Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

[2014] FWC 1526

[2014] FWC 1526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2013/4552)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 22 DECEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)], specifically clauses 3.8 and 37.

Introduction

[1] This Decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute, relates to the BMA Enterprise Agreement 2012 (the Agreement) disciplinary action taken against an individual employee, Mr Brendan Whiting.

[2] A conciliation conference was held to resolve the dispute but the matter was not resolved between the parties.

[3] Directions by consent were set for the filing of an agreed question for Arbitration and for each party to file submissions and evidence in the matter.

[4] The parties agreed the question for Arbitration as follows:

“In the circumstances of Mr Whiting’s actions on 20 February 2013, was the disciplinary action, taken by the Respondent, in terms of a “Step 3 - Final Warning”, and an unpaid stand down period of 21 days, justified?”

[5] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.

Relevant legislation and Agreement clauses

[6] The dispute was notified to the Commission pursuant to s.739 of the Act which provides so far as is relevant to this matter:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

...

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so...”

[7] Section 738 of the Act relevantly provides:

“738 Application of this Division

This Division applies if:

...

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

...”

[8] The relevant procedure for dealing with disputes in the Agreement is clause 37 which provides, in part, as follows:

“37 Dispute Settlement Procedure

37.1 It is the intention of the Parties that any disputes arising in relation to the NES; or pertaining to this Agreement; or in relation to the application of the Accommodation Agreements (as referred to in clause 34 of this Agreement); or arising in the course of employment shall be dealt with in accordance with this clause.

...

37.16 Subject to clause 37.15, provided that all the above steps have been exhausted FWA may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter. Where a matter involving an individual Employee progresses to this stage, the Employee will be permitted to attend FWA proceedings on the same arrangements set out in clauses 38.13 and 38.14. If proceedings are brought on more quickly by FWA, the travel plan must be submitted immediately upon the listing of the matter by FWA and before travel commences.

37.17 In the circumstances set out in clauses 14(e) or 14(g), or by agreement under clause 37.15, FWA may:

(a) Conciliate in relation to the matter; or

(b) Where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter.

The parties to the matter are not required to first exhaust the above steps for the purposes of this sub-clause.

37.18 During any conciliation or arbitration proceedings before FWA under this clause 37, either party may choose to be represented by a legal practitioner.

37.19 If FWA issues a decision in writing under this clause:

(a) the decision and reasons for the decision will be provided in writing to the parties; and

(b) the decision shall be binding on the parties to the matter in dispute and persons bound by this Agreement.

37.20 Nothing in clause 37.19 removes the right of either party to a matter in dispute from appealing a decision of FWA, in accordance with the Act.

37.21 If a person who will be involved in any discussions, conferences or proceedings under this clause is not employed or reasonably available at the Mine, then that person may participate by teleconference or other remote means where possible, to expedite the process.

37.22 None of the arrangements in this clause otherwise limit the rights of the Parties at common law or under the Act.

37.23 The outcome of any matter dealt with in accordance with clause 37.10 will be recorded in writing but will not form a precedent for any other matter, either at that Mine or at any other Mine.”

[9] The parties agreed that Commission has jurisdiction to deal with the dispute by arbitration; that is, that the disputes procedure allows for the arbitration of this dispute and that the procedure has been complied with. 1

Background

[10] Mr Whiting is an employee of the Respondent, at Saraji Mine, and was, at the time of the incident, primarily part of the Cable Crew. The Cable Crew sets up electrical cables to power machinery across the mine (e.g. draglines). Mr Whiting has since commenced working in a different Department.

[11] The incident in question occurred when Mr Whiting was required to remove, and replace, high voltage cables on a dragline; specifically dragline 21. At the time Mr Whiting was working with a fellow employee.

[12] Mr Whiting and Mr Cooney (the other employee), in removing the electrical cabling (which has been described as a regular task), were using a technique that required a rope and a tyre.

[13] The previous crew, on the day before, in re-laying the cable over the highwall, on that occasion, constructed a ramp, on which to roll the tyre, to assist in the relaying of the cable.

