab of concrete beside our electrical containers. We had utilised this area to clean our headlights and windscreens all week due to the muddy conditions. I decided to go and clean up this area, as we had earlier been reprimanded over the state of the workshop at handover time. I left to complete this task in vehicle SG333 and was travelling to the Laydown Yard when the incident occurred.
By this time, given that 7 days’ worth of traffic had been going in and out of the restricted area, including the graders most of the night trying to get the main haul road ready to run that coal circuit from digger 6, the restricted access signs were non-existent. No orange cone/hat delineation was visible and no reflective sign was able to be seen. It appeared to me that the OCE had decided to take it down.
Response to allegation of losing control of the vehicle:
I deny that I lost control of the vehicle in the manner alleged. I was not travelling at speed and was driving to the conditions. SG333 is the only workshop car that does not have spotlights fitted and has no mudguards across the front end of the car below the bull bar to prevent mud splashing and flicking up and blackening the light defusers. I have asked multiple times for spotlights to be fitted to this vehicle and have only ever been told that it would happen if the lights were in stock. This request has never gone any further, I doubt that this vehicle would pass the mandatory mine specifications required.
Response to a breach of Cardinal Rule 3 by entering a 'no go' zone
Peabody Cardinal Rule 3 states that an employee will not enter a 'no-go' zone. The definition in the Peabody Policy of a 'no-go' zone is: An exclusion zone determined by site specific risk assessments, procedures and OEMs as an area where people and or equipment cannot enter due to a risk of injury and equipment damage.
I believe this would mean that everyone in the 7 days prior to the incident that was issued work or required in the pit would have had to sign onto a site specific risk assessment for each shift and a new one reviewed each shift in accordance with the changing weather conditions as part of the procedure to be in a 'no-go' zone. This did not occur.
Peabody Section 3.7- closed or restricted access states: Only 'No unauthorised entry' signs should be used in conjunction with witches hats to close off any road system or area that may constitute a hazard. If restriction or closure is required, the OCE will communicate with the area supervisor and the other relevant parties. It is stated in the show cause letter that the OCE erected a Restricted Access Sign. The policy suggests that the wrong sign was used. A 'No unauthorised entry' sign should have been in place. A Restricted Access Area is described in the policy as an area that personnel and machinery cannot enter. For example, on a highwall/low wall a 'no-go' zone is the restriction area from the edge. This area cannot be entered and personnel cannot call up to get authorised entry.
As can be seen from the history of activities in the preceding shifts to the incident, on the shift of 14 July 2016 I contacted the OCE and was given authorisation to access the Laydown Maintenance Yard. I was throughout the week being delegated specific work jobs from the prestart meetings, as were others. At no point was it mentioned that the pit was a 'no-go' zone and we were not required to view and sign onto the site specific risk assessment to gain access to this zone.
In the shifts leading up to the incident Craig Collins would issue out the duties to employees in pre-start and for some pit jobs he would organise authorisation from the OCE. Other nights, including the night of the incident, he did not.
As mentioned above, over the course of the week, work was constantly being done in the pit, the alleged 'no-go' zone. This included high risk jobs and even an employee conducting training in this area.
By the time of the incident the restricted access sign and high vis cones that had been put in place some 6 days prior were not visible. In discussions with my fellow workmates after the event, I believe the cones had been kicked aside to allow a service truck to move in and out of the area and had not been replaced. There is no aerial lighting at this intersection, nor were lighting plants set up in the area to draw attention to the 'restrictions'. For what is the main intersection of the coal mine there is a general lack of affective lighting, whatever the weather conditions.
Taking into account all of the events leading up to the incident I believe I was right to assume that the area was no longer restricted area.
I believe that a no-go area is exactly that, no one can enter the area. I dispute that I have breached Cardinal Rule 3, as the area was certainly not treated as a ‘no-go area' for most of the week leading up to the incident.
Peabody Policy for Cardinal Rules:
The Peabody Policy for cardinal rules states: The person or people involved must be informed that a potential breach has occurred, be stood aside and an investigation commenced.
I do not believe that the correct procedure for a possible breach of the cardinal rules has been followed. I left the site for rostered 7 days leave immediately after I completed the incident report on 20 July. It wasn't until one week later that I was notified by telephone that I was stood down and to not bother coming back to work until an investigation had been completed. I was not advised that there had been a breach at this point. Two weeks after the incident I was officially stood down in writing for a cardinal 3 rule breach. This was the first mention of the breach. I have requested a copy of the investigation but still have not received this. I have also requested a copy of the current site rules and regulations but have not received this either. Not one person from the company has inquired whether I was ok after such a 'significant' accident.
In regards to, the prior final written warning, in April 2016 I was issued a final written warning stating I had exceeded the speed limit in LV76 in the time period between 8:00-9:00pm. The Navman data supporting the written warning was contrary and inaccurate to the notifications dispatch and OCE received at the time. The true data obtained from the OCE was conflicting with the alleged data I was issued with the final written warning. It clearly shows 7 notifications were sent in regards to LV76 at the time of the events, none exceeding 70km/h. On these notifications sent from the Navman it is stated at the very top of the Coppabella Mine Site the speed limit threshold is 70km/hr. This 10km 'Good Grace' as it was explained allows for instrument calibration errors, aftermarket mud tyres, aftermarket suspensions and loose/slippery road surfaces showing inaccurate wheel speeds given the speed sensor is a proximity switch located on the transmission drive output side. The night that Dispatch notified me, the driver of LV76, of the notifications. I was the only Electrician in the pit. Within one hour the company's two priority machines, the dragline and shovel had faulted down with electrical faults and were spaced on the opposite sides of the pit from each other. I managed to fault diagnose and have the two priority machines for the mine up and running within the hour without risking myself or fellow workers' safety. Leading up to this I was at the Inpit Go-line diagnosing 3 RD dump trucks, one of which remained on the Go-Line and had remained down all day from the previous shift and was handed over with no explanation. All 3 trucks and priority machines were all up and running by 9:00pm. I met with the supervisor on duty that night and was given a verbal warning/counselling which is the procedure for an employee if the driving offence was a first time offence, which it was. Six nights later Peter Franklin (Electrical Supervisor) escalated the alleged driving offence and issued me a First and Final Written Warning accompanied by questionable data. I did not sign this Written Final Warning.
It should be noted approximately 3 to 4 weeks later an employee on dayshift B crew that in the same car, LV76, the B crew Crane driver acquired this vehicle to drive from a pit location to toilets nearby and a notification of 80-90km/h was recorded. He received a verbal warning by Mark Hetherington (Workshop Field Superintendant) as it was his first alleged offence. It was not taken further.
In regards to the comments stating that I "have an on-going pattern of behaviour that is of great concern", I strongly disagree with this statement. It is false and is clearly evident and can be seen from each 6 monthly K.P.I Incentive evaluation throughout my 4 years employment. I have maintained a high Standard towards safety obligations and fulfilled safety targets, thus receiving each year the full K.P.I incentive for safety.
I regret that damage was caused to machinery. I was acting in good faith and with the best of intentions when I left to travel to the laydown maintenance yards to commence a clean up. I was not acting recklessly and had every reason to believe that there were no restrictions on the area I was entering, given I had entered it multiple times in the week leading up to the incident and there were no signs indicating otherwise. If it were clear to me that it was a ‘no-go' area and this area had not been entered during the week I would not have proceeded.
I am an honest employee that is utilised not only in my employed profession but in other areas of the workshop/field. I enjoy working for Peabody Coppabella.
Termination from my employment would cause me significant hardship. The industry is in a downturn and I am concerned that I will find it difficult to gain other employment.
Yours sincerely,
Andrew Hill”
[9] On 22 August 2016, the Applicant received a termination letter from the Respondent, which is extracted as follows:
“This letter relates to a meeting you attended by phone with me on 5 August 2016 and letter of the same day, in which we outlined the allegations against you in reference to your conduct at Coppabella Mine.
