"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Anglo Coal (Dawson Services) Pty Ltd
[2012] FWA 5263
•19 JUNE 2012
[2012] FWA 5263 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Anglo Coal (Dawson Services) Pty Ltd
(C2011/4913)
COMMISSIONER SPENCER | BRISBANE, 19 JUNE 2012 |
Dispute relating to the alleged demotion of Mr Peter Jackson.
Introduction
[1] This determination arises from an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU/the Applicant) relating to their member Mr Peter Jackson. The application has been made in accordance with clause 5.1—“Dispute Resolution” of the Dawson Mines Collective Enterprise Agreement 2010 (the Agreement). The application relates to the alleged demotion of Mr Jackson (a leading hand in the Mobile Maintenance workshop), by Anglo Coal (Dawson Services) Pty Ltd (the Respondent)
[2] The application is made pursuant to s 739 of the Fair Work Act 2009 (the Act). The Applicant sought that the “show cause” letter alleging serious misconduct by ‘failing to adhere to site procedures and policies in relation to employee conduct and behaviour by sleeping on the job’, was unjust and unreasonable and sought that the final warning letter be removed from Mr Jackson’s file and that he be reinstated.
[3] The matter was subject to conciliation, the parties agreed it was unable to be resolved and the Applicant requested the matter be arbitrated. Directions were set for filing of evidence and submissions. The matter was heard in Gladstone and the parties later filed written submissions. The Applicant was represented by Ms Lucy Weber, of the AMWU. The Respondent was represented by Mr Chris Newman of the Respondent. A separate decision on legal representation was issued prior to the hearing. 1
[4] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Relevant legislative provision
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
Relevant section of the Agreement
5.1 Disputes Resolution
In the event of any dispute arising under this Agreement, the National Employment Standards or in the course of employment, work shall continue in accordance with the reasonable direction of management.
Step 1
…
Step 5
Should a resolution not be reached and the dispute has arisen from the terms of this Agreement or the National Employment Standards, the matter may be referred by any of the Parties to Fair Work Australia for conciliation. Where resolution is reached before Fair Work Australia, it shall be promptly implemented and complied with by the Parties.
Should a resolution not be reached and the dispute has arisen from the terms of this Agreement or the National Employment Standards, the matter may be referred by any of the Parties to Fair Work Australia, for determination through arbitration.
It is the intention of the Parties that in fulfilment of Step 5, Fair Work Australia shall exercise the functions and powers normally associated with conciliation and arbitration.
Should any of the Parties be of the view that the matter at any level is not being progressed in a timely manner, it may be escalated to the next step upon reasonable notice being provided to the other party.
[5] The parties agreed the steps of the disputes procedure have been discharged.
Agreed question to be arbitrated
[6] Prior to the arbitration, the parties agreed on the following questions for arbitration, by FWA:
1) Following the events which occurred on 21 March 2011, was it unjust or unreasonable in the circumstances for the Respondent to:
a. Issue a ‘major breach’ under the “Anglo Coal (Dawson Services) Pty Ltd Counselling Policy and Process”?
b. Remove Mr Jackson from the leading hand position?
c. Remove Mr Jackson from the mines rescue team?
d. Remove Mr Jackson from the Maintenance 7 day/night rotating roster?
1) If so, should the major breach issued to Mr Jackson be removed by the Respondent from Mr Jackson’s file, and should Mr Jackson be re-instated (without loss of pay) to his leading hand position, to the mines rescue team and to the Maintenance 7 day/night rotating roster?
2) If not, is alternative disciplinary action appropriate in the circumstances?
The incident on 21 March 2011
[1] The incident central to this dispute occurred on 21 March 2011 and involved Mr Jackson and Mr Steven Wedrat, a Serviceman employed by the Respondent at the Dawson mine site.