[14] On the day in question, when Mr Whiting and the other employee were undertaking this task, they used the ramp for operating a vehicle (a loader), which was used to move the high voltage cabling. In manoeuvring the vehicle down the ramp, Mr Whiting lost control of the loader and, it is not disputed, the vehicle slid in an unsafe and uncontrolled manner. 2

[15] The Respondent submitted that once stopped the position of the vehicle was as follows:

“(a) its cab was approximately 5 to 6 meters back from the edge of the highwall;

(b) its front wheels were approximately 3 to 4 meters from the edge of the highwall; and

(c) the spool was hanging over the edge of the highwall.” 3

[16] The incident was the subject of a safety and disciplinary investigation, during which time the Applicant was stood down with pay. On 10 April 2013, the Respondent issued Mr Whiting a Step 3 - Final warning which stated:

“I am of the opinion that the substantiated allegations, as outlined to you in my letter dated 5 March 2013, are in breach of:

• The Saraji Risk Management Procedure



• The Coal Mining Safety and Health Act (1999) Clause 39(2)



• BHP Billiton GLD.010 Fatal Risk Controls; and



• The BHP Billiton Charter Value of Sustainability.

As you are aware, it is a requirement that BMA employees comply with the Coal Mining Safety and Health Act 1999 (Qld) and all BMA policies at all times during their employment.

...

As discussed, I have decided to issue you with a Step 3 Final Written Warning, as well as standing you down for a period of 21 calendar days (unpaid) in accordance with the BMA Guideline to Fair Play Policy and Clause 3.8 of the BMA Enterprise Agreement 2012.”

[17] The relevant provision in the BMA Guideline to Fair Play (the Guideline) that deals with the disciplinary process is as follows 4:

“ 5 Disciplinary Procedure

Except for instances of serious misconduct, the following four step disciplinary process will be applied.

The application of the Just Culture Decision Tree together with the particular circumstances and severity of each case will determine the appropriate disciplinary action Step to be taken with respect of an Employee. The relevant Steps are as follows:

Step 1 An Employee will be verbally counselled by their Supervisor. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative. Written notice of the verbal counselling will be provided to the Employee and a copy placed on the Employee’s file; or

Step 2 An Employee will be counselled by their Supervisor in the form of a formal warning. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative and have the warning confirmed in writing. A copy of the formal warning will be provided to the Employee and also be placed on the Employee’s file; or

Step 3 An Employee will be issued a final warning by their Supervisor or Department Manager or Superintendent. Where requested by the Employee, the Company representatives will conduct the counselling in the presence of an Employee Representative, and have the final warning confirmed in writing and the Employee will be advised that dismissal may result from any further act of misconduct. The Employee can also be placed on a period of suspension without loss of pay for up to 21 calendar days. A copy of the formal warning will be provided to the Employee and placed on the Employee’s file; or

Step 4 Disciplinary action, which is commensurate with the severity and/or frequency of the act(s) of misconduct, will be taken.

As a general guide the disciplinary procedure will work on a sequential basis e.g. first breach results in Step 1, an additional breach within a 12 month period results in Step 2, etc. However, where a Supervisor and Department Manager/Superintendent deem that the circumstances warrant the action, an Employee may be placed on a Step that is not sequential.

Where an Employee, who is in receipt of a warning under Steps 1, 2 or 3 above, receives no further warnings under Steps 1, 2 or 3 in the proceeding 12 month period, the current warning will revert to the previous Step (if any) e.g. Step 3 reverts to Step 2, Step 2 reverts to Step 1, etc.

For the avoidance of any doubt, the provision of a suspension period at Step 3 does not limit the Company’s ability to stand down an Employee without pay during a disciplinary procedure for up to the same period (ie. up to 21 calendar days).”

(emphasis added).

[18] Clause 3.8 of the BMA Enterprise Agreement 2012 provides as follows:

“3.8 Stand Down

(a) The Company may stand down an Employee for:

(1) part or all of a shift in the following circumstances:

(A) Refusal of duty; or
(B) Neglect of duty; or
(C) Misconduct; or

(2) part or all of a shift or shifts if the Employee cannot be usefully employed in the Employee’s usual classification because of industrial action.

(b) In addition to the circumstances outlined above, where a disciplinary procedure provides for a suspension period as part of the range of penalties available, this sub-clause does not limit the Company's ability to stand down an Employee for the duration specified in the relevant disciplinary procedure.

(c) The Company may stand down an Employee during any period in which the Employee cannot usefully be employed because of one of the following circumstances:

(1) a break down of machinery or equipment that has lasted for more than four consecutive working days, if the Company cannot reasonably be held responsible for the break down; or

(2) a stoppage of work for any cause that has lasted for more than fourteen consecutive working days for which the Company cannot reasonably be held responsible.