On Wednesday 20 July 2016 we were notified of an incident at the maintenance laydown area involving significant damage to a light vehicle. Investigations have determined that on Thursday 14 July 2016 the Open Cut Examiner (OCE) erected a restricted access sign limiting vehicle access to the 'pit'. Access to the pit was restricted due to potentially dangerous conditions caused by heavy rainfall. At 10:18pm, shortly after erecting the restricted access sign, the OCE sent an email to all department managers advising them that the 'Coppabella pit is now under restricted access from the workshop into the pit',
At 6:00pm on Tuesday 19 July your shift supervisor, Craig Collins, read the OCE report to all maintenance crew members at the pre-start meeting and made specific reference to continued wet weather conditions and advised that driving in the pit would be restricted to authorised personnel only'. Mr Collins instructed that if employees were unsure about entering an area they were to make contact with the OCE/Supervisor prior to entering the area.
At approximately 4:15am on Wednesday 20 July you drove light vehicle SG333 from the workshop to the maintenance laydown area via Creek Pit Road. Upon entering the pit you passed the restricted access sign. Checks of radio recordings confirm that contrary to instructions from your shift supervisor you entered the pit without seeking permission from the OCE/Supervisor. Halfway down Creek Pit Road you attempted to turn right into the maintenance laydown area. As you turned the vehicle to the right you lost control of the vehicle and it slid left making heavy contact with a bund. The speed at which you were travelling was such that the force of the impact resulted in the wheel assembly being wedged horizontally under the body of the vehicle.
The allegation is that at approximately 4.15am on Wednesday 20 July you entered a 'no go' zone constituting a breach of Cardinal Rule 3.
In our letter of 5 August 2016 we asked you to respond to the allegations and show cause as to why disciplinary action up to and including termination should not be taken against you. You provided your response to the show cause on 12 August 2016. In your response to the show cause letter you stated that you did not believe you had entered a 'no go zone' constituting a breach of Cardinal Rule 3. You also alleged that the Restricted Access signage and orange cones had been removed from the area in question. In regards to the allegation of losing control of your vehicle, you deny that you were not driving to conditions.
We have reviewed your show cause response and have concluded that we agree that the restricted area was not a 'no go zone' as defined in the Peabody Policy for Cardinal Rules.
Although the allegation does not substantiate a breach of Cardinal Rule 3, Peabody considers that entering a Restricted Area without authorisation to be a very serious breach of site safety procedures. Further to this as evidenced by the extensive damage to the vehicle, it is clear that you were not driving to conditions. The potential for injury and the safety implications to yourself was significant.
A further aggravating factor is that you are currently the subject of a final written warning for an incident that occurred on 20 April 2016. On 20 April 2016 the vehicle monitoring system identified that you violated the site traffic rules by exceeding the site speed limit ‘by up to 15 kilometres per hour'. You were advised in this final written warning that 'a future breach will result in further disciplinary action up to and including termination of employment', Please note that this is the third final written Warning issued to you since June 2014.
As an experienced tradesperson you have a clear understanding of the required standards of an employee working at Peabody Energy. In this case you have demonstrated behaviours that show a disregard to Peabody site safety standards. This is demonstrated by your failure to follow site safety procedures and instructions. Further to this the damage to your vehicle and your actions in failing to drive to conditions had the potential to place your safety and the safety of your fellow workers at an unacceptable level of risk.
Given all of the evidence I have concluded that your actions have been deemed to constitute serious misconduct and demonstrate a standard of behaviour that does not meet the standards for employment with Peabody.
This letter serves to notify you of the termination of your employment effective immediately. As per the terms and conditions of your employment you will receive all entitlements applicable as per the Peabody Energy Australia Coppabella Enterprise Agreement 2013.
We recognise that his may be a difficult time for you and your family and encourage you to make use of the Peabody Employee Assistance Program (which can be contacted on [redacted]).
If you have any queries, or you are in any way unclear as to what Peabody is notifying you of you should contact Taryn Hocking on [redacted].
Andy Malcolm
Maintenance Manager”
[10] The application was made pursuant to s.394 of the Act, which provides as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[11] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[12] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 8 September 2016. The originating application stated that the dismissal took effect on 22 August 2016. As the date of termination is not in dispute between the parties, the application was made within the period required in s.394(2) of the Act.
[13] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[14] There is no dispute that the Applicant had completed the minimum employment period and was not jurisdictionally barred as a high income employee. No other jurisdictional objections were made by the Respondent. The Applicant was a person protected by the unfair dismissal provisions at the time of the dismissal.
[15] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[16] There is no dispute that the Applicant is a person who has been dismissed. The matters in ss.385(c) and (d) do not arise.
[17] The Applicant has alleged that the dismissal was harsh, unjust and or unreasonable. In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account those matters specified in s.387 of the Act, as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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; and
(h) any other matters that the FWC considers relevant.”
[18] Clause 27 of the Peabody Energy Australia Coppabella Enterprise Agreement 2013 sets out termination of employment with notice or for serious misconduct, by the Respondent. Clause 27 is extracted as follows:
“27 Termination by the Company
The Company will give full time and part time employees who have completed their
probationary period notice of termination in accordance with the following table:
Period of continuous service |
Period of notice |
Not more than 3 years |
2 weeks |
More than 3 years but not more than 5 years |
3 weeks |
More than 5 years |
4 weeks |
The Company may pay an employee at their Total Fixed Remuneration in lieu of giving all or part of the required notice.
If the employee is over 45 years of age and has completed at least two continuous years of employment, the period of notice will be five weeks.
If the Company has engaged a fixed term or fixed task employee, employment will terminate at the completion of the period or task without the need for notice of termination to be given to the employee. Casual employees may resign or be terminated by the Company on a day's notice.
The requirement to give notice of termination or pay in lieu does not apply when the
Company is terminating an employee for serious misconduct. In such a case, the termination will take effect immediately.”
[19] The Applicant was employed by the Respondent at the Coppabella Mine from September 2012 until the termination of his employment on 22 August 2016.
[20] Prior to the termination of the Applicant’s employment, he had received three final warnings issued in June and July of 2014, and April 2016.
[21] On 20 July 2016, the Applicant was driving a light vehicle, when he lost control of the vehicle and collided with a bund. The Applicant returned to the Coppabella Mine workshop and immediately reported the incident. 1 After the incident, the Applicant was not rostered to work for another seven days. Prior to the Applicant’s next shift, Peter Franklin, Electrical Supervisor, telephoned the Applicant and told him not to come in to work.
[22] On 5 August 2016, the Applicant received a Show Cause letter. The letter stated: “The allegation is that at approximately 4.14am on Wednesday 20 July, you entered a ‘no go’ zone constituting a breach of Cardinal Rule 3”. 2 The letter requested that the Applicant provide a written response by 12:00pm on Friday, 12 August 2016. The Applicant delivered his response letter dated 12 August 2016.
[23] The Applicant received a termination letter dated 22 August 2016, with immediate effect. 3 The Applicant’s employment was terminated by a final finding that the Applicant’s actions on 20 July 2016, constituted a “serious breach of safety procedures” as he had not been “driving to the conditions”.4 The Respondent terminated the Applicant’s employment on the grounds that these actions were “serious misconduct”.
[24] The Applicant filed two Statements as part of its evidence, a Reply Statement from the Applicant and a Statement from Mr Stephen Woods, Industry Safety and Health representative appointed by the Construction, Forestry, Mining and Energy Union (CFMEU), that addressed the warning the Applicant received for speeding in April 2016.
[25] The Applicant in his reply Statement, stated that in relation to his final warning for speeding, the Applicant recalled that he had a lengthy discussion about calibration upkeeps on the LV76, as this was the only vehicle that has this device installed in the Maintenance Workshop/Field department. The Applicant stated that the vehicle is not registered and is not roadworthy; it has aftermarket tyres, aftermarket suspension, and the speed is calculated from a sensor placed after the transmission and is a metal proximity switch which gathers its reading from the number of revolutions the car’s output drive shaft does.
[26] The Applicant stated that, “It is my understanding that this is an inaccurate method to record a precise reading, I believe that this device is the cheaper option out of the 2 devices Navman offer and is why Navman allow a threshold speed of 70km/hr a 10km/hr buffer due to inaccuracies”.
