Construction, Forestry, Mining and Energy Union v Anglo Coal (Moranbah North Management) Pty Ltd

[2012] FWA 8197

[2012] FWA 8197

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Anglo Coal (Moranbah North Management) Pty Ltd
(C2012/2170)

VICE PRESIDENT LAWLER MELBOURNE, 20 SEPTEMBER 2012

Alleged dispute concerning warning and termination of employment.

[1] This is an application pursuant to s.739 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union (CFMEU). The application relates to a dispute referred to the tribunal pursuant to clause 5.2 of the Moranbah North Mine Enterprise Agreement 2011. The dispute relates to disciplinary action taken against Mr C, a production worker and CFMEU lodge president, in relation to an incident that occurred between Mr C and another employee, Mr S, on the Grosvenor Estate on 4 November 2011.

[2] The Grosvenor Estate Accommodation Village is a housing estate owned by Anglo Coal (Moranbah North Management) Pty Ltd (the Company) in which it provides accommodation to its mine employees.

[3] For some years the CFMEU has had exclusive, practical representation of the employees at the mine. In recent times some of the electricians at the mine have apparently had some dissatisfaction with the representation they were receiving from the CFMEU and they sought the assistance of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) to represent them in bargaining. A lodge of the ETU has been formed at the mine and has some 10-15 members. Mr S is the Treasurer of the ETU lodge.

[4] The dispute in this matter relates to action taken by the employer as a consequence of a disciplinary investigation against Mr C conducted in relation to an incident that occurred at the Grosvenor Estate Accommodation Village on Friday, 4 November 2011.

[5] Having conducted an investigation, the Company concluded that both Mr S and Mr C were guilty of misconduct but that Mr C bore greater responsibility for the incident. The action taken by the Company was:

• to issue a level 2 warning to Mr C and to remove Mr C from the ERZ Controllers Training Program. That training program, which involves the employer in significant expense on the part of the employee, equips the employee who successfully completes the program with the qualifications necessary to become a mine deputy under the Queensland Coal Safety legislation. The removal of Mr C from the program effectively deprived him of an opportunity that would otherwise almost certainly result in his promotion to the position of deputy at some point.

[6] The incident that occurred on 4 November 2011 was an unpleasant incident. The background to the incident is as follows. For many years the CFMEU had represented all production employees at the mine. In 2011 a group of workers decided that they were dissatisfied with the representation they were receiving from the CFMEU and they sought the assistance of the ETU. Subsequently a number of employees became members of the ETU and an ETU lodge was established at the mine. It is clear that there is a degree of antipathy between loyal members of the CFMEU and the employees who have gone over to the ETU.

[7] Mr S lives at number 16 on a particular street, and Mr C lived at number 22 on the same street. The street bends between the two houses such that persons standing in front of one of those houses can see persons standing in front of the other. On Mr S’s version he left his house and was proceeding to work in a direction away from Mr C’s house. Mr C rode a quad bike up beside him and issued very serious threats that left Mr S in a state of considerable distress. On Mr S’s version, Mr C’s actions were a deliberate and calculated exercise in serious threats and intimidation. Mr C denied that version of events emphatically. He insisted that the incident occurred in a very different way and was provoked by a deliberate and offensive gesture made by Mr S to Mr C and a group of friends with whom he was standing outside the front of his house. Mr C’s version was corroborated by the evidence of those friends, three other employees.

[8] In a practical sense, this dispute turns on the findings of fact that I make in relation to the incident.

[9] There was an argument advanced, somewhat faintly, by the CFMEU that the incident was not sufficiently connected with work to justify a disciplinary investigation and consequent action by the Company. I reject that submission. On the evidence before me the incident had a clearly sufficient connection with work. The incident occurred between two employees who had an already established history of tension arising from the establishment of the ETU lodge at the mine, it occurred whilst Mr S was going to work, it occurred in the accommodation village owned by the mine and used to provide accommodation to employees working at the mine. The employer’s legitimate interest in ensuring the safety and amenity of its employees in the accommodation village is clear.

[10] Deciding cases that turn fundamentally on a preference between the competing oral evidence of witnesses is one of the most difficult aspects of judicial or quasi judicial decision making. There has been a growing appreciation in the courts in modern times of the difficulty of reliably assessing the truthfulness of a witness’s evidence from their demeanour and the manner in which the evidence is given. To this end, the courts have placed an increasing emphasis on the importance of looking for corroboration for one or other of the competing oral versions in contemporaneous documents or the objective matrix of facts in which the events in question occurred.