(d) The Company will take all reasonable steps to minimise the need for standing down Employees under these circumstances, including where practical, carrying out training.

(e) The Company is not required to pay an Employee whilst they are stood down.

(f) Employees who have been stood down under the circumstances outlined in clause 3.8(c) may request to take outstanding leave entitlements. If the Employee does not request to take outstanding leave entitlements or does not have adequate accrued entitlements, they may be stood down without payment.

(g) The continuous service of an Employee who is stood down under this clause is dealt with in accordance with clause 47.2.”

Summary of Applicant’s submissions and evidence

[19] The Applicant had been employed with the Respondent since approximately 31 July 2011. 5 Whilst employed as a part of the Cable Crew, the Applicant’s classification is as a Trades Assistant/Operator. Mr Whiting worked at the Mine prior to the commencement of his employment with the Respondent, having worked for a Mine Contractor. He was in this contractor role for approximately 4 years.

[20] The Applicant stated that prior to this incident; he had not previously been the subject of disciplinary action. 6 Prior to his employment with the Respondent, and after commencing work with the Respondent, Mr Whiting performed some work as a Trainer Assessor, which involved training other employees to work on equipment, including Cable Trucks and Cable Loaders Reels (which were involved in this incident).

[21] The Applicant submitted that Mr Whiting was placed under “significant pressure” from the Respondent to perform the required task on 20 February 2013. This ‘pressure’ was demonstrated in the form of emails and phone calls from Mr Martin Greenhalgh, at the time the Dragline Superintendent at Saraji Mine. The Applicant further stated that Mr Whiting was under “pressure” to complete the job on account of the fact that, “the blast”, which had been scheduled to occur in the previous days, was delayed. This resulted, it was submitted, in Mr Whiting having less time to complete the task, than he otherwise would have.

[22] The Applicant submitted that, on “several occasions” prior to the date of this incident, Mr Whiting, and individual members of the Cable Crew, had made requests to the Respondent for appropriate procedures to be put in place in relation to the performance of this work. 7 The Applicant submitted that the Respondent failed to implement “Safe Work Instructions” (SWI) when requested by employees, but stated that since the incident in question, a document titled “SRM Electrical - Installation of Highwall and Low Wall HV Cables (SRM WI MTE 10 195)”8 (the Electrical SWI) has been made available. Mr Whiting stated that this document had not previously been available, despite requests for such.9

[23] The Applicant conceded that there was an SWI for the performance of the work, however, submitted that the SWI was not current and the Respondent had failed to implement the policy with particular instructions, despite requests from employees for such.

[24] Mr Whiting stated that the Electrical SWI has not previously been implemented, and in particular, risk assessments have not been carried out in compliance with the procedure, but also that no other employee had been disciplined for this failing. Mr Whiting stated that it was his belief that, had the Electrical SWI been in place, the incident would not have occurred.

[25] The Applicant submitted that Mr Whiting, in the absence of an appropriate SWI, performed the work as he “believed appropriate at the time”, in the context of the circumstances requiring the work to be done expeditiously. 10 It was submitted, on behalf of Mr Whiting, that the resulting incident was the consequence of an “unintentional mistake”; deciding to drive the loader down the ramp. Accordingly, it was argued that the incident should have been reviewed in this way under the disciplinary process (that is, under the Respondent’s ‘Just Culture Tree’) and assessed against the prevailing safety documentation at the time.

[26] The Applicant submitted that a relevant factor that lead Mr Whiting to decide to drive down the ramp, was that a ‘bund wall’ (a large mound of dirt designed to prevent vehicles leaving the area or having access to unsafe areas) 11 was not located at the top of the ramp. The Applicant conceded that there was a bund at the bottom of the ramp.12

[27] Following the incident, Mr Whiting volunteered to participate in the relevant investigations, to assist in the implementation of relevant policies and to assist in developing relevant training to prevent a repeat of the incident. These offers were not accepted by the Respondent.

[28] In relation to the disciplinary action taken by the Respondent and whether such action was justified, Mr Whiting accepted that his actions were, in hindsight, unsafe. 13 It was evidence from his demeanour at the hearing that the incident had clearly had a significant impact on him, as had the resulting disciplinary action.