[27] The Applicant submitted that this was the first time he had received a notification for driving above the speed limit on shift. The Applicant stated that Mr Mark Lee, Fitter/Step Up Leading Hand, said to the Applicant that everybody pulled up for speeding for the first time received a verbal counselling/first warning in accordance with the Peabody Performance Improvement Warning Policy. The Applicant stated that following this, he questioned Mr Lee in relation to his meeting with Mr Malcolm and Mr Hetherington, and asked Mr Lee how this was handled. The Applicant stated that Mr Lee responded that he had said to Mr Malcolm and Mr Hetherington that he had issued the Applicant with a verbal counselling/warning, as written in the policy. The Applicant also stated that Mr Lee said to the Applicant that his superiors were happy with the way he had dealt with the notification and the verbal counselling first warning issued. The Applicant stated that Mr Lee’s exact words were, “it’s finished and won’t be going further”. The Applicant stated that despite this, seven days later, the level of the warning was escalated due to speed data, which the Applicant had not seen.
[28] Mr Woods of the CFMEU provided a Statement in support of the Applicant. Mr Woods has been in the role as Industry Safety and Health representative with the CFMEU since 2012. Mr Woods stated that he had worked in several mines in Queensland, including Cook Colliery, North Goonyella Underground Mine and Mt Isa Mines. Mr Woods stated that, in his opinion, the incident of 20 July 2016 involving the Applicant, met the definition of a “High Potential Incident” under the Coal Mining Safety and Health Act 1999 (Qld) (the Coal Mining Act). Section 17 of the Coal Mining Act provides that a High Potential Incident is “an event, or a series of events that causes or has the potential to cause a significant adverse effect on the safety and health of a person”. Mr Woods stated in response to Mr Hetherington’s evidence, that an ICAM investigation was not required, that had the incident been classified as a High Potential Incident, s.198 of the Coal Mining Act required that the site senior executive for the mine to report the incident to an inspector of mines and ISHR as soon as practicable after becoming aware of the incident.
[29] Mr Woods also stated that it is a requirement of the Regulations, that a mine is required, in its Safety and Health Management System, to have procedures for investigating accidents. Further, that he had “checked the ISHR’s database of incident reports and can confirm that, at date of this statement, I am unable to find any report of the incident of 20 July 2016”.
[30] The Applicant’s submissions addressed each of the criteria set out at s.387 of the Act as follows:
[31] The Applicant conceded that he had been in the alleged “no go zone” on the day of the incident, 20 July 2016, however refuted the allegation that the area had been a “no go zone” as defined in the Peabody Policy. The Applicant submitted that the signs initially erected at this area on 15 July 2016 stated “restricted access area” and not “no go zone”. In the termination letter dated 22 August 2016, the Respondent agreed with the Applicant’s assertion that the area had been marked as a “restricted access area” and not a “no go zone”.
[32] The Applicant further submitted that during the period from 15 July 2016 to 20 July 2016 numerous employees, including the Applicant, were directed to perform work in the area. The Applicant submitted that whilst at the beginning of the “roster swing” 5 the area was marked “restricted access area”, over the course of the swing more work was frequently being performed by employees in the area.
[33] Further, the Applicant submitted that the signs and markers used to delineate the area were not maintained by the Open Cut Examiner (OCE). The Applicant submitted in his response to the Show Cause letter that, “by the time of the incident the restricted access sign and high vis cones that had been put in place some 6 days prior were not visible.”
[34] The Applicant further submitted that for these reasons, the area no longer appeared to be treated as restricted on the day of the incident. The Applicant submitted that by 20 July 2016, there “had been 7 days’ worth of traffic going in and out of the area” 6, including “dragline, dozers, graders, service trucks, workshop/field utes and personnel” operating in the area.
[35] The Applicant submitted that, having regard to the treatment of the area on and leading up to 20 July 2016, he believed he would be able to enter this area to perform work without permission. The Applicant submitted that if the Respondent could show that the area was still restricted, the treatment of the area on 20 July 2016 would nevertheless have led a reasonable person to conclude that the restriction to the area had been relaxed or removed, and that in entering the area the Applicant had not committed a “serious breach”.
[36] The Applicant submitted that on 20 July 2016, prior to the incident, he was issued with a job that was “considered high risk by the Company”, to be performed in the pit. 7 The Applicant submitted that he could not complete this job and was told to return to the workshop. The Applicant submitted that, as there did not appear to be any housekeeping tasks in the workshop, he took the initiative to return to the pit to clean up the laydown area prior to the end of shift. The Applicant submitted that whilst he had not been directed to perform this task by his supervisor, the crew had been directed to keep this laydown area tidy.
[37] In the Show Cause letter, the Respondent stated that the Applicant did not drive his light vehicle to conditions “as evidenced by the extensive damage to the vehicle”. The Applicant submitted that the Respondent could not have made this conclusion based merely on their observation of the damage to the vehicle. The Applicant submitted that no investigation allowing this conclusion had been performed to his knowledge.
[38] The Applicant submitted that other factors contributed to the incident, including slippery and muddy conditions, poor delineation at the entrance to the yard, and a lack of mudguards and sufficient lighting on the light vehicle. Regarding the lack of sufficient lighting, the Applicant submitted that he had asked his supervisors “multiple times” 8 for spotlights to be fitted to this vehicle. The Applicant submitted that at the time of the incident, he did not believe the vehicle would have passed the mandatory mine specifications required.
[39] Further, the Applicant submitted that he was not driving at excessive speed and took extra precautions to drive to the conditions, however, the lack of mudguards and the poor head lighting meant there was very little he could have done to prevent the vehicle from dropping into the bund. The Applicant submitted that these issues did not appear to have been taken into consideration by the Respondent, and that the Respondent’s finding that the Applicant did not drive to the conditions could not be supported.
[40] The Applicant submitted that the Respondent could not show that the Applicant had “committed a serious misconduct within the definition of regulation 1.07” 9 of the Fair Work Regulations 2009. The Applicant submitted that, in terms of driving the vehicle into the bund or entering any restricted area in place, his actions were not “wilful or deliberate”, could not have caused damage to the business of the Respondent in any way, and whilst the consequences of the incident could have caused harm to himself, this conduct was not intended nor was the incident reasonably foreseeable.10 Finally, the Applicant submitted that his actions could not be classified as theft, assault or intoxication and at no stage refused a lawful and reasonable direction from his employer.
[41] The Applicant submitted that there was no valid reason for the termination of the Applicant’s employment as: the Respondent did not articulate what policy the Applicant had breached; the restricted area at the mine was not signed or delineated and significant work was being performed in the area and a reasonable person would have believed that the area was no longer restricted; and the Respondent did not substantiate how the Applicant “failed to drive to conditions.” The Applicant provided that the Respondent erred in classifying the 2014 conduct as a “safety issue” and erred in its reliance on the final warnings issued in 2014; stating that the warning for speeding ought to have been a verbal warning. Further, the Applicant argued the Respondent was relying on an ill founded disciplinary history.
[42] The Applicant further submitted that the “breach of site safety procedures” alleged in his termination letter had not been raised with him prior to receiving the termination letter. The Applicant submitted that the termination letter did not specify what site safety procedures the Respondent believed he had breached, and that as a result he could not adequately respond to these allegations.
[43] With regard to the three final warnings referred to in the termination letter, the Applicant submitted that these should not have carried any weight in the Respondent’s decision to terminate the Applicant’s employment. The Applicant acknowledged that his behaviour had not been acceptable at the time these warnings were issued, however submitted that his effort to improve his behaviour had been recognised in his subsequent performance reviews.
[44] Regarding the final warning issued for speeding, the Applicant submitted that he did not believe the speeds recorded on the NAVMAN were correct. The Applicant further submitted that the readings never exceeded 70km per hour, which was stated on each speeding notification as the maximum speed for Coppabella Mine Site. 11
[45] Further, the Applicant submitted that the Respondent’s characterisation of the Applicant’s conduct in the warning in April 2016 was incorrect. The Applicant acknowledged that whilst his conduct could be characterised as a “work conduct breach”, it should not have been classified as a “safety breach” so as to warrant a final warning being issued. 12 The Applicant submitted that the Commission should not consider these warnings as a valid reason for the termination of his employment.