[2] The Applicant’s account of the incident in summary is that: Mr Jackson was acting as ‘step up’ Supervisor for the shift. At the beginning of the shift Mr Wedrat advised Mr Jackson that he was feeling tired; however he had passed the computer test that employees are required to pass before commencing work. He agreed he would advise Mr Jackson if he felt fatigued during the shift. Later in the shift, Mr Wedrat advised that he felt fatigued, so Mr Jackson directed him to take a 20 minute “nap” in the ‘pre-start’ room (as the crib room was noisy and light). After 15 minutes Mr Jackson went to the pre-start room to check on Mr Wedrat. As Mr Jackson was now on a crib break, he sat on a table with his back against a wall to wait the further 5 minutes before waking Mr Wedrat. Before this time was up, Mr Grant James (Field Maintenance Superintendant) and Mr Michael Merritt (Field Maintenance Supervisor) entered the room. An exchange occurred, culminating in both Mr Wedrat and Mr Jackson being stood down. 2
[3] The Respondent’s account of the incident is that Mr James and Mr Merritt undertook an unannounced inspection during the night shift after reports of low productivity and workers’ sleeping on the job. When they inspected the pre-start room they found, Mr Wedrat asleep across some chairs and Mr Jackson sitting on a desk. The room was dark but the door was open. Mr James and Mr Merritt did not enter into discussions, but moved on with their inspection. After completion of the inspection, Mr Jackson and Mr Wedrat (and another employee) were sent home. 3
Summary of Submissions by the Applicant
[4] The Applicant submitted that a ‘show cause’ letter was issued to Mr Jackson the following day, and a show cause meeting occurred on 24 March 2011. On 25 March 2011, the Respondent issued Mr Jackson with a letter stating that he would be issued with a ‘major breach’, would be demoted from leading hand and would be removed from the Mines Rescue Team. He would also be removed from the 7-day day/night roster, which would cause a substantial loss of income. The ‘major breach’ relied on the allegations that: although Mr Jackson was not asleep, he intended to sleep; and because he had an intention to sleep he did not provide adequate supervision to the crew. Accordingly it was considered that Mr Jackson, did not follow company procedure by not sending an ill worker (Mr Wedrat) to the nurse; and he did not follow the company fatigue policy. 4
[5] In response to the reasons given by the Respondent for issuing the major breach, the Applicant made a number of submissions.
Non-compliance with the fatigue policy
[6] The Applicant submitted that at the time of the incident, Mr Jackson held a reasonable belief that Mr Wedrat was fatigued. This was based on what Mr Wedrat had told him and his knowledge that Mr Wedrat had been ill during previous shifts. The Applicant submitted that it was appropriate for Mr Jackson to treat Mr Wedrat as a fatigued worker. The Respondent was (or ought to have been) aware of this reasonable belief, particularly because both Mr Jackson and Mr Wedrat indicated to investigators that Mr Wedrat had been ill and was subsequently tired, but was not ill on the day in question.
[7] The Applicant referred to the company fatigue policy and submitted that Mr Jackson had followed it, as directing a fatigued worker to take a short nap in the first instance is within the guidelines. It was submitted that the policy only requires the supervisor to send the worker to the nurse if there is ‘continuing concern’ (after the action taken at first instance). The Applicant referred further to the ‘napping guidelines’ which direct that a 20 minute nap is the appropriate length and the most appropriate location to nap is that, as discussed between the worker and the supervisor. 5
[8] The Applicant submitted that Mr Wedrat complied with the fatigue policy by taking and passing the pre-start test, by monitoring his fatigue, by reporting his fatigue and following Mr Jackson’s direction with the intent of managing the fatigue. Mr Jackson complied with the fatigue policy and acted reasonably by monitoring Mr Wedrat’s fatigue and directing him to take a short nap in accordance with the policy. The Applicant submitted that directing Mr Wedrat to nap in the pre-start room was a reasonable decision of Mr Jackson, as the crib room was light and noisy at the time. 6
Alleged intention to sleep
[9] In making this allegation, the Respondent asserted that Mr Jackson had a ‘makeshift pillow’; was lying on a table in a darkened room; and was not in a ‘designated fatigue nap area.’ The Applicant submitted that Mr Jackson did not use a makeshift pillow - the only other thing on the table was a work manual. Further, Mr Jackson was sitting on the table, not lying as one would do if they intended to sleep. The Applicant submitted that the room was dark when Mr Jackson entered and was so because Mr Wedrat was sleeping. In relation to ‘designated fatigued napping areas’, the Applicant submitted that there are no such designated areas under the policy, or otherwise known to employees, and that there is no clear custom relating to locations for napping. 7
[10] The Applicant also submitted that it was “plainly unjust” for the Respondent to take disciplinary action against Mr Jackson for ‘attempting’ or having an intention to sleep, where it concedes that he was not asleep. 8
Failing to supervise crew
[11] The Applicant submitted that, in accordance with the fatigue policy, it was reasonable for Mr Jackson to check on Mr Wedrat in the pre-start room. As Mr Wedrat only had 5 minutes left to nap, it was reasonable for Mr Jackson to sit down (as he was only on a crib break). Regarding the allegation that he failed to properly supervise his crew, the Applicant submitted that Mr Jackson was taking a crib break he was entitled to; had his phone with him at all times; had no intention of sleeping; and, prior to leaving the work area, had advised a senior employee that he was going to check on Mr Wedrat. Further, it submitted that it was unreasonable to assert that Mr Jackson would have been more capable of supervising employees from the crib room, as visibility from that area is limited and employees undertake work in locations beyond the workshop regardless. 9