[29] One of the Applicant’s concerns, as to whether the disciplinary action was justified, was that the Applicant and Mr Whiting were excluded from the safety investigation and consideration of the disciplinary process. It was argued this exclusion from the process, and the resulting failure on the part of the Respondent to “explain and justify” the resulting discipline, (together with the fact that the applicable policies were not implemented correctly) made the disciplinary outcome a significant “punitive measure” interpreted as apportioning the total blame for the incident on Mr Whiting.

[30] It was further submitted that had the policies, primarily the “Guidelines to Fair Play” and the “Just Culture Decision Tree”, been properly implemented, the Applicant submitted that, at most, Mr Whiting would have received a Step 1- Warning. It was emphasised that a purpose of the policies is to promote a culture of honesty and to encourage the reporting of incidents, particularly those involving risks to safety. The Applicant argued that by affording blame to employees, by default, defeated this purpose.

[31] In respect of the Respondent’s decision to suspend Mr Whiting for a period of 21 days without pay, the Applicant submitted that the action was “unjust, unreasonable, arbitrary and contrary to policy”. The Applicant accepted that the Agreement provided that the Respondent may withhold payment in these circumstances (as per clause 5 of the disciplinary procedure). However, it was argued that the contractual option of the Respondent to do so, is limited by the proper application of the Respondent’s policies. The Applicant submitted that the policies in question provide that, in the circumstances of a Step 3 - Warning having been issued, the Respondent may impose a period of paid suspension of up to 21 days. The lack of existence of the requested policies, and the reference to paid suspension were submitted to represent a “waiver” of the otherwise clear right in the Agreement to impose an unpaid suspension.

[32] Further, the Applicant submitted that no consideration was made of the lack of guidance, in the absence of the requested SWI, which was notified to the Respondent and the Respondent had failed to act accordingly.

[33] The Applicant contended that the issues for consideration are: did Mr Whiting’s actions amount to a breach of each of the relevant policies and legislation, as relied upon by the Respondent, and if so, did that conduct warrant the disciplinary action (a Step 3 - Final Warning and an unpaid 21 days suspension)? In the event that the Applicant succeeds, the Applicant submitted that the warning should be removed from Mr Whiting’s record and he should be paid for the 21 day unpaid suspension.

Summary of Respondent submissions and evidence

[34] The Respondent argued that Mr Whiting’s decision to drive LWD 222 on the ramp placed himself and potentially others in a position of danger.

[35] The Respondent reasoned that when roads which are intended to be used by rubber-tyred vehicles and mobile equipment are constructed, their design must comply with BMA Standard 032 - Design and Construction of Roads (Standard 032).

[36] Reference was made to the table in clause 3 of the BMA Standard 032 - Design and Construction of Roads, which states that the standard maximum grade for roads, which are to be used by vehicles is “10% (12% absolute maximum)”, although a risk assessment is required to determine the maximum grade when constructing a temporary road. In his investigation into the incident on 20 February 2013, Mr Greenhalgh found that the gradient of the ramp was 28%.

[37] In relation to the level of the gradient, the Respondent argued that “it would or should have been obvious to Mr Whiting, an experienced mineworker, that the gradient of the ramp was almost triple that of the standard maximum for roads at the Mine.” 14

[38] In addition, the Respondent submitted that Mr Whiting was directly informed on two separate occasions that the ramp had been constructed to roll a tyre down it, and not for driving a rubber-tyred vehicle on.

[39] In their submissions, the Respondent provided that it was completely unnecessary and extremely dangerous for Mr Whiting to drive LWD 222 (which weighs approximately 4 tonnes), down the ramp. It was argued that Mr Whiting’s decision to do so was reckless, given that, at the bottom of the ramp, there was the edge of a highwall with a drop of 20 metres. The consequences of engaging in such conduct could have been catastrophic.

[40] It is alleged by the Respondent, that by engaging in such conduct, Mr Whiting was in breach of:

(a) BHP Billiton’s GLD.010 Fatal Risk Controls, which requires vehicles and mobile equipment to be operated in way that is safe and protects personnel from harm;

(b) BMA’s Charter Values, which requires all BMA personnel to prioritise health and safety above all other considerations; and

(c) section 39(2) of the Coal Mining Safety and Health Act 1999, under which coal mine workers must not expose themselves or others to an unacceptable level of risk.