[46] The Applicant submitted that he received a Show Cause letter dated 5 August 2016 in which the Respondent stated that the Applicant had committed a breach of Cardinal Rule 3 by entering a “no go zone”. 13 The Applicant submitted that he requested a copy of the investigation report and the policies that the Respondent had relied on in the Show Cause letter. The Applicant submitted that he did not receive a response from the Respondent.
[47] The Applicant submitted that he delivered a response letter dated 12 August 2016 to the Respondent. In his response, the Applicant refuted that he had entered a “no go zone” as defined in the company’s policy. The Applicant submitted that the Respondent appeared to retract their findings in the termination letter, instead finding that the Applicant had committed “serious misconduct” through a breach of “site safety procedures”. 14
[48] The Applicant submitted that the statement that he had “breached site safety procedures” was “broad and ill-defined” 15. The Applicant submitted that the Respondent gave clear, “albeit incorrect”16 reasoning to support a breach of Cardinal Rule 3 but failed to give clear indication of a specific policy or procedure in their claim that the Applicant committed “serious misconduct” in breaching “site safety procedures”.17 The Applicant submitted that through this re-characterisation of the basis for dismissal, the Applicant was not effectively notified of the reason for his dismissal18.
[49] The Applicant was provided with an opportunity to respond by way of the Show Cause letter of 5 August 2016. He was given seven calendar days to provide a written response, and he provided the response “on or about” 19 12 August 2016.
[50] The Applicant relied on the decision in Fowler v the Australian Red Cross ACT 20 and stated that an opportunity to genuinely respond requires the employer to do more than just “‘go through the motions’ in making a decision to terminate the employment”.21 The Applicant’s response letter was based on a breach of Cardinal Rule 3, and not the re-characterised breach of “site safety procedures” provided in the termination letter. The Applicant submitted that, as this final reason for termination was not given until the employment relationship was ended, he was not given an opportunity to respond to the reason for termination.22
[51] The Applicant acknowledged he was allowed a representative present in the discussions leading up to the dismissal. 23
[52] The Applicant did not provide any submissions on this criterion.
[53] The Applicant submitted that the Respondent’s size did not impact on the procedure followed in effecting the dismissal. 24
[54] The Applicant submitted that the Respondent employs dedicated human resource management specialists. 25
[55] The Applicant submitted that if the Commission decided that there was a valid reason for the dismissal, the dismissal should still be considered unfair “as the decisions were harsh, unjust and unreasonable”. 26 The Applicant submitted that the Commission should have regard to the decision in Makin v GlaxosmithKline Australia Pty Ltd27 where it was stated, “that there is a valid reason for terminating employment does not necessarily mean that the termination was not harsh, unjust or unreasonable”.28
[56] The Applicant further submitted that the Commission should have regard to the Full Bench decision in Woolworths v Brown 29 where a range of factors were outlined that the Commission must consider in order to determine whether the dismissal was contrary to s.387 of the Act:
“These include (but are not limited to) the following:
(a) Ignorance of the policy which the applicant was found to have breached;
(b) The termination was disproportionate to the breach having regard to the employee’s length of service and prior history;
(c) Inconsistent or discriminatory application of the policy;
(d) The need for employers to uphold legitimate OH&S policies and procedures.” 30
[57] The Applicant further submitted that the Commission should have regard to the following from the decision of Woolworths v Brown decision:
“The authorities provide a range of views in a variety of circumstances on the approach that should be adopted with respect to a breach of policy. They are all relevant to these proceedings in providing some guidance as to the approach that should be adopted. But no two sets of circumstances are the same and the factors that weigh on the decision are unique in each case.” 31
[58] The Applicant submitted that there were a range of matters to which the Commission should have regard to when deciding whether or not he was unfairly dismissed. These were as follows: whilst the Applicant was aware of the Respondent’s policies, the Respondent failed to particularise what policy the Applicant breached; if the Applicant was found to have entered a restricted zone without permission, this breach should be considered inadvertent due to the lack of clear signage and delineation that is required to inform employees that an area is a restricted zone, as well as the amount and type of work that was being performed in the restricted zone; if the Commission found that the Applicant had entered a restricted zone without permission, the Applicant’s actions could not be regarded as wilful or deliberate and the Respondent could not rely on a view that the Applicant’s actions constituted serious misconduct; and, the Applicant, has a relatively minor disciplinary history. Further, the Applicant acknowledged that his work performance in 2014 was not acceptable, but that he had since sought to correct his behaviour and, through performance reviews, shown himself to be an exemplary employee. Finally, the Applicant submitted that the third final warning was incorrectly escalated and should only have resulted in a verbal warning.
[59] The Applicant submitted that his disciplinary record, when compared with the significance of any breach of policy, demonstrates that the decision to terminate his employment for serious misconduct was harsh, unjust and unreasonable.
[60] The Respondent denied that the termination of the Applicant’s employment was harsh, unjust or unreasonable. The Respondent submitted that it had a valid reason for the termination of the Applicant’s employment, that being: the Applicant’s serious breach of the mine’s safety procedures and failing to drive to conditions which resulted in an incident. In addition, the Applicant was issued a final written warning four months earlier and the Applicant was afforded procedural fairness throughout the dismissal process in the ways required by s.387 of the Act.
[61] The Respondent also submitted that reinstatement of the Applicant’s employment would not be appropriate in the circumstances. The Respondent provided that the Applicant had received three weeks’ pay in lieu of notice, despite being dismissed on grounds of serious misconduct.
[62] The Respondent submitted that the Applicant commenced his employment on 12 September 2012, as a Level 2 High Voltage Electrician, in the Mobile Maintenance Department, on B Crew at the Mine.
[63] The Respondent submitted that the Applicant had a poor record of compliance with the mine’s safety procedures during his employment. Between the period of 15 June 2014 to 20 April 2016, the Applicant received three written Final Warnings for safety and work conduct breaches.
[64] The Respondent submitted that, at approximately 4:00am on 20 July 2016, the Applicant was involved in a safety incident whilst driving a light vehicle at the mine. The Respondent submitted the Applicant had been notified during a pre-start meeting that the mine pit was a restricted area due to poor conditions caused by heavy rainfall and the area was also signed and marked accordingly. The Respondent submitted the Applicant was directed to contact the OCE for authorisation before entering the mine pit. Despite this, the Applicant entered the area that morning, and on his own admission, had done so on a number of occasions during that shift. Subsequently, the Applicant lost control of the light vehicle he was driving and the vehicle collided with a bund. This caused serious damage to the vehicle. The force of the impact resulted in the left wheel assembly being wedged horizontally under the body of the vehicle.
[65] The Respondent submitted that in the following fortnight, the Respondent investigated the incident. During this time, it was submitted, the Respondent collated a number of documents, including witness statements and an “accountability and personal conduct report”, which formed the basis of the factual investigation into the incident. However, the Respondent submitted that it was not necessary to carry out an ICAM investigation or prepare a formal investigation report. The Respondent relied on the Statement of Mr Barry Hetherington, Maintenance Supervisor who stated that during the week after the incident, and following a discussion with the health and safety team, it was not necessary to carry out the ICAM investigation, due to the Applicant not being injured and because it appeared clear on the evidence collected that the Applicant had lost control of the vehicle in poor weather conditions, which led to the crashing into the bund.