[12] As a whole, the Applicant submitted that disciplinary action taken against Mr Jackson was unjust and unreasonable. The definition of ‘major breach’ in the Respondent’s Counselling Policy refers to incidents where it ‘was evident’ that the employee knew the appropriate action to take in the circumstances, but was ‘reckless, careless or indifferent as to the outcome of his actions.’ The Applicant submitted that both employees acted consistently with the fatigue policy and in a manner that was reasonable. Neither Mr Jackson nor Mr Wedrat were at any time reckless, careless or indifferent regarding their actions. Therefore, it is the Applicant’s position that the 21 March incident does not fall within the definition of a ‘major breach.’ 10
[13] As such, the Applicant submitted that it was unreasonable for the Respondent to move Mr Jackson to a different roster that had the effect of substantially reducing his income. Further, there was no reasonable reason to remove him from the Mines Rescue Team, as he is qualified and experienced in this role and even if the allegations were founded, they would have no bearing on his ability to perform this role. The Applicant also submitted that this incident has caused Mr Jackson significant stress and as such he has made a WorkCover application, which has been approved with the Authority noting management action as a contributing factor. 11
Summary of Submissions by the Respondent
[14] The Respondent submitted that after standing the employees down, Mr James contacted the nurse who confirmed that neither Mr Wedrat nor Mr Jackson had reported sick during the shift. An investigation into the incident commenced at the show cause letter was issued on 22 March 2011. A show cause meeting was held on 24 March and the Respondent considered the statements of the relevant employees and witnesses. On 25 March the Respondent provided the letter to Mr Jackson that outlined the penalty and put in elements to be applied. 12
[15] The Respondent submitted that the penalty imposed on Mr Jackson was not unreasonable given the allegations outlined in the show cause letter (and detailed above). Regarding the allegation that Mr Jackson failed to follow the fatigue policy, the Respondent submitted that the pre-start room is not a recognised napping area, referring to the evidence of a number of senior employees who stated that they have never directed an employee to nap in the pre-start room. 13 The Respondent also submitted that it is well established that if an employee reports to a supervisor that they are unwell, the employee is sent to the nurse or sent home. As a leading hand, Mr Jackson would have been aware of this. The Respondent maintained that Mr Jackson failed to deal with Mr Wedrat’s illness in the manner set out in the Fitness for Work policy, as set out below.14
[16] Further to this, the Respondent submitted that the contemporaneous notes provided by Mr Jackson and his witnesses as part of the investigation make clear that Mr Wedrat was not fatigued but sick. As such, the Fatigue policy referred to and relied on by the Applicant did not apply and Mr Jackson should have managed Mr Wedrat using the Fitness for Work policy. The Respondent submitted that the fatigue story was ‘invented’ by Mr Jackson after the incident. 15
[17] The Respondent submitted that Mr Jackson’s actions meant that he failed to adequately supervise his crew and potentially put their safety at risk.
[18] In coming to the view that Mr Jackson had an “intention to sleep”, the Respondent considered the circumstances in which Mr James and Mr Merritt found him in the pre-start room. The Respondent maintained that the position he was found in, on the desk in the darkened pre-start room and obscured from view to anyone walking into the room, with a makeshift pillow (though this was disputed by the Applicant), indicated on the balance of probabilities that Mr Jackson had an “intention to sleep.” 16 The Respondent submitted that in accordance with its Counselling policy, sleeping on the job is considered serious misconduct (and potentially grounds for termination). Though it was found that Mr Jackson was not sleeping, the finding of an intention to sleep warranted the application of the ‘major breach.’
[19] On the basis of these arguments, the Respondent submitted that the disciplinary action taken was reasonable, as the breach of trust meant that Mr Jackson could no longer be trusted in a supervisory role or as part of the Mines Rescue Team. 17
[20] Finally, the Respondent submitted that the Applicant incorrectly referred to the WorkCover claim. According to the Respondent the WorkCover claim has been rejected by the Authority on the basis that management took reasonable action when dealing with Mr Jackson. 18
“2. Scope
Coal Mining Safety and Health Regulation 2001, Regulation 2001, Section 42 states:
42 Safety and health management system for personal fatigue and other physical impairment, and drugs
(1) A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following:
(a) personal fatigue; ...
(2) The system must provide for the following about personal fatigue for persons at the mine:
(a) an education program;
(b) an employee assistance program;
(c) the maximum number of hours for a working shift;
(d) the number and length of rest breaks in a shift; and
(e) the maximum number of hours to be worked in a week or roster cycle.
(3) The system must provide for protocols for other physical and psychological impairment for persons at the mine.
....” 19
“3. Definitions
...
