DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Doug Drowley
v
RTL Mining and Earthworks Pty Ltd
(U2020/13338)

Application for an unfair dismissal remedy.

[1] Mr Douglas Drowley (Applicant) has made an application to the Fair Work Commission for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Drowley was employed by RTL Mining and Earthworks Pty Ltd (Respondent) at the Yallourn open cut mine in the La Trobe Valley. At the time of his dismissal on 18 September 2020 he was classified as a “Fire Service Level 5” working primarily as a fitter involved in maintaining Bower sprays and shifter heads, lathing in the workshop and assisting with belt shifts and extensions. He commenced employment with the Respondent on 8 January 2018.

[2] The Applicant was represented by Mr Boncardo of Counsel and the Respondent by Mr Pollock of Counsel. Both were granted permission by me pursuant to s.596 of the FW Act.

[3] There was no dispute and I therefore find that the Applicant is protected from unfair dismissal, his dismissal was not a redundancy and the Respondent is not a small business. The application was also made within the statutory time limit provided by the FW Act.

[4] The matter to determine is if the dismissal of the Applicant was harsh, unjust or unreasonable.

BACKGROUND AND MATTERS LEADING TO DISMISSAL

[5] On 10 August 2020 the Applicant was directed to go to the FB03 Work Area to top up the freshwater tank on the mobile site van. To do this the Applicant used a light vehicle (a Landcruiser) with a water tank on the back of it.

[6] On arriving at the site van, the Applicant stopped the light vehicle, applied the handbrake (although this is in contention), got out of the vehicle and checked the site van to find the “fill” point for the fresh water. On finding the fill point the Applicant turned around to see the light vehicle he was driving rolling away. The vehicle rolled down the incline on which it was parked for approximately 20 metres before colliding with a stationary truck. No-one was injured in the incident with most workers in the crib hut on a break.

[7] The Applicant approached the vehicles. There was no damage evident so he moved the light vehicle, further inspected the vehicles and found no damage, drove the light vehicle back to the site van where he replenished the fresh water and drove the light vehicle back to the Fire Service workshop (about 6 kilometres). Just prior to leaving for or while driving back to the workshop the Applicant contacted his supervisor and advised him of the incident. Prior to leaving the scene the Applicant also spoke to the driver of the truck hit by the light vehicle.

[8] On 10 August 2020 the Applicant was interviewed in relation to the incident and subsequently stood down that day. A further interview was held with the Applicant on 18 August 2020.

[9] On 20 August 2020 the Applicant was sent a show cause letter.

[10] The letter indicated that the Applicant’s conduct had “fallen short of the Company’s reasonable expectations” of him with respect to safety such that disciplinary action was warranted.

[11] After citing earlier safety breaches, the letter advised that the Respondent sought to hear from the Applicant as to why his employment should not be terminated.

[12] On 21 August 2020 the CFMMEU lodged a grievance pursuant to the RTL Mining and Earthworks Pty Ltd/CFMMEU Yallourn Mine Enterprise Agreement 2018 (Agreement) in relation to the possible disciplinary action.

[13] On 27 August 2020 the Applicant met with the Respondent in relation to the show cause letter. The Applicant provided the Respondent with a written apology with respect to the incident.

[14] On 28 August 2020 the Respondent issued the Applicant with an amended show cause letter. The letter was in similar terms to that issued on 10 August 2020 with the substantive alteration being the deletion of the reference to an inspection of the light vehicle. The letter said, in part, that the Respondent had completed its investigation and found that on 10 August 2020 the Applicant:

•  Breached the Mine Traffic Management Procedure (Procedure); and

•  Breached the statutory requirements for Preserving an Incident Scene covered in Toolbox Topics (Toolbox).

[15] Specifically, it was put that the Applicant breached the Procedure and Toolbox by failing to:

•  park the vehicle in a fundamentally stable manner, noting the vehicle was parked facing down a slight slope (22:1 gradient), the engine was running, it was not in gear, wheel chocks were not used and the handbrake was applied but the Applicant made no attempt to verify it [the handbrake] was functioning correctly;

•  preserve the scene for an investigation to be conducted and instead moved the vehicle from the incident scene, conducted further work activities, and returned to the Fire Services workshop; and

•  immediately report the incident to his immediate Supervisor, noting that he continued to undertake work activities and reported the incident after he left the scene and was on his way back to the Fire Services workshop.

[16] The letter advised that the Respondent was considering terminating the Applicant’s employment “on the grounds of serious misconduct.” It invited the Applicant to a meeting on 2 September 2020 to provide any further relevant information to the Respondent prior to it making a decision.

[17] For reasons not agreed to by the parties, the Applicant did not attend the meeting on 2 September 2020. The CFMMEU did notify a dispute pursuant to the Agreement on 1 September 2020. That dispute was listed for conference on 14 October 2020.

[18] Following the incident on 10 August 2020 the Respondent commenced an incident cause analysis method (ICAM) investigation. It received the final ICAM report on 16 September 2020.

[19] The Respondent terminated the Applicant’s employment on 18 September 2020.

RTL PROCEDURE AND TOOLBOX

[20] The Mine Traffic Management Procedure (the Procedure) 1 defines the “standards for traffic management and ensure[s] the safe interaction of vehicles and mobile equipment at the Yallourn Mine Site.” The Procedure “has been developed with the objective of providing an environment where vehicles and mobile plant can be driven and operated free of incidents that result in injury to people or damage to plant and equipment.”

[21] The procedure, as is relevant to the matter before the Commission, provides for the following:

5.11 TRAFFIC INCIDENT REPORTING

•  The priority after an incident has occurred is to make the scene safe to prevent any further damage to people or property.

•  All employees are required to report all incidents, including those involved with the movement and interaction of all mobile equipment.

•  In the event of a serious incident every effort shall be made by those involved to preserve the incident scene – this allows for accurate investigation of the incident and all factors involved.

•  In the event of a minor incident – get evidence (i.e. take photos or make notes) and ensure the vehicle is safe to continue driving.

•  All operators are responsible for operating their equipment safely and correctly under all conditions. If an incident should occur, it must be reported immediately to the supervisor.

The reporting and investigation of all incidents, including injuries must occur in accordance with the Thiess Incident Notification, Recording, Investigation and Reporting (TCE-HSE- SP175) Procedure. In addition, the details must be recorded in the Thiess HSE Reporting System.

5.18 PARKING OF PLANT AND VEHICLES – GENERAL

•  …

•  Vehicle parking procedures are subject to change and all vehicles must adhere to instructions when updated.

•  Vehicles must be parked in a position that they can be driven away in a forward direction (reverse parking), wherever possible.