[66] The Respondent submitted that the factual findings outlined in the Statement of Mr Andrew Malcolm, Maintenance Manager, were substantiated on the basis of the investigation documents. Mr Malcolm stated that the following facts were substantiated:
“(a) On 14 July 2016 Mr Sorenson in his role as OCE erected a restricted access sign limiting vehicle access to the Pit and sent an email to all department managers advising them that the Pit 'is now under restricted access from the workshop into the pit' (attached at 'AM-11');
(b) Access to the Pit was restricted because of potentially dangerous conditions caused by heavy rainfall;
(c) At approximately 6:00pm on Tuesday 19 July 2016 at the pre-start meeting Mr Collins read the OCE report to all Maintenance crew members (OCE Report) and advised that:
(i) driving in the Pit would be restricted to 'authorised personnel only' due to continued wet weather conditions;
(ii) if employees were unsure about entering an area, they were to make contact with the OCE/Supervisor prior to entering the area;
(iii) all personnel were required to drive to conditions, which included driving in 4WD at all times and at a maximum speed of 40kmp/h;
(d) At approximately 4:15am on Wednesday 20 July 2016 Mr Hill drove light vehicle SG333from the workshop to the maintenance laydown area via Creek Pit Road;
(e) Mr Hill was not instructed by his Supervisor/OCE to perform work in the maintenance laydown area;
(f) Upon entering the Pit Mr Hill passed the restricted access sign, without seeking permission or authorisation from the OCE on shift;
(g) When he attempted to turn right into the maintenance laydown area halfway down Creek Pit Road Mr Hill lost control of the vehicle and it slid left making heavy contact with a bund; and
(h) The speed at which Mr Hill was travelling was such that the force of the impact resulted in the wheel assembly being wedged horizontally under the body of the vehicle (causing approximately $25,000 damage to the vehicle).
22. Having considered the above facts, Mr Moran and I concluded that Mr Hill had entered a 'no go' zone without permission to do so, which was a breach of Cardinal Rule 3 of PA-SAH-PLY-0002 Policy for Cardinal Rules (Cardinal Rules).” 32
[67] The Respondent submitted that, on the basis of these findings, the Applicant had entered a “no go zone” without permission, which was in breach of Cardinal Rule 3 of PA-SAH-PLU-0002 Policy for Cardinal Rules.
[68] The Respondent submitted that in light of the Applicant’s substantiated conduct, the high potential for injury and the Applicant’s history of non-compliance with policies and procedures, the Respondent commenced a Show Cause process with the Applicant.
[69] On 5 August 2016, the Respondent submitted that the Applicant was sent a Show Cause letter that advised him of the findings of the investigation and provided him with an opportunity to respond to the allegation that he had entered a “no go zone”, which constituted a breach of Cardinal Rule 3.
[70] The Respondent submitted that, upon considering the Applicant’s response of 12 August 2016, it agreed with the Applicant that the restricted area was not a “no go zone” and subsequently, there was no breach of the Cardinal Rules Policy. However, the Respondent stated that it was satisfied that a valid reason for termination still existed and the mitigating circumstances did not justify a lower form of disciplinary action being taken. Mr Malcolm provided in his statement that the Applicant’s response letter did not dissuade him from terminating the Applicant’s employment as: the Applicant was aware that the pit had been a “restricted access area” and the Applicant had entered the area without seeking approval from the OCE on shift; he had breached the Coppabella Mine Standard Operating Procedure for Checking and Examining Work Areas; and that he accepted the Statement of Mr Craig Collins, the Maintenance Supervisor 33. Mr Collins stated that on 19 July 2016, at the pre-start meeting, he had advised all crew members, in accordance with the OCE Report, that driving in the pit would be restricted to “authorised personnel only” and that if employees were unsure about entering an area, to make contact with the OCE/Supervisor prior to entering the area; and that any personnel, with authorisation to enter the pit, were required to drive to conditions, including a maximum speed of 40kms per hour. 34
[71] The Respondent submitted that it considered that the Applicant entered “restricted access area” without authorisation which was a breach of clause 3.7 of the Coppabella Mine Standard Operating Procedure for Checking and Examining Work Areas; and the damage caused to the vehicle could not have occurred to the degree it did if the Applicant was driving to conditions. Mr Malcolm in his Statement stated that, based on his experience in the role of Engineering and Maintenance Manager that, he determined “on the balance of probabilities that such extensive damage to the vehicle could not have occurred if Mr Hill was driving to conditions” 35. That is, a maximum of 40 kms per hour (or lower speed if conditions warranted it) in accordance with the OCE Report. The Respondent submitted that the Applicant’s conduct in relation to the three Final Warnings issued, demonstrated a repeated failure to observe safety procedures at the mine; and the Applicant had been warned that any further breach of policy would result in disciplinary action being taken, including dismissal.
[72] The Respondent submitted that it determined that the Applicant’s conduct was sufficiently serious to warrant summary termination of his employment. Accordingly, the Applicant’s employment was terminated on 22 August 2016, on the grounds that the Applicant engaged in a very serious breach of the mine’s safety procedures. The Respondent submitted that this conduct amounted to serious misconduct under clause 4.5 of the Peabody Energy Counselling and Discipline Procedure. Further, that it was not required to pay the Applicant in lieu of his notice period, and initially did not, however, following the Conference held in this matter, the Respondent elected to pay the Applicant three weeks’ pay. The Respondent also submitted that the Applicant’s dismissal ought to be treated as a dismissal with notice.
[73] The Respondent submitted that the Commission is required to consider the factors set out at s.387 of the Act.
[74] The Respondent submitted that the Applicant was dismissed for a serious failure to comply with the Work Area Policy and that it is well established in case law that a safety breach in and of itself constitutes a valid reason for termination of employment. The Respondent cited a number of authorities in support of this principle, an example being Travis Northey v Bradken Resources Pty Ltd 36, where an employee was terminated for serious misconduct when he drove through a signed exclusion zone and Dang v PPG Industries Australia Pty Ltd t/a PPG Architectural Coatings37, where the employer was found to have a valid reason for dismissal when the employee knowingly entered a restricted area in a manufacturing facility and there was a risk that the employee could have suffered significant injury.
[75] The Respondent submitted that, taking into consideration the relevant principles from the cited case law, the Applicant’s conduct was serious enough to justify dismissal, for the following reasons: the allegation against the Applicant for a breach of a key safety procedure, Clause 3.7 of the Work Area Policy, the Applicant was aware of the requirement to call the OCE prior to entering a restricted area and received training in respect of this requirement; the Applicant was aware (or ought to have been aware) that the pit was a restricted area, as he had been advised of this at that pre-start meeting on 19 July 2016 and that driving in the pit would be restricted to “authorised personnel only” due to continued wet conditions. Further, if employees were unsure about entering an area, they were to make contact with the OCE/Supervisor prior to entering the area and any personnel were required to drive to conditions at a maximum speed of 40kms per hour. Accordingly, the Respondent disagreed with the Applicant’s submission that he did not breach safety procedures.
[76] In addition, the Respondent submitted that traffic cones were in place and visible around the pit and visible at the entry point. Mr Malcolm stated in his Statement that he did not accept the Applicant’s submission regarding the absence of traffic cones nor the poor visibility or the restricted access sign and that a photograph immediately after the incident occurred, demonstrated that the traffic cones were in place and the restricted area sign visible 38. Despite this, the Applicant entered the pit (either carelessly or recklessly) without seeking approval from the OCE.
[77] Further, the Applicant did not deny that he knew that the pit was a restricted area due to weather conditions for the week prior to the incident, that he was in attendance at the pre-start meeting, and that he was in a restricted area when the incident occurred and did not seek authorisation from the OCE on shift to enter the restricted area.
[78] The Respondent submitted that the damage to the vehicle was significant. Mr Malcolm stated in his Statement noted that the damage to the vehicle totalled $25,000 39. Mr Malcolm stated that the speed at which the Applicant was travelling was such that the force of the impact resulted in the wheel assembly being wedged horizontally under the body of the vehicle40. The Respondent submitted that the severity of the damage to the light vehicle made it apparent to the Respondent that the Applicant was not driving to conditions at the time of the incident.
[79] However, the Respondent conceded that the light vehicle did not have a GPS speed recording system installed, and the Respondent was not able to meaningfully analyse the tyre marks or accurately re-enact the incident due to the severe weather conditions 41.