Fatigue Observation Form: written form completed and signed by the coal mine worker to declare anything that shall or potentially may impair a coal mine worker’s fitness for work as a result of fatigue.
Fatigue: a physical condition that can result when an individual’s physical or mental limits are reached and/or exceeded.
Fit for Work: that an individual is in a condition that enables them to perform assisgned tasks in a manner that does not compromise the safety and health of themselves or other persons at the site.
...” 20 (emphasis added)
“4. Procedural Requirements
4.1 General
The control of fatigue-related risk at Dawson Mines relies on strategies of:
● Appropriate application of workplace procedures, and
● Training and Education towards effective management of fatigue.
Workplace procedures and practices shall be reviewed regularly with a view to minimising fatigue related risk. In addition, this procedure will impose limits on the hours of work in any shift and roster cycle and breaks between within shifts. All personnel shall be required to adhere to these limits. In addition, the extent to which fatigue contributes to incidents shall be investigated.
The aim of this procedure is to ensure that rostered and non-rostered work can be completed to ensure that personnel do not suffer from fatigue that may place individuals or others at an unacceptable level of risk.
4.2 Education Packages
To Manage fatigue in the workplace, workers should ensure that they take positive steps to deal with the effects of the shift roster. These steps shall be outlined in a training package for the workforce and shall include:
● Recognition of personal symptoms of fatigue.
● Recognise hazards that have the potential of increasing levels of fatigue e.g. environment, nature of work, ergonomics, diet, medical conditions, medication, alcohol and illicit drugs.
● Strategies for the effective management of fatigue.
● Strategies to optimise sleep e.g. darkening the bedroom.
● Recognition of the importance of lifestyle factors in fatigue management.
● Reporting to their Supervisor when they feel fatigued.
● Reporting instances where they believe others may be fatigued.
● Actively participate in fatigue management surveys, observations and other strategies.
● Employee Assistance Program.
Supervisors and individuals shall be responsible for monitoring worker fatigue within the workplace. To manage fatigue in the workplace, supervisors should ensure that they take positive steps to identify signs/symptoms of fatigue in persons under their supervision. These signs/symptoms shall be outlined in a training package for the supervisor and shall include:
...” 21
“4.3 Management of the Fatigued Worker
If a person is considered to be fatigued (as identified by themselves using the individual assessment Appendix 1 or another person), and it is agreed that fatigue could be an issue, that person will have a discussion with their supervisor and decide on actions to manage their fatigue.
This could include:
● Break in Shift;
● Task Rotation; Alternative Duties;
● Short Nap*; or
● Going Home.
*Refer to Appendix 2 Napping Policy for guidelines on napping onsite.
If the supervisor and person agree that there is no reason for concern after actions have been taken, then the person will commence/continue with shift.
In the circumstances that there is a continued concern and the supervisor and the person agree that further investigation is required; the following process shall be implemented:
1) Supervisor organises to take the person to the onsite Nurse for Review.
2) Person completes Fatigue Observation Record Form (FRM 0156).
3) Person and Nurse discuss information identified from Fatigue Observation Record Form and make further recommended actions.
4) The Person, Nurse and Supervisor shall discuss the recommendations and decide on actions which could include returning to normal duties, returning to restricted/alternate duties, short nap, or resting onsite for the duration of the shift or going home.
5) If the Supervisor, Nurse and person agree that the person is too fatigued to continue work, the person will be classed as unfit for work.
6) Should a person choose to leave site normal sick leave provisions will apply for the remaining duration of the shift. A sick leave form shall be completed. Arrangements to be made to transport the worker from the site.” 22
“Appendix 1 - Individual Fatigue Assessment
Yes | No |
Have you had less than 5 hours sleep in the previous 24hours? | - |
Have you had less than 12hours sleep in the previous 48hours? | - |
Are you feeling or displaying symptoms of fatigue? | - |
Note: If you answer yes to two or more of the above questions you are considered to be fatigued. Please contact your supervisor to discuss options for the management of your fatigue.” 23
“Appendix 2 - Napping Guidelines
These napping guidelines shall be used in conjunction with MOP-0009 Fit for Work Fatigue
Purpose
The intent of these guidelines is to apply circumstances where a person may require a nap outside the existing crib or break times. Napping in breaks is encouraged if needed.