[41] The Respondent conceded that the Incident Cause Analysis Method (ICAM) Investigation identified a number of factors that contributed to the incident. These factors included:

(a) the absence of a bund at the top of the ramp;

(b) the absence of a Standard Work Instruction (SWI) for laying cables over a highwall; and

(c) the requirement to complete re-laying DRE 21’s cable before the end of Mr Whiting’s shift.

[42] The Respondent accepted that, at the time of the incident, there was no current SWI in the Mine’s Safety and Health Management System (SHMS) for laying cable over a highwall. Mr Greenhalgh (the Dragline Superintendent at the time) gave evidence that he recalled Mr Whiting and other members of the Cable Crew, had previously asked for an SWI to be developed for this task.

[43] The Respondent further accepted that it did instruct both Mr Whiting and Mr Cooney that re-laying DRE 21’s cable was a priority. Mr Greehalgh gave evidence that he arranged for Mr Whiting’s shift to commence later in the day, to maximise the time following the blast that Mr Whiting had to re-lay the cable. The Respondent denies the Applicant’s claim that Mr Whiting was under ‘significant pressure’.

[44] The Respondent acknowledged that these factors, relating to the work, were taken into account in disciplining the Applicant, particularly in relation to the decision to issue the Applicant with a Step 3 Final Written Warning rather than to terminate his employment.

[45] It is argued by the Respondent that these contributing factors, although relevant to why the incident occurred, do not justify or excuse Mr Whiting’s conduct. The ICAM Investigation clearly identified that the ‘root cause’ of the incident was Mr Whiting’s failure to identify the hazard of driving LWD 222 on the ramp.

[46] Mr Greenhalgh gave evidence that it is normal practice at the Mine for a person directly involved in an incident to not participate in the ICAM Investigation. This allows the investigation to be undertaken by persons who can objectively review the evidence, and do not have any personal or other interest in the outcome.

The Respondent emphasised that under the Saraji Mine Risk Management Procedure (SRM Risk Management Procedure), every worker at the Mine must use a hazard management tool known as ‘BMA Safe’. The BMA Safe is a process which requires an individual worker to personally identify the potential hazards and the steps or controls that should be implemented in relation to any hazard before undertaking a particular task.

[47] The Respondent submitted as part of the BMA Safe process, each worker has a ‘BMA Safe Handbook’, which contains a checklist that a worker must complete when identifying the hazards and controls in relation to a particular task.

[48] The Respondent submitted that Mr Whiting did not complete a BMA Safe checklist before performing the particular task of laying the cable over the highwall with a rope and tyre.

[49] The Respondent set out that the Saraji Mine Risk Management Procedure (SRM Risk Management Procedure) stated that the BMA Safe process must be completed “prior to the start of all tasks”, and it was insufficient for Mr Whiting to merely complete a single BMA Safe checklist, before re-laying DRE 21’s cable, a job that is made up of a number of different tasks.

[50] The Respondent submitted that workers at the Mine are trained in the BMA Safe process, as well as the other hazard Management procedures at the Mine, during the BMA Core Induction. The Respondent provided evidence that Mr Whiting’s training record demonstrated that, at the time of the incident, he had completed the BMA Safe Core Induction, and was otherwise trained in BMA Safe and other risk management procedures.

[51] The Respondent submitted that workers are also required under the SRM Risk Management Procedure to complete a Job Step Analysis (JSA). Section 6.2.1, ‘When Should You Complete a JSA?, in the SRM Risk Management Procedure, states that a Job Step Analysis (JSA), which is a more detailed risk assessment, should be completed when there is a change to:

• The current method of doing the work



• The immediate work environment where the activity is taking place



• The method of carrying out the activity.

[52] The Respondent argued that Mr Whiting’s decision to drive LWD 222 on the ramp, in circumstances where the ramp was constructed for the purposes of rolling a tyre down it, was a significant change to the intended method of work. As such, Mr Whiting should also have undertaken a JSA before driving the LWD 222.

[53] The Respondent submitted that Mr Whiting did not, as required by the SRM Risk Management Procedure, complete a BMA Safe Checklist before commencing the particular task of laying the cable over the highwall with a rope and tyre, nor did he undertake a JSA before driving on the ramp.