[80] The Respondent submitted that the Applicant’s poor safety and performance history, including the three Final Warnings the Applicant had received during his employment, was taken into account in the decision to dismiss the Applicant. Different weight was given to the Final Warning issued in April 2016, versus the prior warnings. The Respondent also submitted that the Final Warnings were not the sole basis on which the Applicant’s employment was terminated. Further, that it was the Respondent’s practice that Final Warnings remained active for 2 years. In addition, the Respondent was entitled to rely on the Final Warning issued on 26 April 2016 in relation to 11 speeding occurrences, as the Final Warning was issued for a serious breach of the Mine Traffic Rules. At the time of the incident, the Final Warning was active and the Applicant was warned in writing that any further breaches of policy would result in disciplinary action being taken, up to and including dismissal. Mr Malcolm stated that a number of notification emails sent from the GPS speed monitoring system to dispatch, identified the average speed travelled between two destination points on site, and that the Applicant was recorded as travelling at an average speed of 69kms per hour or 70 kms per hour. In addition, the “Peak Speed Report” showed that the Applicant was travelling at up to 75 kms per hour, which was 15kms per hour in excess of the 60km per hour permitted speed limit 42.
[81] The Respondent submitted that it had discharged its “practical onus” to establish the misconduct occurred as alleged.
[82] The Respondent submitted that the Applicant was notified of the reason for his dismissal by the termination letter dated 22 August 2016. The reason was (among those discussed at length in relation to section 387(a) above) “entering a Restricted Area without authorisation”. In addition, the Respondent submitted that the Applicant was aware of this policy requirement, as he relied on it in order to establish that he had not breached Cardinal Rule 3. Given the Applicant’s admission in his response letter that he had in fact been in a restricted access area, rather than a “no go zone” without authorisation, it was apparent the Applicant was aware what the serious breach of site safety procedure was.
[83] The Respondent disagreed with the Applicant’s contention that he was not provided with an opportunity to respond. Rather, that it invited the Applicant to respond to the allegations of misconduct in the Show Cause letter, and he was made aware of the precise nature of the Respondent’s concern about the Applicant’s conduct. Further, the Applicant was able to respond to all findings relevant as to whether a breach of the Work Area Policy had occurred. The Applicant did not suffer any detriment regarding the failure to re-particularise the allegation as a breach of the Work Area Policy. No investigation report was provided to the Applicant, as no report was prepared by the Respondent for the reasons submitted.
[84] The Respondent submitted that it did not refuse the Applicant a support person and that this matter is not in dispute.
[85] The Respondent conceded it is a relatively large employer and that it had a dedicated human resources staff that provided specialist advice throughout the termination of the Applicant’s employment.
[86] The Respondent submitted that safety is a paramount consideration at the mine and the Respondent had strict legislative obligations. In addition, there was no operational need for the Applicant to be in the pit. The Applicant had a prior history of safety issues and was warned about this conduct. The Respondent submitted that any procedural deficiencies with the Applicant’s dismissal process would be overcome by the fact that the conduct was sufficiently serious.
[87] Finally, the Respondent submitted that it had regard to the Applicant’s personal circumstances and that if his employment was terminated, that it might cause him significant hardship, and that he may struggle to gain other employment. However, his conduct was sufficient to amount to serious misconduct under the Respondent’s Discipline Policy.
[88] The Applicant has applied under s.394 of the Act, alleging that the termination of his employment from the Respondent was harsh, unjust or unreasonable. The relevant considerations in respect of this provision are set out under s.387 of the Act.
[89] This consideration requires the Commission to determine whether the alleged conduct occurred, and whether the conduct and related matters provided a valid reason for the dismissal.
[90] The Respondent submitted that the Applicant was dismissed for breaching the Respondent’s safety procedure and Work Area Policy. It was submitted that there was a relevant requirement to contact the OCE prior to entering a designated “restricted access area”. The Applicant was aware of this obligation (set out again on the morning of the incident at the pre-start meeting). He was aware that the pit was a “restricted access area”.
[91] Submissions were made on whether the area was, in fact a “no go zone” or a “restricted access area”. In the Respondent’s Show Cause letter, it was initially indicated by the Respondent that the area was a “no go zone”, and therefore attracted more onerous reporting requirements, resulting in a Breach of Cardinal Rules if an accident occurred. The Respondent however, stated in the termination letter that the area was, in fact a “restricted access area”. It was conceded, by the Applicant under cross-examination that he knew the area was restricted and that he entered the area regardless. It is recognised, however that the Applicant was asked to respond to the circumstances, on an incorrect premise.
[92] It was submitted by the Applicant that a number of mitigating factors should be taken into account in relation to this incident. Predominately, it was submitted that there was significant work being performed in the area previously, and the Applicant stated he had been advised to clean up the area. The Applicant, on his own initiative, sought to continue with that work. The Applicant stated (in contrast to the Respondent’s finding) that he was driving appropriately to the conditions. Given the very wet conditions, there were significant safety considerations, including the requirement to obtain approval from the OCE, which the Applicant was, or should have been aware of prior to entering the pit. It is considered that safety is of paramount importance in a hazardous work environment (such as a mine site), and that there is a strict and onerous obligation placed on workers to observe signage and any appropriately notified policies or directions in relation to safety and the specific state of the site. The mitigating factors raised have been taken into account.
[93] At the Hearing on 16 February 2017, the Applicant’s representative submitted that:
“Mr Hill was terminated ostensibly for his conduct which is said to have occurred in the early hours of the morning on 20 April 2016, but what also loomed as very important matters in the consideration by the employer at that time were prior incidents in respect of which Mr Hill had received warnings. As to the importance of those prior incidents to the decision making process of the employer we note that the decision maker, Mr Malcolm, in his evidence, said that the overall conduct of the applicant, being the conduct on 20 July plus the earlier conduct, was said to demonstrate a repeated failure to observe safety procedures. That characterisation by Mr Malcolm is elevated further in the respondent's submissions at paragraphs 2.20 and 2.21. There's a reference to particularly, what's called the prestart warning and the speeding warning, and there is said to have been demonstrated by the applicant an extensive history of safety breaches. That might be regarded as rather hyperbolic but it demonstrates the importance which is placed by the respondent, we say, on those prior incidents as part of the overall matrix which led to the decision to dismiss.” 43
[94] Accordingly, it was submitted by the Applicant that these prior warnings were an “aggregate issue” and form part of the Respondent’s reasons to dismiss the Applicant. 44
[95] In regards to the first warning, that the Applicant was asleep in his vehicle, it is not contested that this occurred, however it was submitted that the Applicant had a reason for being asleep as a result of occurrences in his personal life and that these were relevant mitigating factors. The Applicant submitted that, regardless, this warning was of lesser importance to the decision to dismiss the Applicant than the following two warnings. The Respondent’s representative maintained that it was a serious safety issue and should be taken into account.
[96] The second warning related to an incident where it was alleged that the Applicant was reading a magazine and rolling a cigarette, rather than listening to the information at a prestart meeting. The Applicant denied that he wasn’t listening, however conceded that, on the submissions of the Applicant’s representative, “he may have been, at one stage, looking at a magazine.” 45 The Respondent’s representative submitted that the prestart meetings were of critical importance to safety and that this incident was regarded as a very serious matter.
[97] The third warning, concerned an allegation that the Applicant was driving above the speed limit. Whilst the speed limit at the mine is 60km per hour, it was conceded by Mr Franklin under cross-examination, that the Respondent would only be notified automatically of speed violations if a vehicle’s speed exceeded 70km per hour. It was suggested by the Applicant’s representative that this was because of technical limitations; that there was a 10km per hour margin of error. The Respondent’s representative noted this allowance existed to prevent minor speed infractions from being automatically reported, and that the Applicant had exceeded the speed limit by up to 14km per hour at times. The Respondent’s representative rejected the suggestion that the system was unreliable.
[98] It is accepted that the prior warnings, referred to in the termination letter, form part of the reasons for the dismissal. In regards to the first and second warnings, it is not seriously in dispute that these two incidents occurred. Whilst the mitigating factors as submitted by the Applicant, have been taken into account; on the Applicant’s own submissions, the factual basis of these warnings has been satisfied.
[99] In relation to the third warning, the evidence of the Respondent was that the Applicant did at times exceed the 60km per hour speed limit. The speed limit was, at all material times, 60km per hour and the 70km per hour threshold effectively existed to eliminate the possibilities of false positive reports and minor speeding infractions. It was submitted that on the system used, when a report is generated, the 60km per hour speed limit would have been exceeded. However, the documentation provided at the Hearing was not put before the Applicant prior to his termination, to allow for his response.