[11] This was one of that class of case where the decision maker is left with a very clear view at the conclusion of the evidence, recorded in my notes. In this case I found the evidence of each of Mr S and Mr M, the Company’s investigator and Mr W, the manager who was the disciplinary decision maker to be compelling and transparently truthful. I found Mr S’s evidence particularly compelling. I find that Mr M and Mr W acted with scrupulous fairness and professionalism in relation to the investigation and the disciplinary decision-making.

[12] On the other hand, I was considerably discomforted by the evidence of Mr C and each of his corroborating witnesses. I am conscious that care must be taken in the weight that is accorded to inconsistencies between witnesses in the same interest in relation to events at which they were all present. It is normal and to be expected that witnesses giving evidence truthfully about the same incident will have a degree of inconsistency. It is a matter of common human experience that different people remember different things about incidents and can make innocent mistakes or reconstructions. However, in this case there were inconsistencies between the evidence called on behalf of the CFMEU which were of an altogether different character. They are identified in the Respondent’s Updated Outline of Submissions and need not be repeated here.

[13] That conclusion, based on an assessment of the evidence as it was given in the witness box, is corroborated by a number of objective circumstances which are also identified in the Respondent's submissions. Significantly, I am satisfied that Mr S invariably used the sliding door in the carport of his house as the door through which he entered and exited his house. I am satisfied on the map and photographic evidence that the line of sight that was available to Mr C and his corroborating witnesses from the vantage point that they indicated in their evidence did not permit them to see Mr S put his bag down and raise it again in the manner that they insisted occurred. It is not possible to see the door from which Mr S exited from the position that Mr C and his witnesses had occupied. I also place weight on the evidence of Mr S’s contemporaneous distress, observed by other employees in the immediate aftermath of the incident. I am satisfied that the Company conducted a thorough and fair investigation and that it did so genuinely seeking to ascertain the truth of what had occurred.

[14] It follows from the findings that I have made that I am satisfied that Mr C engaged in the misconduct found against him by the company. I am satisfied that the actions taken by the company were entirely justified and warranted by the circumstances. I note further that there is a real issue as to whether the withdrawal of Mr C from the ERZ Controller’s Training Program is properly characterised as a species of discipline amenable to interference by the tribunal on this sort of application. In the absence of some legal right arising from agreement, an employee has no legal right to require or compel an employer to spend money on training the employee for promotion of the sort that is involved in becoming a deputy in the coal industry in Queensland. It is squarely within the managerial prerogative of the Respondent in this case to conclude that the incident that occurred on 4 November 2011 was a sufficient basis to decide that it would no longer voluntarily spend the money that was involved in putting Mr C through the ERZ Controller’s Training Program. It needs to be borne in mind that the Company puts employees through such a course so that it is in a position to promote them when the occasion arises. The decision to promote is still one that rests with the employer on grounds that seem proper and reasonable to it and which would not be amenable to interference other than on the limited principles articulated in the XPT case (Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188). In short it was eminently open to the employer in this case to take the view that the incident caused it to reassess its prior assessment that Mr C was somebody who it was minded to promote to the position of deputy at some point in the future such as to justify the expenditure of shareholders’ funds in the training of Mr C.

[15] Be that as it may, there is no basis for the tribunal to make the order sought by the Applicant for the tribunal to reinstate Mr C to the ERZ Controller’s Training Program.

[16] I note that the Company’s disciplinary investigation concluded that some measure of responsibility should be accorded to Mr S for the incident such as that a warning was issued to him. On the findings I have made Mr S was blameless and it would be unjust for the warning to remain against him. Pursuant to s.595(2) I recommend to the Respondent that it withdraw the warning to Mr S on the basis that he was guilty of no misconduct in relation to the incident on 4 November 2011.

[17] The findings I have made, in one sense, are more serious against Mr C than those made by the company’s investigation. Nevertheless, I commend to the company that it take no further action in relation to the incident the subject of this hearing against Mr C or against the employees who gave evidence on Mr C’s behalf. We do not know the full extent of the subjective circumstances of events passing between the CFMEU group and the new ETU group but they could well cause a different view to be taken of the overall merits. I commend to the Respondent the approach that treats this incident as finished, save that Mr C remains on a level of warning that will see employment terminated forthwith should there be any further recurrence of the sort of conduct that was involved in the incident of 4 November 2011. Mr C should regard himself as being on notice that summary dismissal for serious misconduct would be an inevitable outcome.

VICE PRESIDENT

Appearances:

C Massy for the Construction, Forestry, Mining and Energy Union.

I Humphreys for Anglo Coal (Moranbah North Management) Pty Ltd.

Hearing details:

2012.

Brisbane:

February 17.

Melbourne:

February 23.

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