Where fatigue has been indicated the following process shall apply:
1. High level of fatigue identified using the individual fatigue assessment
2. Pull up in a safe location
3. Contact supervisor - ‘Can I catch up with you’
4. Inform your supervisor of your individual fatigue score and discuss options as per MOP-0009 Fit for work Fatigue
5. If the decision is made to allow a nap please ensure:
a. If operating a truck and it is loaded, dump load and proceed to go line unless it is deemed unsafe to do so e.g. driver too fatigued
b. Nap not exceed 20 minutes (a longer nap is detrimental and you are responsible for monitoring you nap time)
c. In cab two-way radio must remain on during your nap to ensure you are contactable during this time
6. Prior to taking off from go line, you must complete a walk around inspection of your vehicle.
7. Contact dispatch and/or Supervisor to inform of intentions to rejoin active circuit.
Note: If you are not operating a piece of equipment e.g. field or mobile maintenance, please discuss with your supervisor the most appropriate place for you to have your nap.
If, following a nap, fatigue is still a matter of concern please refer to MOP-0009 Fit for Work Fatigue for further management guidelines.” 24
[1] Mr Philips agreed that the crib room was the customary place on site for supervisors to direct fatigued workers to take a nap. He stated that this was so supervisors could monitor or ‘look in on’; the ‘fatigued’ worker. He stated; and agreed during cross examination that (as per photographs 9 to 12) that from the maintenance workshop the supervisor would need to step up to view into the crib room. Ms Weber showed photograph 7 to Mr Philips; and put to him that there was shelving and machinery that would impede the view into the crib room. Mr Philips agreed in evidence that it took approximately a minute to walk between the crib room and the pre-start room.
[2] The evidence of Mr Jackson was that he had sat with Mr Wedrat; to monitor his last 5 minutes. He confirmed he had not commenced his crib break at this time, when monitoring Mr Wedrat napping.
[3] There is a distinction between napping and sleeping. Mr Philips emphasised that the nap in accordance with the guidelines should be no longer than 20 minutes or it is considered to be detrimental. However he conceded that whilst the napping may be interrupted in the crib room it is a safer place to nap than the pre-start room. He stated that the crib room often had workers there but the pre-start room was only generally used for training.
[4] Mr Philips confirmed that management had directed that the inspection conducted of the night shift occur due to concerns about productivity issues on the night shift.
[5] Mr Philips stated that in relation to a fatigue self assessment (Appendix 1 to MOP-0009) as he refers to in his statement. He says:
“As part of the investigation into the incident, I also considered whether Mr Wedrat had completed a fatigue self-assessment form on 21 March 2011 in accordance with the fatigue policy. My investigation revealed that Mr Wedrat did not complete a fatigue self-assessment on 21 March 2011.” 25
[6] The union contended that this form is only available; from the computer not in hardcopy form. Mr Philips was unsure if hardcopy forms were available in the workshop.
[7] With reference to [38] of Mr Philips’ statement as follows:
“I recall that Ms Arndt and I discussed what Mr Merritt and Mr Grant had told me. We discussed that based on their evidence, it seemed that Mr Jackson had been attempting to sleep in the pre-start room during his shift and at a time when he was the Leading Hand stepping up as the Supervisor and was responsible for the welfare and safety of A Crew. Further, we discussed that it was inappropriate for Mr Jackson to have directed Mr Wedrat to nap in the pre-start room, as the pre-start room is out of sight of the Maintenance Workshop and as such, is isolated. We discussed that if Mr Jackson had directed Mr Wedrat to sleep in the crib room, he could have observed Mr Wedrat through the window in the crib room while still being in the vicinity of other A Crew members. Accordingly, we concluded that Mr Jackson’s conduct was serious.”26
[8] Mr Philips determined by the conduct and the conversation (prior to the show cause meeting of 24 March 2011 at the tennis club) that both men were attempting to sleep. The show cause meeting was the first time that Mr Philips and others had discussed the issues with Mr Jackson and Mr Wedrat. At the show cause meeting Mr Jackson and Mr Wedrat read out their statements. Mr Philips stated that this conclusion regarding Mr Jackson and Mr Wedrat was reached also on the basis of the statements from the employees (Mr Merritt and Mr James) who conducted the inspections. 27
[9] It was put to Mr Philips that given Mr James’ statement said Mr Jackson was lying down, although he stated he was sitting up, there was a rag pillow on the table beside him and he was behind the projector. He was detected the second time they entered as they saw his legs below the projector. Mr Wedrat in his evidence admitted to having a pillow.
[10] The meeting to discuss the conduct was held at the tennis club, as Mr Hempseed (the AMWU representative) had failed the OSPAT, (it was a false negative) and this was the reason that the meeting had occurred off- site that day.
[11] Mr Philips stated that during the meeting Mr Jackson admitted lying down; he also raised a range of mitigating factors for managing the situation as he had:
“During the meeting, Mr Jackson admitted lying down in the pre-start room. I recall that Mr Jackson stated that the reason he had been lying down was because he wanted to keep an eye on Mr Wedrat, because Mr Wedrat had been feeling sick.