•  Vehicles must be parked in a ‘Fundamentally Stable’ manner. To achieve this, the vehicle must be:

•  In gear with the engine off, the park brake applied on flat, level ground away from a slope, or with wheel chocks applied where sloping ground exists;

•  In gear with the engine off, the park brake applied and the front or rear wheels in a ‘V’ drain; or

•  Reverse parked downhill against a rill or windrow with the park brake applied.

[22] Information provided to employees of the Respondent on preserving an incident scene was distributed via a Toolbox. 2 That documentation states that “[w]hen an incident occurs, it is extremely important to “preserve" the scene as much as possible. This applies to any incident regardless of its size or severity.”

WAS THE APPLICANT UNFAIRLY DISMISSED?

[23] In answering this question it is necessary to determine if the dismissal was harsh, unjust or unreasonable.

[24] Section 387 of the FW Act sets out those matters that must be considered in determining if a dismissal was harsh, unjust or unreasonable:

“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.”

[25] It is necessary that each factor in s.387 be considered 3 but it is a matter of discretion as to the weight given to any one factor.4

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

[26] For a reason for dismissal to be valid it must be “sound, defensible and well founded.” 5 “[T]he reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.”6

[27] The Respondent submits that the Applicant was dismissed because, in breach of Procedure and Toolbox, the Applicant:

•  parked the vehicle in an unstable position;

•  did not preserve the incident scene and

•  did not immediately report the incident.

Evidence of Applicant

Parked the vehicle in an unsafe manner

[28] The Applicant was directed on 10 August 2020 to fill the freshwater tank on the mobile site van. He borrowed the light vehicle from Mr Kilpin to do so. When he stopped at the caravan to check where the fill point was (he had not filled the caravan with water before, so was not aware of its location) he stopped the car but left the engine running and put on the handbrake. 7 He did not put the car in gear as this was not possible with the engine running and did not put wheel chocks in place. He also considered the area where he had stopped the light vehicle to be flat.8

[29] The Applicant agreed that he had parked the vehicle other than in a fundamentally stable manner “including by turning the engine off and putting it in gear.” 9 He recognised that he should have done so and his failure was an error on his part. He said the incident occurred because he was rushing.10

[30] The Applicant agreed that his memory of the incident would have been fresher the day of the incident rather than the day he finalised his witness statement filed in proceedings. He agreed that in his statement made on the day of the incident, 11 he did not mention that as he turned back to the vehicle from checking the fill point the light vehicle had begun to roll and that he ran after it.

[31] The Applicant agreed that someone could have been seriously injured or killed if they had been hit by the light vehicle as it rolled down the hill. 12

[32] The Applicant gave evidence that, on return to the workshop after the incident he attended a preliminary investigation meeting. Initial observations of the light vehicle included some damage to the bull bar on the vehicle and that “operating the handbrake lever indicated the handbrake was not working at all”. The Applicant agreed that he was not concentrating sufficiently when he pulled up at the caravan to notice that there was resistance on the handbrake but maintained that he did put it on. 13

Failure to preserve the scene

[33] Whilst acknowledging the requirement to preserve the scene of a serious incident the Applicant gave evidence that he considered the incident to be a minor incident and responded in line with the Procedure in this respect.

Failure to immediately report the incident

[34] The Applicant gave evidence that after the incident he completed the water fill. He went into the caravan to tell the driver of the truck about the incident and a short time after that called his supervisor, Jason Burton, to tell him what had happened. 14 He said that Mr Burton told him to bring the vehicle back to the workshop.

Other incidents

[35] The (amended) show cause letter of 28 August 2020 also raised two earlier incidents in which the Applicant was involved. These are an incident of 29 September 2017 when the Applicant reversed his vehicle into an electrical cubicle and one of 31 January 2020 when the Applicant was involved in an incident when operating a water spray for which he received a verbal warning.

(i) Electrical cubicle incident

[36] In his evidence the Applicant said that he hit the electrical cubicle with the rear of his vehicle causing “busbars” to hit the side of the cabinet. The Applicant agreed that when this incident occurred he was distracted by a hose laid the day before that he was attempting to avoid and that his view was obstructed by gas bottles and a compressor.

[37] The cubicle contained live electrical wires and the Applicant agreed that the incident involved a risk of serious injury.

[38] The Applicant said he and his co-worker wrote notes of the incident immediately afterwards while sitting in the car but he could not recall if he took any photos. 15

(ii) Water spray incident

[39] The Applicant said that he was instructed to operate the water sprays for fire prevention. He and his co-worker pulled up to spray on “line 1 level 3”. They noticed a lot of water on the conveyor side so decided to set the spray on a 180 degree arc. When this was complete, he got into the vehicle he was driving but “it would not go into gear”. Because of this the spray hit the vehicle on the driver’s side and broke a small window and the passenger side window. 16

[40] The Applicant agreed that he was aware his car was parked too close to the water jet. 17 He also agreed that the water jet was of a high enough pressure to “blow out the driver’s side window pane” and the passenger side window of the vehicle18 and that this occurred while he was sitting in the driver’s seat of the vehicle.

[41] The Applicant agreed that a year earlier all operators had been warned about operating sprayers too close to vehicles. 19

[42] The Applicant said that he did not turn the water spray off before getting into the vehicle because he had set it to spray at 180 degrees and thought he would have enough time to get in the car and take off. The car would not go into gear and he then started to panic as he saw the spray coming towards him. 20

Evidence of Kylie Brooks

[43] Ms Kylie Brooks is the Health and Safety Manager for the Respondent, Ms Brooks was aware of the incident of 10 August 2020 involving the Applicant. Ms Brooks received a copy of the Site Investigation Report of the incident and advised Mr Owen Cavanough (General Manager) and Mr Bernard Hyde (Site Manager) that she considered there was enough to warrant an ICAM Report.

[44] The resulting ICAM Report 21 identified that the cause of the incident was that the Applicant had failed to park the vehicle in a fundamentally stable position. Ms Brooks considered issues with the handbrake but said that if the vehicle had been parked in a fundamentally stable position it would not have rolled.

[45] Ms Brooks agreed that the Toolbox document does not distinguish between serious and minor incidents and that there is a lack of clarity between the requirements in the Procedure and the Toolbox. 22

Evidence of Charles Hyde

[46] Mr Charles Hyde is the Mine Manager for the Respondent.

[47] Mr Hyde agreed that there was no requirement in the Procedure for an employee who takes over a vehicle mid-shift to conduct a pre-start inspection. 23

[48] His evidence is that the vehicle involved in the incident subject to these proceedings was not required to have a pre-start inspection every day but one at the beginning of the shift rotation (i.e. every 3 or 4 days when there was a shift changeover). 24

[49] Mr Hyde said that the wording of the Procedure in relation to preserving an incident does not align with practice and messaging that any incident scene should be preserved. He also agreed that the Procedure does not define a serious incident.