[54] Following the investigation into the incident, Mr Greenhalgh gave evidence that he applied the “Just Culture Decision Tree” process in determining what, if any, disciplinary action should be taken against Mr Whiting. The “Just Culture” process is set out in BMA’s “Guideline to Fair Play” (the Guideline).

[55] The Respondent explained that the “Just Culture” process provides a fair and constructive alternative to the two extremes of punitive or blamefree cultures. A “just” culture balances the need to have a non-punitive learning environment with the need to hold persons accountable for their actions.

[56] In relation to balancing the need for accountability with the need for a non-punitive learning environment, the Respondent noted that:

(a) although it believes it could have terminated Mr Whiting’s employment as a result of his actions, the Respondent nonetheless decided to issue a less severe disciplinary action;

(b) by not terminating Mr Whiting’s employment, the Respondent is providing Mr Whiting with an opportunity to learn from his mistake; and

(c) part of the action taken in relation to Mr Whiting was a requirement for Mr Whiting to undertake re-training on hazard awareness following his period of suspension.

[57] The Applicant claimed that the Respondent breached the “Just Culture” process by not issuing, or at least considering, the disciplinary steps provided by the BMA Guideline for Fair Play in sequential order.

[58] The Respondent argued that this position clearly ignored the express words of the Guideline, which says:

“As a general guide the disciplinary procedure will work on a sequential basis e.g. first breach results in Step 1, an additional breach within a 12 month period results in Step 2, etc. However, where a Supervisor or Department Manager/Superintendent deem that the circumstances warrant the action, an Employee may be placed on a Step that is not sequential.”

(emphasis added)

[59] The evidence of Mr Greenhalgh is that he and Mr Simpson (Production Manager) considered what was the appropriate disciplinary action to take and decided on a Step 3 Final Warning with a suspension.

[60] The Respondent argued that Mr Whiting’s decision to drive LWD 222 on the ramp was a serious error of judgment, and was a risk that should have been identified in the circumstances.

[61] The Respondent submitted that the 3 week unpaid suspension was permitted by both the Guideline and the Enterprise Agreement, and was otherwise warranted in the circumstances given the gravity of Mr Whiting’s conduct.

[62] In relation to the additional imposition of the 3 week unpaid suspension, the Applicant claimed that the decision to suspend Mr Whiting without pay was contrary to the policies. However, whilst the Guideline indicates that the suspension that can accompany a Step 3 Final Warning is a paid suspension, the Guideline also permits a period of unpaid suspension as follows:

“For the avoidance of any doubt, the provision of a suspension period at Step 3 does not limit the Company’s ability to stand down an Employee without pay during a disciplinary procedure for up to the same period (i.e. up to 21 calendar days).”

[63] The Applicant claimed that the period in which the Respondent can stand down an employee without pay for misconduct pursuant to clause 3.8(a) of the Enterprise Agreement is limited by the terms of clause 3.8(a) to a maximum of one shift. However, this position ignores clause 3.8(b) of the Enterprise Agreement, which provides:

“In addition to the circumstances outlined in [clause 3.8(a)], where a disciplinary procedure provides for a suspension period as part of the range of penalties available, this sub-clause does not limit the Company’s ability to stand down an Employee for the duration specified in the relevant disciplinary procedure.”

Consideration

[64] The question for consideration of this Commission is, was the disciplinary action issued by the Respondent (of a Level 3 Warning and a period of a 3 week unpaid suspension) warranted in all of the circumstances of Mr Whiting’s actions.

[65] It is not in dispute that a serious incident occurred, or that the potential consequences of the incident were most serious; with potential loss of life. Mr Whiting accepted that he should not have driven the loader on the ramp and that his decision to do so was unsafe.

[66] The facts of the matter are not significantly in dispute between the parties. Those facts which are in dispute are generally recognised (for example, the actual incline of the ramp is in dispute, but it is not in dispute that it was otherwise steeper than normal).

[67] The Respondent’s case is that, in performing his tasks on the day in question, Mr Whiting changed the method by which he was going to perform the tasks. The Respondent’s submission is that he should have undertaken a further job safety analysis, and had he done so would have identified that the ramp was too steep to operate the loader safely.

[68] It has to be questioned why the ramp that was constructed prior to Mr Whiting attending to complete the work was allowed to remain, the gradient was well in excess of the prescribed angle. Alternatively, why wasn’t Mr Whiting forewarned about the steeper gradient, given that it appears that the judging of the angle of an earth ramp by mere visual inspection is not straightforward? However, it is also reasonable to query that that even if the ramps gradient was not above the maximum standard, would the decision to drive the loader on the ramp near the highwall ever have been considered safe?