[100] The final incident is significantly serious on its own. When it is considered against the prior conduct (taking into account mitigating factors), there is a valid reason for dismissal.
[101] The Applicant was notified of the reasons for the dismissal, however, it is recognised that the allegation put to the Applicant in the Show Cause letter, is based on entering the “no go zone” rather than it being based on a “restricted access area”.
[102] The Respondent conceded the error, but provided that it was not necessary to again particularise the allegation as the Applicant had provided his response letter, on the basis of the “restricted access area” circumstances. The Applicant however submitted he had not been initially notified of the correct Show Cause reason. This was a procedural flaw.
[103] At the Hearing on 16 February 2017, the Applicant’s representative submitted in their final submissions that:
“[The previous warnings] formed part of the aggregate of conduct which is said to be a repeated history of safety breaches, and, in my submission, fairness required that if those things were going to be held against him in the final account, he ought to have been allowed a further opportunity to put matters before Mr Malcolm. Of course, he may well have put before Mr Malcolm that letter from his supervisor, which is AH5, which was the glowing reference. He may well have determined to what extent Mr Malcolm was aware of, and had taken account of, the explanation of the prestart incident that appears in AH4, but because those matters weren't raised in the show cause he wasn't alerted to a need to address those, either individually or as part of an allegation of repeated safety breaches.”
[104] It is noted that the Show Cause letter refers to the Applicant being subject to a final written warning. The prior written warning was referenced in the Show Cause letter, as being the third final written warning issued to him since June 2014. It is accepted that the Applicant was aware of these warnings.
[105] The Respondent was entitled to rely on the prior warnings and to consider such as part of the reason for dismissal. The Applicant was aware that the Respondent was taking the prior warnings into account given the reference to them in the Show Cause letter. Whilst the Applicant may consider these were not set out in a sufficient manner, the Applicant was aware of the circumstances of this prior discipline and was not restricted from referring to them.
[106] The Respondent had notified the Applicant adequately of the reasons for the disciplinary action at the time it was implemented, and then further, he was notified of the reasons for dismissal.
[107] The Applicant submitted he was not clearly provided with an opportunity to provide his response given the flaws in the Show Cause and response letter. It was submitted by the Applicant he was not given an opportunity to respond to the re-characterisation of the misconduct, the breach of “site safety procedures” and that the final reason for termination was not given until the employment relationship had ended.
[108] Based on the documentation and the evidence, the Applicant had been made aware of the nature of all the conduct related to the Show Cause process.
[109] It is conceded that there had been a revision of the context of the final incident in the termination letter, from what was provided in the initial Show Cause letter. The Applicant and the Respondent agreed that the area was not a “no go zone”, and therefore did not constitute a breach of the Cardinal Rules. It was submitted that the Applicant was not able to respond to the incident, as it then relied on as a serious breach of site safety procedures.
[110] Further, the Applicant raised, as an aggravating factor, that the speeding incident of 20 April 2016 was the only prior warning that the Respondent had relied upon in conjunction with the final incident.
[111] The Applicant raised this as a deficiency in the process, stating the Applicant was not given a clear opportunity to properly respond to the reasons related to the conduct, including the prior warnings and the final incident, which the Respondent has relied upon as forming a valid reason. Fairness in the circumstances required the Applicant to be clearly made aware of and to have an opportunity to respond to the incidents forming the aggregate conduct, relied on as forming the basis for the Applicant’s dismissal. The Show Cause correspondence makes reference to the final warnings, the Applicant had been notified of each of these and the dismissal has been considered on the basis of the full responses of the Applicant to these warnings. The Applicant was presented with the opportunity to appropriately respond to the matters relevant to the dismissal.
[112] The Applicant at each stage was afforded the right to a support person.
[113] The Applicant had been warned the conduct, in connection with the final incident (considered with prior issues) was the reason given for the dismissal. The prior warnings issued to the Applicant, were relied upon by the Respondent. These issues of conduct (and the mitigating factors) were taken into account. The factors and the full responses of the Applicant to the issues with the prior warnings and additional material regarding the supervisor’s positive report of his performance, have been taken into consideration.
[114] In assessing ss.387(f) and (g), the Respondent is a significant organisation with a dedicated human resource staff and access to expert industrial relations advice. In this context, the Applicant was critical of not being provided with a clear opportunity to respond to the exact reasons and circumstances, the dismissal was based on. The Applicant critiqued the absence of evidence, the Respondent could rely upon to determine the Applicant was not driving to conditions and speeding at the time of the final incident. The Applicant also questioned the Respondent’s reliance on the three warnings, particularly, the 2014 warnings. He disputed the grounds of the final warning and he was of the view, he ought to have only been given a verbal warning, as another employee he cited had been. The Applicant also objected to the manner in which the investigation and dismissal process was conducted by the Respondent. Further, that the conduct was not ‘serious misconduct’ within the meaning of the Act, as it was not wilful or deliberate.
[115] The Applicant contended that even if the Commission was of the view that the conduct was commensurate with a valid reason, when the deficiencies in the process are considered, the Applicant’s dismissal, when reviewed against the Applicant’s lengthy satisfactory employment history and his most recent performance review, it must be considered harsh, unjust or unreasonable. The size and sophistication of the Respondent’s resources have been taken into account, in relation to the dismissal process.
[116] The Applicant’s conduct in the final incident when taking into account the Respondent’s legislative safety obligations, the direction given to employees in relation to the hazardous conditions and the environment of the mine site, negates any of the procedural deficiencies with the termination process. The seriousness of the conduct outweighs any procedural deficiencies.
[117] The Applicant has made submissions that the Respondent failed to follow its own procedure, with respect to not undertaking an ICAM report in relation to the incident. If the incident had been a breach of the Respondent’s Cardinal Rules, as originally stated in the Show Cause letter, it would have been necessary for an ICAM investigation to have occurred at the relevant time. However, on the evidence of the Respondent, it had not occurred. It was only in the Termination Letter that the Respondent revised its claim and alleged that a breach of the Safety Work Area Policy occurred, and that an ICAM report would not be necessary. However, the Applicant was aware of the specific facts of the incident and those did not alter.
[118] At the Hearing on 16 February 207, the Respondent’s representative submitted that:
“If you read the procedure literally, particularly the cardinal rule procedure, and that was the state of mind of the employer at the time, then… under that procedure, they probably should've done an ICAM. Mr Malcolm's evidence was that the procedure is applied with some flexibility, and probably that's both correct and appropriate, but the letter of the cardinal rule procedure says an ICAM should've been completed. Perhaps they should have, but as it turned out fortuitously that issue did resolve itself because it wasn't a cardinal breach and eventually was not treated as such.” 46
[119] At the time the Show Cause letter was issued the Respondent considered that there had been a breach of a Cardinal Rule. It was conceded by Mr Malcolm that by failing to complete an ICAM report at the time when the Respondent believed there had been a breach of a Cardinal Rule, the Respondent confirmed that there had not been such a breach and the dismissal was considered on this basis.
[120] In considering all of the matters relevant to the incident, the instructions to the Applicant were clear regarding the closure of the pit and the limitation on vehicle access due to the dangerous conditions caused by the heavy rainfall, and the restricted access sign was erected. The Open Cut Examiner (OCE) had sent an email to all department managers advising them that the Coppabella pit was under restricted access from the workshop into the pit.
[121] This direction had been reinforced by further communication of this by the shift supervisor Mr Collins on Tuesday, 19 July at 6:00pm when he read the OCE’s report to all maintenance crew members at the pre-start meeting. The Applicant was in attendance at this meeting and the report was read out. The report gave reference to the continued weather conditions and advised that drivers in the pit would be restricted to authorised personnel only, and that if an employee was uncertain about entering this area they were to make contact with the OCE/supervisor prior to entering the area.
[122] In direct contrast to this instruction at 4:15am on Wednesday 20 July, the Applicant drove a light vehicle from the workshop to the maintenance laydown area by Creek Road. In doing so, the Applicant passed the restricted access sign. Radio recordings confirm that the Applicant did not check or seek permission with this shift supervisor prior to entering the pit.