[50] Mr Hyde said that he understood the incident which the Applicant was involved in to be a “reportable incident” in accordance with guidelines issued to the Respondent by WorkSafe in that all incidents that have “serious potential” need to be reported. The incident in which the Applicant was involved had been reported to WorkSafe.

Findings

[51] I am satisfied and find as follows in relation to the conduct of the Applicant.

[52] The Applicant did not park the light vehicle appropriately in a fundamentally stable manner in accordance with the Procedure. I am satisfied that the Applicant did apply the hand brake. Whilst the failure of the handbrake may have contributed to the incident, I am satisfied that had the Applicant parked appropriately, it is unlikely the incident would have occurred.

[53] The Applicant was fortunate there were no people in the vicinity but the presence of others should not be the determinative factor as to whether or not he parked appropriately and whether his conduct provided a valid reason for dismissal – safety standards are not a rule to be observed only in the presence of others.

[54] The Applicant failed to preserve the scene. It is apparent however that the Applicant considered the incident minor in nature such that the requirement was to record the incident, as opposed to preserving the scene. While it is not apparent that he immediately recorded the incident, I am not satisfied that he breached the Procedure. There is a conflict between the content of the Procedure and the Toolbox information. Whilst Mr Hyde said the Toolbox information on preserving the scene is policy this is not apparent and the formal Procedure clearly provides for different approaches depending on a subjective assessment (given it needs to be made by those involved in an incident on the spot) of the incident. Whilst it may be prudent for an employee to take an overly cautious approach at an incident, I am satisfied that the Applicant conducted himself as set out in the Procedure. A failing of the Procedure to be updated to reflect amended policy cannot be laid at the feet of the Applicant.

[55] I accept that the Applicant did tell others in the vicinity of the incident of its occurrence at the time it occurred.

[56] I accept that, following the incident, the Applicant filled the water tank and then advised his supervisor of the incident who told him to return to the workshop. In this respect I note that the evidence does not support a conclusion that his supervisor provided any instruction to “preserve the scene” or suggested that the Applicant should not return to the workshop or had otherwise not reported the matter correctly.

[57] In these circumstances I am unable to find that the Applicant did not report the incident although it would have been appropriate to have done so immediately and before filling the water tank on the site van.

[58] I am satisfied that the Applicant was involved in two other incidents – one in 2017 and the water spray incident in January 2020. The second of these incidents resulted in the Applicant receiving a written warning. The first incident was three years earlier and does not weigh heavily on my considerations. The second incident was much more recent and is a relevant matter to consider in deciding of the dismissal was harsh, unjust or unreasonable.

(a) Was there a valid reason for dismissal?

[59] In determining if the conduct provided a valid reason for dismissal I do not need to determine if the misconduct was serious misconduct. That is not the inquiry to be made in relation to s.387(a) of the FW Act. The matter to determine is if the conduct provided a valid reason for dismissal. Conduct does not have to be serious misconduct to provide a valid reason for dismissal.

[60] In determining if there was a valid reason for dismissal I have not considered if the Respondent was obliged to halt its process pending the determination of the dispute notified pursuant to the Agreement or otherwise if the procedures of the Respondent were contrary to the Agreement. This does not go to the question of a valid reason but rather is matter better considered under s.387(h) of the FW Act. It is dealt with below.

[61] I have carefully considered the failure of the Applicant to park the light vehicle in a fundamentally stable manner in accordance with the Procedure.

[62] The Applicant’s reliance on the hand brake to hold the vehicle in position was misplaced and perhaps provides a salutary lesson as to why a handbrake is not considered adequate to ensure a vehicle is parked in a fundamentally stable manner. The incident is also a lesson as to why there are no short cuts available when parking a vehicle, regardless of the length of time it is to be parked.

[63] The Applicant took the time to put on all of his safety gear before getting out of the vehicle. Why, when he could take the time to ensure his was wearing his safety gear, he could not ensure the vehicle was safely parked is unclear.

[64] The Applicant is fortunate that no-one was injured and there was not more damage to the vehicle in the incident. Being fortunate however does not absolve him of the seriousness of his conduct. In this case the Applicant’s conduct did not directly affect the safety or welfare of others but, as I said, this is a result of good luck and not because the Applicant took reasonable steps as required under the Procedure.

[65] I have noted the Applicant’s evidence that the incident occurred because he was rushing. There was no apparent reason for him to be rushed and filling the water tank could not be of such urgency that it could not be delayed another minute while he parked the light vehicle in a fundamentally stable manner whilst finding the fill point on the site van.

[66] In the circumstances I am satisfied that the Applicant was dismissed for a valid reason – that being that he failed to park a vehicle in a fundamentally stable manner contrary to the Procedure of the Respondent.

[67] In reaching my conclusion I have not taken into account the claim that the Applicant failed to preserve the scene or failed to report the incident, having found above that he acted in accordance with the Procedure and that he did notify his supervisor (who I note was not called to give evidence). I have also not taken into account that the Applicant did not inspect the vehicle after collecting it from Mr Kilpin. I have also not had regard to a further incident that was said to have occurred in the car park, not being convinced of its relevance in relation to a valid reason for dismissal.

[68] I am satisfied however that the failure to follow the Procedure in parking the light vehicle in a fundamentally stable manner in the circumstances of a mine site provides a sound, defensible and well founded basis, and hence a valid reason, on which to dismiss the Applicant.

(b) was the person advised of that reason

[69] I am satisfied that the Applicant was advised of the reason for dismissal. The basis of his stand down was communicated to him by the show cause letter and the amended show cause letter – both set out his breach of the Procedure in that he failed to park in a fundamentally stable manner.

(c) was the person given an opportunity to respond

[70] Mr Hyde met with the Applicant on 27 August 2020 following the issue of a show cause letter to the Applicant. The Applicant attended that meeting with his union representative. At that meeting the Applicant read out a statement 25 and put forward a case as to why his employment should not be terminated.

[71] Arising from that meeting a modified show cause letter was issued to the Applicant. The amendment to the letter is not such that the show cause letter changed in any material sense (the amendment having been to remove the reference to the incident being a notifiable incident under the relevant OHS Act and remove the reference to the requirement of the Applicant to have undertaken an inspection of the vehicle prior to operating it).