I recall that Ms Arndt asked Mr Jackson why he did not send Mr Wedrat to the nurse if Mr Wedrat was feeling sick. I recall that the reasons Mr Jackson put forward for not sending Mr Wedrat to the nurse were as follows:
(a) Mr Wedrat had already been on sick leave the previous shift, so he knew that Mr Wedrat was ill;
(b) Mr Wedrat had recently been issued with a reminded letter about the amount of uncertified sick days he had taken from the Mine;
(c) A few days earlier another employee had been sent to the nurse but was returned untreated after waiting for 45 minutes;
(d) Mr Jackson did not want to send Mr Wedrat back to the camp, which could be a consequence of seeing the nurse, as someone had recently died alone in the camp; and
(e) Mr Jackson believed that he had followed the procedure at the Mine for napping.” 28
[12] In terms of whether Mr Jackson could reasonably undertake it was recognised that he had his phone and two-way at the time he was in the pre-start room.
[13] Mr Philips; did not attribute the lack of PPE by some crew members to Mr Jackson, or consider it as part of the issues associated with Mr Jackson’s discipline.
[14] The evidence was that neither Mr Philips nor Mr Merritt had directed an employee to take a fatigue or ‘napping’ break. His conclusion that it was customary for employees to nap in the crib room was based mainly on discussions with another supervisor. He stated he was not aware of people sleeping away from the crib room on site. However, he conceded in his prior roles in Moura previously the majority of his time was spent in the Maintenance Administration building. Mr Philips, also stated that he didn’t recall Mr Wedrat raising at the show cause meeting that he was tired rather than sick.
[15] Mr Philips clarified during cross-examination that, Mr Jackson being away from his supervisory duties with an intention to sleep, justified changing Mr Jackson from night shift to day shift, where there would be more supervision of Mr Jackson. He was aware that this caused a loss of earnings of some $33,000. Further he stated; the removal of Mr Jackson from the Mines Rescue Team was on the basis that he was not exemplifying safety requirements.
[16] Mr Philips was referred to Mr Jackson’s show cause statement as follows:
“...I then walked around the other side of the projector screen that was set up in the room and sat on the table/bench. I then thought to myself that I would give Steve about 5 minutes more sleep without disturbing him. I then layed on the table/bench myself as I had not had second crib, I just layed down and was thinking what I was going to do with Steve if he still didn’t feel well when I woke him up, I was thinking about my options. I then saw Michael Merrit walk into the room and stand approximately 2 mentres in front of the projector screen straight inline with Steve, as I could see Michael’s feet from where I was positioned. Grant James then put his head around the corner of the wall and saw Steve asleep and smiled. Grant then pulled his head from around the wall and Michael proceeded to follow him out. I sat up on the table and had a look at the time on my phone it was 3:50am. Approximately 20 seconds later Micheal walked in first followed by Grant, Grant then proceeded to turn on the lights, During all this Steve was still asleep. When the lights came on Grant was looking around the corner straight at Steve with a smile on his face. I said “are you right there” and the reply from Michael Merritt was “Just the man we were looking for”. Both Michael and Grant left the room without saying anything else...”29
[17] Ms Weber put to Mr Philips, that Mr Jackson had said Mr Wedrat was not sick, but was tired due to having been sick. Mr Philips said he couldn’t recall this.
[18] Ms Arndt told Mr Jackson that he should have sent Mr Wedrat to the nurse as he was sick. Ms Weber emphasised that Mr Jackson stated that Mr Wedrat; had said he was tired. Mr Philips stated he could not recall the exact details of the meeting or Mr Hempseed or others raising that Mr Wedrat was sick rather than tired.
[19] Mr Philips stated that:
“I recall that we discussed that it didn't matter how long Mr Jackson had been lying down for when Mr Grant and Mr Merritt discovered him in the pre-start room. It was clear, based on Mr Jackson's own admissions that he was in the pre-start room and that he had laid down on the table. The evidence in the investigation indicated that a bundle of rags rolled up as a makeshift pillow were found on the table next to Mr Jackson and Mr Jackson, through his actions had abandoned his crew by leaving the Maintenance Workshop and entering an isolated area with the intention of sleeping.
I recall that we also discussed Mr Jackson's allegation in his statement that Mr James had denied him an opportunity to tell his side of the story and respond to the action that was being taken in standing him down. We agreed that Mr James had told Mr Jackson that the Human Resources Department would complete an investigation. Accordingly, we agreed that Mr James’ response was appropriate and consistent with the established practice for conducting investigations at the Mine, as it was not his role to investigate the matter and Mr Jackson was given a full opportunity to provide a response during the investigation.