[123] The evidence indicates that halfway down Creek Road on attempting to turn right into the maintenance laydown area, the Applicant lost control of the vehicle in the wet conditions and it slid left into the bund. The Respondent contends that the speed at which the Applicant was travelling was such that the force of the impact resulted in the wheel assembly being wedged horizontally under the body of the vehicle, causing approximately $25,000 damage to the vehicle. The Applicant contended that the lack of mud flaps and the muddy windscreen contributed to the accident. The Applicant’s responsibility was to take these matters into account in deciding to drive in the conditions.
[124] The Respondent sought a response from the Applicant regarding the incident that they had characterised as very serious, as was evidenced by the extensive damage to the vehicle, the potential for injury and that the safety implications for the Applicant and other employees was significant. The Respondent considered the Applicant’s response did not excuse or explain the conduct.
[125] The Respondent conceded that the allegation originally put to the Applicant was that he had entered a “no go zone” constituting a breach of Cardinal Rule 3. The Respondent, prior to the termination, later clearly recognised and reconciled this allegation that the area was a “restricted access area” and not a “no go zone” and therefore did not result in a breach of Cardinal Rule 3. In addition, the Respondent recognised that had the incident been treated as a breach of Cardinal Rule 3, an associated investigation may have occurred at that time. The Respondent did not however consider that the seriousness of the Applicant’s conduct was ameliorated by these matters. The Applicant’s response, dealt with the actual circumstances of the restricted zone, and the Respondent considered the facts, on this basis. If the Show Cause process had been repeated this would only have possibly added one week to the employment. The Respondent voluntarily paid 4 weeks wages in lieu of notice.
[126] The final incident the Applicant was involved in was considered against the aggregate of the disciplinary warnings, that the Applicant had received. As stated, at the time of this vehicle incident, he had been the subject of a final written warning for an incident that occurred on 20 April 2016. The Applicant’s representative, took issue with the subject of this final warning, as it related to violation of the site traffic rules by exceeding the site speed limit by up to 15 km/h. The Applicant’s representative critically examined the evidence of the speeding violations. The documentation did not clearly confirm that the Applicant had gone above the permissible site speed limit taking into account the allowable buffer built into the tracking system.
[127] However, the Respondent emphasised to the Applicant at the time the final written warning was provided, that this was the third final written warning that had been issued to him, since June 2014. In addition, it had been made clear to the Applicant that a further breach will result in disciplinary action up to and including termination of employment.
[128] The Respondent conveyed that the Applicant was considered to be an experienced tradesman with a clear understanding of the required standards of Peabody Energy, and that the conduct demonstrated a disregard for the Peabody site safety standards. The correspondence to the Applicant set out that the damage to the vehicle and that the actions of the Applicant had the potential to place the Applicant’s safety, and that of fellow workers, at an unacceptable level of risk. This is accepted.
[129] Based on the evidence, the Applicant had made different submissions as to explanations for the final driving incident. The Respondent argued that the Applicant had given evidence at the Hearing that road conditions had deteriorated due to grader activities, where no assertion to that fact, had been made previously, either in the initial response or in earlier submissions. The Respondent considered this to be a recent invention of the Applicant to “get himself out of a difficult bit of cross-examination 47” and to combat their contention that the Applicant was aware of the current road conditions, and that they were not as poor as the Applicant had reported48 Further, Mr Williams argued at the Hearing that the Applicant was attempting to deflect from his original contention, that the road conditions were poor, while from his own admission he had been able to traverse the same distance safely only hours earlier.
[130] The Respondent further provided that the Applicant’s allegation that the signs and traffic cones had been removed, was challenged by the evidence of the other witnesses. The Respondent emphasised that the Applicant’s altered explanations for the incident, constituted a breach of trust and confidence. Weight has been attributed to this submission; in the circumstances of the workplace, the directions given, and the compliance required of employees.
[131] In considering the Applicant’s overall conduct, the Respondent stated that the Applicant had engaged in conduct that demonstrated a failure to abide by the correct safety standards, and that he had engaged in an on-going pattern of behaviour that provided a great concern to the Respondent, in terms of on-going employment, taking into account, the inherent dangers of a mine site. The conduct and the Applicant’s evidence at the Hearing undermined the trust and confidence in the Applicant.
[132] In considering the process undertaken by the Respondent, some procedural flaws existed. These flaws and matters raised as mitigating factors to the warnings have been considered. The Applicant had been requested to respond to, the allegations of the final incident and the classification of the incident as a breach of the Cardinal Rule. The Applicant correctly identified the nature of the incident and the Respondent conceded this error. The Applicant was not given a further opportunity to address the adjusted reference to the incident as was ultimately provided in the termination letter. However the Applicant’s response identified that the circumstances were not a “no go zone” and provided a response relevant to this. A further response was not required. The Applicant’s response and the Applicant’s material at the Hearing, did not significantly change from his Show Cause response. The Respondent agreed, prior to the consideration of the termination that the premise on which the allegations were originally put was incorrect and amended such on termination taking into account the Applicant’s response.
[133] These issues arising from the Applicant’s ability to properly respond and to consider the reasons being provided for his termination have been taken into account, and do not provide fatal procedural flaws that alter the substantive basis justifying the dismissal. The conduct of the Applicant was substantiated as a valid reason for dismissal. Accordingly, for the aforementioned reasons the Applicant’s dismissal was not harsh, unjust or unreasonable. The application filed pursuant to s.394 of the Act therefore must be dismissed.
[134] I Order accordingly.
COMMISSIONER
Appearances:
Mr B Reid of Counsel, instructed by Mr C Newman, Legal Officer of the CFMEU, for the Applicant
Mr D Williams, Partner of Minter Ellison, for the Respondent
1 Applicant’s Outline of Submissions at [63].
2 Witness Statement of Andrew Hill at Annexure “AH 12”.
3 Witness Statement of Andrew Hill at Annexure “AH 14”.
4 Witness Statement of Andrew Hill at [4] and Annexure “AH 14”.
5 Applicant’s Outline of Submissions at [30].
6 Witness Statement of Andrew Hill at [57].
7 Witness Statement of Andrew Hill at [50].
8 Witness Statement of Andrew Hill at [60].
9 Applicant’s Outline of Submissions at [66].
10 Applicant’s Outline of Submissions at [67]-[68].
11 Witness Statement of Andrew Hill [23].
12 Applicant’s Outline of Submissions at [53].
13 Witness Statement of Andrew Hill at Annexure “AH 12”.
14 Witness Statement of Andrew Hill at Annexure “AH 14”.
15 Applicant’s Outline of Submissions at [76].
16 Applicant’s Outline of Submissions at [76].
17 Applicant’s Outline of Submissions at [76]-[78].
18 Applicant’s Outline of Submissions at [77].
19 Witness Statement of Andrew Hill at [75].
20 [1997] AIRC 8.
21 Applicant’s Outline of Submissions at [79].
22 Applicant’s Outline of Submissions at [81].
23 Applicant’s Outline of Submissions at [82].
24 Applicant’s Outline of Submissions at [83].
25 Applicant’s Outline of Submissions at [84].
26 Applicant’s Outline of Submissions at [85].
28 Ibid at [129].
30 Ibid at [132]; Applicant’s Outline of Submissions at [87].
31 Ibid at [137]; Applicant’s Outline of Submissions at [88].
32 Statement of Mr Malcolm at [21].
33 Statement of Mr Malcolm at [31].
34 Statement of Mr Malcolm at [31]; Statement of Mr Collins at [6]-[7].
35 Statement of Mr Malcolm at [33].
38 Statement of Mr Malcolm at [33].
39 Statement of Mr Andrew Malcolm at [21].
40 Statement of Mr Andrew Malcolm at [21].
41 Statement of Mr Craig Collins at [21]-[22].
42 Statement of Mr Andrew Malcolm at [13]
43 Transcript dated 16 February 2017 at PN29.
44 Transcript dated 16 February 2017 PN40.
45 Transcript dated 16 February 2017 PN85.
46 Transcript dated 16 February 2017 PN413.
47 Transcript dated 16 February 2017 at PN424.
48 Outline of Respondent’s final submissions dated 14 February 2017 at 2.11
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