[72] Mr Hyde said a meeting was scheduled with the Applicant for 7 September 2020 at which he would have been able to respond to the amended show cause letter but this was postponed and ultimately not re-scheduled. 26

[73] Mr Owen Cavanough is the General Manager of the Respondent. Mr Cavanough commenced in that role on 17 August 2020 – after the Applicant had been stood down. He had never met the Applicant and formed his view of him on the basis of the information provided to him by Mr Hyde.

[74] Mr Cavanough said he met with Mr Hyde on 2 September 2020 to discuss the outcome of the meeting between the Respondent, the Applicant and the CFMMEU on 27 August 2020. He said that he and Mr Hyde discussed the Applicant’s past conduct and the warning he had received on 31 January 2020 in relation to the water spray. He said that Mr Hyde also told him of the electrical cubicle incident in 2017.

[75] Mr Cavanough said he received the ICAM Report around the 14-17 September 2020 and that he then sought to meet with the Applicant to discuss the matter but that “the opportunity was not allowed” 27 to him although said in evidence that he was “happy to stand corrected” on that.28 Mr Cavanough said that he understood the Applicant and the CFMMEU were not prepared to meet with the Respondent and that he received this information from Mr Hyde around 17 or 18 September 2020.29

[76] Mr Cavanough was the decision maker in relation to the decision to dismiss the Applicant from his employment. Mr Hyde recommended to Mr Cavanough that the Applicant’s employment be terminated based on the severity of the potential consequences of the incident. Mr Cavanough’s evidence is that he did not make the decision to dismiss the Applicant until he had seen the ICAM Report.

[77] Mr Cavanough said that he decided to dismiss the Applicant because:

(a) the basic cause of the incident was determined in the ICAM Report to be the vehicle not being parked in a “Fundamentally Stable” position which came about as a result of the Applicant’s breach of the Mine Traffic Procedure;

(b) the ICAM Report found that the incident was classified as a PC1 under the “Event Classification Guideline,” which is the most severe;

(c) his determination that the Applicant’s breach of the Mine Traffic Procedure was as a result of a fundamental lack of understanding of safety and not a genuine and one-off mistake;

(d) at no stage in the disciplinary process did the Applicant accept responsibility for the severity of his actions and the importance of complying with the “Fundamentally Stable” rules in the Mine Traffic Procedure;

(e) the Applicant’s attempts to try and shift responsibility for the Incident to Mr Kilpin. This showed that he did not fundamentally understand safety, including the paramount importance of parking a vehicle “Fundamentally Stable” at a mine site;

(f) he was informed by Bernie [Hyde] and checked with other supervisors at the Yallourn Mine that there was no other positions at the Yallourn Mine that the Applicant could undertake which did not require a fundamental understanding of safety, which he determined that the Applicant did not have;

(g) the Applicant had a history of safety breaches and “near misses” at the Yallourn Mine, particularly with motor vehicles;

(h) the Applicant had been adequately trained in the applicable policies;

(i) the Applicant failed to comply with the Preserving an Incident Scene Policy [Toolbox talk];

(j) the potential consequences of the Incident could have been fatal.

[78] In this case I am satisfied that the failure to hold a further show cause meeting following the issuing of the amended show cause letter did not affect the capacity of the Applicant to respond to the reason for dismissal. The Applicant does not suggest he was not given an opportunity to respond.

[79] Further, I am satisfied that Mr Cavanough did not make his decision to terminate the Applicant’s employment until such time as he had a report from Mr Hyde as to the meeting with the Applicant on 27 August 2020 and had received the final ICAM Report.

[80] In the circumstances I am satisfied that the Applicant was given an opportunity to respond and that opportunity was not illusory but was substantive.

(d) support person

[81] The Applicant was assisted in meetings with the Respondent by his union. I am therefore satisfied that he was not unreasonable denied access to a support person.

(e) whether the dismissal related to poor performance

[82] The Applicant was not dismissed for reasons associated with performance. It is therefore not necessary to consider this matter.

(f) the degree to which the size of the employer’s business would likely impact on the procedures followed in effecting the dismissal

(g) the degree to which the absence of dedicated human resource specialists in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[83] Nothing has been put which suggests the size of the business or access to human resource expertise had any effect on the dismissal.

(h) any other matters

[84] There are a range of matters it is necessary to consider prior to deciding if the dismissal was harsh, unjust or unreasonable.

Was the decision to dismiss the Applicant contrary to the requirements of the Agreement?

[85] The Applicant’s employment is covered by the RTL Mining and Earthworks Pty Ltd/CFMMEU Yallourn Mine Enterprise Agreement 2018. That Agreement contains a procedure for dealing with counselling and discipline and states, at clause 2.11:

•  RTL's Counselling and Discipline Procedure is a structured approach to handling employee discipline matters. It will be invoked in cases where unacceptable employee performance and/or conduct requires disciplinary action. Performance and conduct related matters shall be resolved by the application of RTL's Counselling and Discipline procedure outlined in the table below.

•  Employees have the right to involve a witness of their choice, which may include their Union representative, at any stage in the process. After a period of twelve (12) months an employee with a warning will have that warning commuted and if they have more than one warning they will be moved back one step in the process.

•  Where an employee invokes the grievance procedure the discipline process will be on hold until the grievance is resolved.

[86] The procedure then sets out various disciplinary outcomes: oral warning; first written warning, final written warning and dismissal. The clause goes on to provide an exception to the provisions of the clause:

This clause does not prevent summary dismissal on account of serious and wilful misconduct.

[87] The Applicant did invoke the grievance procedure while the Respondent submits that the Applicant engaged in “serious and wilful misconduct” such that it relies on the exception.

[88] It appears to be otherwise accepted that the cascading severity of penalties for misconduct set out in the Agreement should apply in order unless the exception is invoked as has occurred in this instance. Given this, if the exception was not invoked, the Applicant should have been given a first written warning (given the oral warning already issued from January 2020).

[89] Mr Hyde said that the Agreement “provides a road map” for dealing with disciplinary matters. He agreed that dismissal is only to occur after a final written warning except for summary dismissal and that warnings are to be commuted after 12 months.

[90] The Applicant submits that the use of the word “and” in “serious and wilful misconduct” indicates that “wilful” and “serious” operate conjunctively and hence both must be present for the exception to be invoked.

[91] Further, the Applicant submits that:

The meaning of the noun ‘misconduct’ was helpfully set out by Gamble J in WR Knott v Carlton & United Breweries (1958) 13 IIB 212: 30

The basic word, is of course, `misconduct'. The word is not apt to describe a breach of contract and is more appropriate to describe generally some reprehensible or culpable activity. However, it is quite clear on analysis that the word is used in the Act solely in relation to conduct which constitutes a breach of contract of service. It is clear therefore that the word is intended to describe a particular type of breach of contract, namely one which according to the current and generally accepted moral standards of the community would be regarded as reprehensible and deserving of censure in the circumstances.