During our discussion, we concluded that the reasons provided by Mr Jackson in his statement and during the show cause meeting did not justify his decision to leave his crew unattended and to lie down on a table next to Mr Wedrat in the pre-start room. We considered and I was satisfied that on balance, the evidence collected through the investigation process suggested that Mr Jackson had abandoned his crew without good reason and had gone into the pre-start room with the intention to sleep.
In coming to this conclusion, I considered and was satisfied that:
(a) Mr Jackson was Leading Hand and stepping up as the Supervisor on 21 March 2011 and as such, was charged with the welfare and safety of the rest of the A Crew;
(b) If Mr Jackson had genuinely believed that Mr Wedrat was ill, then Mr Jackson should have followed the established practice at the Mine and sent Mr Wedrat to the on-site nurse;
(c) If Mr Jackson had been concerned about the repercussions of sending Mr Wedrat home because he was unfit for work, then the best course of action should have been to send Mr Wedrat to the on-site nurse for a medical assessment;
(d) I understand that one of the workers at the Mine had recently died in the camp after the worker suffered a heart attack. It is my understanding that the worker's heart attack was not in any way related to his employment at the Mine. If Mr Jackson believed that Mr Wedrat did have a serious medical condition causing him to fear for Mr Wedrat's safety, then Mr Jackson should have sent Mr Wedrat to the on-site nurse or to a doctor for medical treatment immediately rather than allowing Mr Wedrat to take a nap in the pre-start room;
(e) Mr Jackson was aware of the requirements of the Fatigue Policy and Napping Guidelines and their application to fatigued workers. By directing Mr Wedrat to take a nap in the pre-start room in circumstances when Mr Wedrat was not fatigued and by attempting to sleep himself in the pre-start room in circumstances when he was not fatigued, Mr Jackson had breached the Fatigue Policy.
(f) In any event, the accepted practice at the Mine is for fatigued workers to be directed to have a nap in the crib room, not the pre-start room;
(g) Mr Jackson admitted that he had been lying down on the table in the pre-start room and the evidence suggested that he had been found with a bundle of rags rolled up like a pillow on the table beside him; and
(h) Mr Jackson had not in fact been asleep, as he could recall and provide some information about the incident.
...
I recall that we also discussed that if Mr Jackson had been feeling fatigued at the time and needed a fatigue nap, a reasonable supervisor or leading hand would have contacted a leading hand or supervisor in the Field Maintenance Department to look after A Crew while he either had a short nap or visited the on-site nurse.
In all of the circumstances, and as Mr Jackson had not actually fallen asleep, we agreed that it was appropriate to issue Mr Jackson with a “Major Breach” under the Anglo Coal (Dawson Services) Pty Ltd Counselling Policy and Process (Counselling Policy) rather than treating the matter as serious misconduct. Attached to this statement and marked “MP-9” is a copy of the Counselling Policy.
We also considered that Mr Jackson had engaged in conduct which showed that he could not be trusted to hold a position of responsibility within the Company. In addition to being a Leading Hand, Mr Jackson was also a member of the Mines Rescue Team. Based on my experience at the Mine and in the mining industry, it is expected that members of the Mines Rescue Team provide a leading example to the rest of the workforce and show a high regard for the safety of others. We considered that as a result of the incident, Mr Jackson did not display the character requirements to be a Leading Hand, or to be a member of the Mines Rescue Team, as he had acted recklessly and disregarded the safety of his crew.”
[20] Mr Philips agreed that he had not spoken to Mr Griffiths or Mr Bendall.
[21] The Anglo Coal MP - 9 - Discipline Policy on Page 38; records ‘sleeping on the job’ as being commensurate with ‘serious misconduct’. The Employer applied the lesser disciplinary a’ major breach’ to Mr Jackson.
Conclusion
[22] The consequences of the conduct for the Applicant in this matter have been significant in terms of loss of status, income and change of roster. The impact of these on the Applicant in relation to the behaviour complained of, have been given serious consideration.
[23] Mining Operations are, potentially hazardous and accordingly require diligent supervision. The appointed supervisors are required to lead by example and to adhere to the required policy and practice in discharging their duties.
[24] Mr Wedrat had been ill prior to the incident. Whether he reported as being sick or tired (as a result of feeling unwell), Mr Jackson directed him to nap in an alternate room to the crib room. This reduced Mr Jackson’s capacity to supervise his crew, the work and monitor Mr Wedrat.
[25] In making the decision to direct Mr Wedrat to the pre-start room, he said he was conscious of recent difficulties that had been experienced in having the Nurse treat employees in a timely manner. Further Mr Jackson was concerned at returning Mr Wedrat to the camp, given the death of an employee at the camp, who had been unwell. These considerations that Mr Jackson referred to, were for a sick employee, rather than an employee experiencing fatigue which would invoke the napping guidelines.