Gamble J described the adjective ‘serious’ as follows: 31

The word `serious' is the measuring rod for the gravity of the misconduct. All the elements of the conduct called in question must be taken into account including the probable effect of the conduct upon the safety and well-being of the employer's business, his property and other employees, the fact that the conduct is in breach of a regulation, an award or determination and also the subjective elements such as the knowledge and skills which the worker ought reasonably to have possessed and the motivation and general state of the mind of the worker at the time.

Whether misconduct is serious therefore involves an objective characterisation of the misconduct. 32

Whether misconduct is wilful involves a wholly subjective test and focuses on the state of mind of the employee. 33 It connotes a ‘deliberate design or purpose to derogate from duty’.34 As Ambrose J explained in Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25:35

“Wilful” misconduct involves merely the doing of acts in fact amounting to misconduct intentionally, with knowledge that those acts will amount to misconduct.

[Footnotes in original]

[92] As to whether misconduct might be construed as wilful misconduct, the Applicant submits that it is necessary to show that the Applicant knew what he was doing was wrong and yet intentionally did that thing regardless of consequences. 36

[93] On an analysis of the authorities the Applicant submits that:

Properly construed, to fall within the exception to the procedure set out in clause 2.11, RTL must establish that Mr Drowley:

a. Engaged in misconduct, in the sense of some generally reprehensible or culpable activity that went beyond the mere breach of contract and justified termination of the contract of employment;

b. Such misconduct was, objectively assessed, serious;

c. The misconduct was engaged in wilfully, in the sense that Mr Drowley knew and appreciated that what he was doing or omitting to do was wrong, but proceeded to do it anyway. 37

[94] When all of the circumstances are considered the Applicant submits that he did not engage in serious and wilful misconduct such that the Respondent did not have grounds to summarily dismiss him. The exception in clause 2.11 therefore did not apply.

[95] The Applicant says that the Respondent also failed to abide by the requirements in clause 2.11 to apply the penalties set out therein in a cascading fashion. The only step that had been invoked in relation the Applicant’s conduct was an oral warning in relation to the water spray incident on 31 January 2020. On that basis and, taking into account the requirements of clause 2.11, the Applicant should have been issued with a first written warning.

[96] The Respondent submits that “serious and wilful” must be considered distributively and that to do otherwise will result in absurd outcomes. It submits, for example, that, on the Applicant’s construction of clause 2.11 an employee could engage in misconduct that results in serious injury or death to others but no action could be taken against them until such time as each of the disputes settling procedure is moved through the Commission, potentially exposing the Respondent to prosecution for failing to take reasonably practical steps to dismiss a negligent employee.

[97] The Respondent submits that, even if the phrase is conjunctive, as put by the Applicant, the Applicant did engage in conduct that was serious misconduct given that it caused serious and imminent risk to the health and safety of other employees – a matter conceded by the Applicant under cross examination 38 – and the conduct was also wilful in the requisite sense where “wilful” misconduct involves “merely the doing of acts in fact amounting to misconduct intentionally, with knowledge that those acts will amount to misconduct.”39 In this regard the Respondent submits that there is no submission that the Applicant accidently failed to park the light vehicle in a fundamentally stable manner.

[98] On the basis of the words used in the Agreement and giving them their ordinary meaning to meet the test of the exception, the misconduct of the Applicant must be wilful and it must be serious. Whilst I note the example leading to an absurd outcome put by the Respondent, this does not convince me that the phrase should be taken as being distributive. Had it been intended to be so the word “or” would be used, or perhaps “and/or”.

[99] I am not satisfied, on the basis of the evidence before me, that the Applicant set out to deliberately engage in misconduct. He was rushed (in his own words) and for that reason did not leave the vehicle in a fundamentally stable manner. Further, the evidence does not support that the Applicant had a deliberate and knowing disregard of the requirement to park in a fundamentally stable manner. Whilst his conduct was not acceptable, I accept that the Applicant did engage the handbrake in the car and the car did not move for the period he was putting on his safety gear. He considered the car to be parked safely (albeit it was not in mode prescribed by the Procedure). I do not consider that the Applicant set about to deliberately flout the Procedure. This is not to suggest that the Applicant was not aware of the Procedure but goes to his subjective intentions at the time he parked the light vehicle. Certainly the Applicant did not engage in the conduct knowing the light vehicle would roll away. I am therefore not satisfied that the misconduct of the Applicant was wilful. It follows, therefore, that it could not be serious and wilful misconduct.

[100] I do accept that, by parking the light vehicle in the manner he did, there were potentially serious consequences. It was fortunate that these did not eventuate with anyone being placed in immediate danger. In this matter the Applicant should be grateful. The actual consequence of the Applicant’s actions was some damage to the light vehicle and the truck it hit.

[101] Whilst the actions of the Applicant were wrong, I am not satisfied, on the evidence that he did park the light vehicle as he did regardless of the consequences. I am satisfied that, had the Applicant been aware of the faulty handbrake and, hence, been aware of the consequences of parking as he did, he would not have done so.

[102] The evidence before the Commission does not allow me to conclude the basis on which the Respondent determined the Applicant’s conduct to be “serious and wilful”, who made the assessment and how that fed into the decision to proceed with the termination of the Applicant’s employment when a dispute had been notified.

[103] The Respondent submits that, even if it is found to have failed to comply with the requirements of clause 2.11, it would not, in any event, render the dismissal unfair and that there are other actions open to the Applicant should he consider that the Respondent to be in breach of the Agreement.

[104] The CFMMEU did raise a dispute pursuant to the Agreement prior to the decision being made by Mr Cavanough to dismiss the Applicant. It is not apparent, on the evidence before me, why the Respondent chose to ignore the dispute so notified and continue down its chosen path. The evidence does not support a conclusion that Mr Cavanough was of the view that the conduct amounted to “serious and wilful misconduct” as used in clause 2.11 of the Agreement such that the exception might be invoked. The Respondent did not seek to have the dispute dealt with quickly such that it might argue that the Commission did not have jurisdiction to deal with the dispute.

[105] In these circumstances it cannot be known what the outcome of that process might have been. By its actions however, the Respondent, has denied the Applicant an opportunity to explore such outcomes.

Failure to undertake a pre-start check and differential treatment

[106] Ms Brooks gave evidence of a subsequent audit carried out arising from the ICAM Report on pre-start inspections in fire services (the section of the Respondent’s business in which the Applicant worked). That audit found that pre-start inspections of vehicles used by employees of the Respondent in the workshop had not been enforced by the supervisor and the regular driver of the light vehicle used by the Applicant that day (Mr Kilpin) had not recorded a pre-start inspection on the light vehicle used by the Applicant for a period of 5 months. Ms Brooks agreed that if Mr Kilpin had commenced the shift on 10 August 2020 it was his responsibility to complete a pre-start inspection. She further agreed that she was aware, based in the investigation report of the 10 August 2020 incident, that no pre-start inspection was undertaken. Also, based on the Investigation report, she was aware that Mr Kilpin was aware the handbrake was not functioning at 100%. 40 Ms Brooks agreed that if the handbrake on the light vehicle had been engaged when it as parked next to the caravan by the Applicant it should not have rolled.41

[107] Ms Brooks agreed that if a vehicle had a handbrake defect it is not to be operated until that defect is rectified. Further, she said it would be “serious failing” of an employee if, aware of such a defect, did not report it. 42

[108] Ms Brooks gave evidence that, as part of the investigation into the incident, Mr Kilpin provided a statement to that investigation in which he said:

•  he conducts pre-starts at least once a week;

•  he was aware the handbrake on the light vehicle was “not functioning 100%”;

•  he was not near the Applicant when he took the light vehicle so did not have an opportunity to let him know about the handbrake. 43

[109] The ICAM report found that Mr Kilpin had “not documented a pre-start inspection on [the light vehicle] since 06/03/20” and that he “was aware of the handbrake defect and did not report the defect”. 44

[110] Mr Hyde agreed that the failure of Mr Kilpin to tell the Applicant of the faulty handbrake was a serious matter 45 and that the failure of Mr Kilpin to document pre-start inspections for a period of over 5 months was a serious matter.46 Mr Hyde also agreed that the failure of Mr Burton, Mr Kilpin’s supervisor, to check that the pre-start inspections were being done and reports completed was a serious matter.

[111] Mr Hyde gave evidence that Mr Kilpin was given a first and final warning for a number of reasons including his failure to submit pre-start inspections reports, his failure, despite knowing of it, to have the faulty handbrake on the light vehicle repaired in a timely manner and his failure to advise the Applicant of the faulty handbrake. 47 Mr Burton was issued with a written warning over his failure to check that pre-start inspection reports were being completed.

[112] The Applicant’s evidence is that he spoke to Mr Kilpin and said he was taking the light vehicle to fill the water in the site van. Mr Kilpin said nothing to him of the state of the handbrake. 48 This evidence sits at odds with the statement Mr Kilpin made as part of the investigation in which Mr Kilpin said he did not have the opportunity to talk to the Applicant when he took the light vehicle.

[113] Mr Kilpin was not called to give evidence. I therefore accept the Applicant’s evidence that he did speak to Mr Kilpin when he took the light vehicle and that Mr Kilpin did not advise him of the fault with the handbrake. Had Mr Kilpin done so it is reasonable to assume that the Applicant would not have left the light vehicle parked as he did relying on the handbrake only. Regardless of whether Mr Kilpin did talk to the Applicant or not, that Mr Kilpin allowed another employee to take a vehicle that he knew to be unsafe is a serious matter.

[114] Mr Kilpin’s failing is of the most serious nature. A failure to complete a pre-start inspection report as required on any vehicle he was responsible for increases the risk for any other driver who might reasonably assume that that the inspection had been completed. Whilst Mr Kilpin apparently told the investigation team that if he found a problem he would take the vehicle to the workshop to have it repaired, this is not supported by his concurrent statement that he had known the handbrake was “not 100%” yet had done nothing to have it repaired”.

[115] In any worksite, but particularly a high risk work site, it is imperative that all employees have confidence that all other employees comply with safety requirements. This was not the case at this site. Mr Kilpin, too, is fortunate his lack of attention to safety has not resulted in injury at the site.

[116] On the evidence before me the conduct of Mr Kilpin is serious and Mr Cavanough described it as such.

[117] In this respect the outcome for the Applicant can be viewed as different to that of Mr Kilpin when both engaged in conduct that was an apparent breach of relevant procedures and where each had the potential to impact on the safety of others.

[118] The question is not the culpability of Mr Kilpin or Mr Burton in the actions or conduct of the Applicant but rather whether either of them engaged in conduct, if that conduct could be aligned to that of the Applicant in its seriousness and then, if such matters are generally equal, if the differential disciplinary outcomes could be justified.

[119] Whilst the Respondent considered the Applicant’s conduct serious misconduct and dismissed him without notice it found Mr Kilpin’s conduct “a serious safety breach of an important safety procedure” and that his actions placed himself and others “at significant risk” and issued him with a final written warning.

[120] Mr Cavanough gave evidence that his “review of the scorecard puts both Mr Kilpin and Mr Drowley in the level 17, 18 of our scorecard, which states termination.” 49 He did not, however, proceed down this path with Mr Kilpin as Mr Hyde had already issued the disciplinary letters which made it difficult for his to undermine Mr Hyde. Mr Cavanough said that “in every review I do of it, I keep coming back that it should be an upgrade for Mr Kilpin and that he should be terminated.”50

[121] With respect to Mr Burton I consider the differential outcome can be justified. His misconduct was of a different type to that of the Applicant and Mr Kilpin.

[122] With respect to Mr Kilpin I am not convinced that such justification can be found, a position seemingly accepted by Mr Cavanough. Mr Kilpin’s failings were a fundamental breach of safety requirements to firstly undertake a pre-start check and secondly to have a known safety issue with the light vehicle rectified. The only differentiating factor would appear to be the incident on the Applicant’s record of 20 January 2020.

Consequences for the Applicant

[123] The Applicant is 56 years old and lives in the La Trobe Valley in Victoria. His evidence is that he has worked at the Yallourn Power station for most of his working life. At the time of hearing the Applicant remained unemployed and had been so since he was dismissed from his employment with the Respondent. The Applicant says that he is too young to retire and is not in a financial position to do so.

[124] The Applicant says that he has sought work but has found it difficult given his age.

[125] Given these circumstances the Applicant submits that the personal consequences of the dismissal have been significant.

[126] Whilst the Respondent does not dispute the adverse effects of the dismissal on the Applicant it submits that a dismissal will inevitably have adverse consequences. Further, the Respondent submits that to accept that age or location per se make a dismissal harsh is to permit a lower standard in relation to compliance with safety procedures based on age or location.

[127] I accept that the dismissal has had negative consequences for the Applicant in this matter. Whilst these consequences might not be unusual, I accept that they are exacerbated due to the geographic location, age and limited breadth of work experience of the Applicant.