[26] These circumstances must be weighed against the duties of a Supervisor, if a supervisor directs an employee who is unwell to the Nurse; and she refuses him to work without appropriately treating him or the nurse is not efficient in dealing with employees, these are serious matters that the supervisors must make the employer aware of, and it is clearly within the Employer’s duty of Care to remedy the matters. The Supervisors are required to focus on their crew and the operations at hand; and should be able to rely on the Respondent ensuring that the support services are reliable.
[27] Mr Jackson, although aware of employees entering the room, did not volunteer his presence in the pre-start room. An assessment of the evidence indicated Mr Jackson was positioned so as not to be noticeable by others entering the room; further he had fashioned a pillow. The timing of his crib break, has been taken into account. However in all of the circumstances, and against the background of the Respondent being concerned about employees sleeping whilst on night shift, the actions of the Supervisor, given how and where he was, and the lack of clarity of whether Mr Wedrat was sick or tired, were a breach of his required Supervisory duties. The Respondent explained that this conduct of sleeping, or intending to sleep, on the job cannot go unsanctioned by the Employer; particularly one operating a mine site with a high expectation of trust and confidence in their supervision.
[28] It is acknowledged that the Respondent compared the conduct with the available disciplinary responses, and that their clear submission was that the actions of Mr Jackson were commensurate with serious misconduct, but that in taking into account all factors they reduced this to a major breach.
[29] In determining that this disciplinary response was appropriate in the circumstances, the additional penalties experienced by Mr Jackson have been considerable. He has lost a significant amount of income in terms of a resulting change of shifts and his removal from the Mines Rescue team.
[30] It must be highlighted that it became evident in this matter that some of the Respondent’s policies required revising with employees at the workplace for clarity.
[31] All of the matters have been taken into account in determining the agreed questions for arbitration. With all the matters in mind and considering the additional impact that the disciplinary procedure has brought to Mr Jackson, the ‘major breach’ was warranted. However, it is Recommended that the Respondent review the situation (given that more than 12 months has lapsed since the “major breach” was issued), to remedy part of the financial impact on the Applicant by returning him to the Mines Rescue Team. His evidence that he previously played a valued role on this team and had taken these duties very seriously was unchallenged.
[32] For the aforementioned reasons I Order accordingly.
COMMISSIONER
1 2011 [FWA] 6898.
2 Submissions of the Applicant, paragraphs 1-6.
3 Submissions of the respondent, paragraphs 4-7.
4 Submissions of the Applicant, paragraphs 7-10.
5 Submissions of the Applicant, paragraphs 16-19.
6 Submissions of the Applicant, paragraphs 20-22.
7 Submissions of the Applicant, paragraphs 24-29.
8 Submissions of the Applicant, paragraph 30.
9 Submissions of the Applicant, paragraphs 31-35.
10 Submissions of the Applicant, paragraphs 36-38.
11 Submissions of the Applicant, paragraphs 39-41.
12 Submissions of the Respondent, paragraphs 8-11.
13 Submissions of the Respondent, paragraph 13, referring to the affidavits of Mr James (at 11-15); Mr Philips (at 19-23), Mr Merritt (at 10); Mr Daniels (at 8-10).
14 Submissions of the Respondent, paragraph 14.
15 Submissions of the Respondent, paragraphs 18-20.
16 Submissions of the Respondent, paragraph 12; 16-17.
17 Submissions of the Respondent, paragraph 21.
18 Submissions of the Respondent, paragraph 24-26.
19 Exhibit 8 - Mine Operating Procedure 0009 - Fit for Work - Fatigue.
20 Exhibit 8 - Mine Operating Procedure 0009 - Fit for Work - Fatigue.
21 Exhibit 8 - Mine Operating Procedure 0009 - Fit for Work - Fatigue.
22 Exhibit 8 - Mine Operating Procedure 0009 - Fit for Work - Fatigue.
23 Exhibit 8 - Mine Operating Procedure 0009 - Fit for Work - Fatigue - Appendix 1.
24 Exhibit 8 - Mine Operating Procedure 0009 - Fit for Work - Fatigue - Appendix 2.
25 Exhibit 12, Affidavit of Michael Philips, at [35].
26 Exhibit 12, Affidavit of Michael Philips, at [38].
27 Exhibit 12, Affidavit of Michael Philips, “Ex MP-3”.
28 Exhibit 12, Affidavit of Michael Philips, at [45]-[46].
29 Exhibit 12, Affidavit of Michael Philips, “Ex MP-5”.
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