Contrition or otherwise of the Applicant

[128] The Applicant submits that he has demonstrated an awareness of the seriousness of the matter and has apologised to the Respondent for his action. He did so at the meeting with the Respondent on 27 August 2020 when he read out an apology. That statement read:

I wish to apologise for my actions on this said morning and am very sorry for any inconvenience that I have caused to the company, I admit and I am embarrassed that I failed to park the vehicle in a situation that does not adhere to the mines parking procedure.

Moving forward if I am fortunate enough to retain my role within the organisation, I would make it my utmost commitment to adhere to all the safety practices within the organisation and follow procedures to my utmost capabilities.

I enjoy my role with the company and in my time with fire services I believe I have put in place strategies that have helped the organisation and cut costs, namely on the maintenance of Water Sprays. I have a good working relationship with my crew and my immediate supervisor.

Once again, I apologise for my actions on this morning and would be incredibly grateful for the opportunity of ongoing employment.

[129] Further, the Applicant submits that his remorse is apparent in his evidence given in proceedings.

[130] The Respondent submits that the Applicant has not shown contrition and that his apology, delivered at the show cause stage, weakens any force in that apology.

[131] Whilst I accept that the apology given by the Applicant was not given until he attended the show cause meeting I have reviewed the statement of the Applicant given on the day of the incident on 10 August 2020. In that statement the Applicant does not seek to minimise his actions – he sets them out fully, clearly and honestly. It is not apparent in either the written statement of 10 August 2020 or in his oral statement to the investigator that the Applicant sought to minimise his culpability.

[132] I am satisfied that the Applicant has shown a level of contrition and has apologised for his actions. Beyond the date of the incident when he was stood down, the Applicant had only one meeting with Mr Hyde and at that meeting issues in relation to errors or omissions in the show cause letter appear to have been a key part of the meeting. Further meetings with the Respondent were cancelled.

[133] In the circumstances however this adds little to my consideration of whether the dismissal was harsh, unjust or unreasonable. It certainly does not weigh against the Applicant.

CONCLUSION

[134] I have considered my finding as to a valid reason for the dismissal of the Applicant (that he failed to park the light vehicle in a fundamentally safe manner and hence breached the procedure) and balanced this against my finding that the treatment of the Applicant in dismissing him was different to that apportioned to Mr Kilpin who, through his breach of safety requirements, allowed the Applicant to use a light vehicle he knew to have an issue with the handbrake.

[135] I have also taken into account that the standard necessary to meet the exception in clause 2.11 of the Agreement has not been met such that the Applicant has been denied an opportunity to have his dispute application dealt with. In this respect the Applicant has been denied procedural fairness. Not only this, however, but the implications on the disciplinary action taken are immense – a first written warning compared to dismissal. There may be views as to the appropriateness of the graduated scale of disciplinary action but that is not the matter before me today. It is only if the dismissal was harsh, unjust or unreasonable and hence unfair.

[136] I have also taken into account the consequences of the dismissal for the Applicant.

[137] The determination of this matter is a question of balance – the existence of a valid reason must be balanced against other findings I have made, all of which warrant serious consideration.

[138] The most pressing issue in this exercise is the differential treatment shown to the Applicant compared to that of Mr Kilpin. The disregard for safety standards is evident in the action of each person. The existence of a verbal warning to the Applicant is not, in my opinion, enough to justify the difference in outcome.

[139] I am therefore satisfied that the dismissal of the Applicant was unreasonable.

[140] I therefore find that the Applicant was unfairly dismissed.

REMEDY

[141] Section 390 of the FW Act states:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[142] Having determined that the Applicant was unfairly dismissed it is necessary to consider the appropriate remedy.

[143] The Applicant seeks reinstatement. This is opposed by the Respondent. In circumstances where compensation is only to be considered if the Commission considers reinstatement inappropriate, it is necessary that I first consider reinstatement.

Reinstatement

Submissions and evidence for the Applicant

[144] The Applicant submits that the Respondent has adduced no direct evidence that reinstatement is inappropriate. Rather, it says that the Respondent relies on the evidence of Mr Cavanough, who agrees that he has never met the Applicant and Mr Hyde who does not directly supervise the Applicant. The Applicant submits that it is necessary that the Respondent call someone who directly supervised or managed the Applicant to give evidence as to any loss of trust and confidence, neither of whom were called to give evidence. 51

[145] The Applicant submits that no probative evidence of a loss of trust and confidence was given. To the extent the Respondent failed to call direct evidence on this issue from Mr Burton (the Applicant’s supervisor) or Mr Crosby (the Applicant’s leading hand) the Applicant says that I can infer that their evidence would not have assisted the Respondent.

[146] In these circumstances the Applicant says there is no rational basis for concluding that the employment relationship cannot be restored.

[147] The Applicant also submits that he has worked in and around mine sites for over 40 years and his evidence is that he is acutely aware of the importance of safety. In this case the Applicant made errors of judgement which he has acknowledged. Further, the Applicant says he is committed to working safely in the future.

Submissions and evidence of the Respondent

[148] The Respondent submits that reinstatement is inappropriate for two reasons. Firstly, it says the Applicant was dismissed for a serious safety incident. In doing so the Applicant contravened the Respondent’s safety policies. This, in conjunction with the Applicant’s previous incidents (the water spray in January 2020 and the electrical cabinet in 2017) demonstrate a careless disregard for known safety requirements.

[149] Secondly, the Respondent says it no longer has confidence in the Applicant’s ability to safely perform work at the Yallourn Site. It says that Mr Cavanough gave sound reasons for having reached his conclusion and had “ample basis to reach the conclusions that he did in light of the evidence available to him.”

[150] The Respondent submits that no adverse inference should be drawn from the failure to call Mr Burton or Mr Crosby. It submits that it is not necessary that a Respondent “call every conceivable witness who might give relevant evidence where admissible evidence on that issue has already been adduced.” 52

[151] The Respondent submits that, even if such an inference as sought by the Applicant is drawn neither Mr Burton nor Mr Crosby’s evidence would advance the Respondent’s case beyond that put.

[152] The Respondent relies on the direct evidence of the Applicant in which he agreed that it was critically important he not perform duties while distracted and in which the Applicant agreed that he was rushing when the incident leading to his dismissal occurred and was not concentrating such that he failed to notice the handbrake lacked resistance. The Applicant agreed that it was a “poor decision” he made on the run.

[153] Further, the Respondent notes that the Applicant gave evidence that he was distracted when he backed this vehicle into the electrical cabinet and that he had parked his vehicle near the water spray having been told earlier of the risks of doing so.

[154] For these reasons the Respondent says it would be inappropriate to reinstate the Applicant.

Consideration

[155] The Full Bench of the Commission in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter 53 considered the authorities in relation to reinstatement and how issues of trust and confidence should be considered in a claim for reinstatement and concluded as follows:

[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

[footnotes omitted]

[156] As was astutely observed by the Full Bench in Nguyen trust and confidence is not the sole, or even a necessary, consideration for determining if reinstatement is appropriate but it has been squarely put as a major consideration in this case.

[157] I do not consider the evidence of Mr Cavanough as to his loss of trust and confidence in the Applicant to be reliable. He commenced working for the Respondent after the incident and determined to dismiss the Applicant within a month. This is not a criticism of the actions of Mr Cavanough, but I do consider, on his own evidence, that his views of the Applicant were based on what he was told by Mr Hyde and not on a view formed by any engagement with the Applicant. It would appear, on the evidence, that Mr Hyde was influential in all aspects of the decision to terminate the Applicant’s employment and shaped Mr Cavanough’s views as to trust and confidence. Mr Hyde’s view as to a loss of trust and confidence appear based on the Applicant’s involvement in three “serious safety incidents” and not wanting to see a fourth and that the Applicant’s “decision-making and lack of situational awareness poses a serious safety risk.” 54 Mr Hyde said he would not feel comfortable putting the Applicant in a vehicle at the site and all positions require operation of a motor vehicle.

[158] I consider that the evidence of Mr Hyde should be given some weight in determining if reinstatement is appropriate. Mr Hyde is the Mine Manager, responsible for “overseeing the operations at the Yallourn Mine and RTL’s objectives in safety, production, quality, environment and costs. I have day-to-day responsibility and overall supervision of the approximate 150 RTL employees on site at the Yallourn Mine.” 55 In this regard I am satisfied that he has direct engagement with the Applicant and knowledge of the implications of the Applicant’s conduct.

[159] Further, I am satisfied that the reasons given by the Applicant for each of the last two incidents strongly support a conclusion as to a lack of attention by him to the overriding importance of safety at the mine site. I have not considered the incident with the electrical cabinet – that occurred three years prior to the light vehicle incident. It is of concern however that the Applicant should be involved in two serious incidents within the space of eight months.

[160] The water spray incident occurred because he did not heed warnings given earlier not to park close to the spray. He did so anyway because he thought he could get out of the way before the spray came around. The second incident with the light vehicle occurred because he was rushing. The Applicant may well observe safety procedures at all other times, and evidence form his direct supervisor may support this, but safety is not something to be observed 99% of the time because it is the other times that lead to incidents such as those in which the Applicant has been involved. I accept that Applicant is sorry for the incidents but this does not stop those incidents eroding confidence in him by others at the site, including Mr Hyde.

[161] I do not draw an adverse inference from the failure of the Respondent to call Mr Burton or Mr Crosby to give evidence. Such evidence may have countered that of Mr Hyde but it does not alter the character of the conclusion drawn by Mr Hyde.

[162] For all of these reasons I am satisfied that the Respondent has grounds for a loss of trust and confidence in the Applicant.

[163] For this reason I find reinstatement inappropriate.

Compensation

[164] Having reviewed the evidence I am not satisfied the parties have fully addressed me on compensation, particularly in light of the decision I have made. It is therefore my intention to issue directions for the filing of submissions and evidence to deal with that question.

COMMISSIONER

Appearances:

P. Boncardo of counsel, for the Applicant.

A. Pollock, of counsel, for the Respondent.

Hearing details:

2020.

Melbourne.

12 January 2021.

Final written submissions:

Applicant: 2 and 24 February 2021.

Respondent: 22 February 2021.

Printed by authority of the Commonwealth Government Printer

<PR728462>

 1   Witness statement of Mr Bernard Hyde, annexure BH-2, Court book page 190.

 2   Witness statement of Mr Bernard Hyde, annexure BH-3, Court book page 208.

 3   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14].

 4   R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 at [6]; cited in Chubb Security Australia Pty Ltd v Thomas Print S2679.

 5   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

 6   Rode v Burwood Mitsubishi Print R4471.

 7   Transcript PN209.

 8   Transcript PN214.

 9   Witness statement of Mr Douglas Drowley, paragraph 3, Court Book page 125.

 10   Ibid.

 11   Court Book page 287.

 12   Transcript PN265.

 13   Transcript PN297 and 299.

 14   Witness statement of Mr Douglas Drowley, paragraph 14, court book page 46. See also written statement of Mr Douglas Drowley of 10 August 2020, Court Book page 309.

 15   Transcript PN122-123.

 16   Witness statement of Mr Douglas Drowley, paragraph 8, Court Book page 43.

 17   Transcript PN144.

 18   Transcript PN147 and PN149.

 19   Transcript PN 152.

 20   Transcript PN332.

 21   Witness statement of Ms Kylie Brooks, annexure KB-2, Court Book page 294.

 22   Transcript PN556-557.

 23   Transcript PN657.

 24   Transcript PN652-653.

 25   Witness statement of Mr Geoffrey Dyke, annexure GD-3.

 26   The postponement of the proposed meeting of 7 September 2020 is detailed in an exchange of emails between the parties. This exchange can be found in the witness statement of Mr Geoffrey Dyke, annexure GD-13.

 27   Transcript PN896.

 28   Transcript PN898.

 29   Transcript PN902-903.

 30   At 214.

 31   At 214. See also the description by Ambrose J in Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2

Qd R 25 at 51 as ‘depending on the nature of the misconduct’.

 32   Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 41 (Derrington J).

 33   Ibid.

 34   Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 152 (Isaacs ACJ).

 35   At 51,

 36   Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214 at 223

 37   Applicant’s closing submissions, 2 February 2021, paragraph 14.

 38   Transcript PN262-265.

 39   Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 51.

 40   Transcript PN485.

 41   Transcript PN532.

 42   Transcript PN472.

 43   ICAM report, page 17 of 19. See witness statement of Ms Kylie Brooks, annexure KB-3. See also See witness statement of Ms Kylie Brooks, annexure KB-2W investigation report.

 44   Witness statement of Ms Kylie Brooks, ICAM Report annexure KB-3 pages 9 and 10 of 19.

 45   Transcript PN662-663.

 46   Transcript PN669-672.

 47   Transcript PN708-711, witness statement of Mr Bernard Hyde, annexure BH-14.

 48   Witness statement of Mr Douglas Drowley, paragraph 12.

 49   Transcript PN926.

 50   Ibid.

 51  Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627 at [42].

 52   See Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 at [360] as cited in submissions of the Respondent dated 22 February 2021.

 53   [2014] FWCFB 7198.

 54   Witness statement of Mr Bernard Hyde, para 105.

 55   Witness statement of Mr Bernard Hyde, para 3.