[69] The Applicant’s case is that it is accepted that Mr Whiting should not have done what he did on the day and he acknowledged that his actions, in operating the loader, contributed to the incident. The Applicant’s submission is however that he was put under pressure from the Respondent to conduct the task as quickly as possible and that he was not given proper guidance, through a specific SWI, in conducting the task; a specific SWI had been requested on numerous occasions in relation to the task. The Applicant also submitted that some procedural flaws affected the Respondent’s consideration of this matter, in particular the ICAM investigation.

[70] Mr Whiting gave evidence in this matter in a very honest and straightforward matter. None of his evidence was given in a self-serving fashion; he conceded matters that were against him. Mr Whiting is clearly a dedicated and conscientious employee. It was clear from observing the evidence and demeanour of Mr Whiting as a witness that the incident and the resulting disciplinary action has had a serious impact on Mr Whiting personally, although no physical harm resulted. It was never suggested by the Respondent that Mr Whiting was other than a highly valued employee. The context of this incident is that an otherwise good employee was involved in a serious incident and a Step 3 Warning was placed on his personnel record as a result.

[71] The implications of the Step 3 warning are such that should any incident occur in future with Mr Whiting, this serious warning is a matter which may be taken into account and may affect Mr Whiting’s future employment with the Respondent. Given the deliberate addition of the 3 week unpaid suspension, Mr Whiting has also suffered financial consequences.

[72] I am satisfied that the ramp was steep and should not have had a loader operated on it. I am however also satisfied that, despite requests from various experienced employees, the Respondent took no steps, prior to this incident, to implement an up-to-date SWI in relation to the required procedures for the required work. Given that whilst the Respondent submitted that the task involved was common and a “well-established” procedure was known, it is somewhat surprising that employees had requested specific safety instructions in relation to it. The Respondent took, on the evidence, no steps to consider the matter further or to provide an SWI. 15 This failure to respond did, in some part, contribute to the incident.

[73] It is relevant that the outcome of the ICAM investigation included a finding that a contributing factor to the incident was the absence of an SWI for laying cables over a highwall. The Respondent, in submissions, downplayed the effect of this contributing factor, arguing that the Respondent cannot have an SWI for every possible task or scenario that may arise. This reasoning was undermined by the submissions of the Respondent that the procedure in question for work that was common and potentially high risk.

[74] It is also relevant that Mr Whiting’s decisions were taken in the context of the need for Mr Whiting to complete this work in the specified period of time. This finding is reflected in the ICAM report finding that a contributing factor to the incident was the time requirements to complete the tasks.

[75] Mr Whiting’s evidence was that he assessed the situation prior to commencing upon task, although I note that Mr Whiting accepted that with the benefit of hindsight his conclusions were incorrect.

[76] It is relevant to the considerations that the Respondent’s decision-maker, Mr Greenhalgh, conceded that in making his assessment of the disciplinary outcome he did not take into account Mr Whiting’s total honesty in relation to the incident and his immediate concession that his actions were not without question. 16 This had not been given any weight by the Respondent, in assessing the disciplinary action handed down to Mr Whiting.

[77] The circumstances of the incident are that on the day, there was an atmosphere of urgency or pressure for Mr Whiting to complete the laying of cable within a specific time. This urgency was brought about by delays to previous blasts. Mr Whiting, in sensing this urgency or pressure, was trying to lay the cable as quickly as he possibly could to meet the expectations placed upon him by his manager’s instructions. Mr Whiting accepts that his decisions as to how to perform the work at that time lead him into error and that he should not have continued. On the evidence, the Respondent contributed to the incident by creating a sense of urgency for the work and by not, despite numerous requests from employees, implementing a specific SWI in relation to the task.

[78] The manner in which of the ICAM investigation was undertaken is also relevant, as the associated findings formed part of the decision making process for the determination. It is not for this Commission to interfere with the Respondent’s workings and in any event nothing in this matter turns upon it.

Conclusion

[79] I find that the disciplinary action taken, in terms of both the Step 3 Warning and the 21 day unpaid suspension together, was not justified. In making this finding it is relevant that the Respondent was aware, prior to the incident, that there was no specific SWI in place. The Respondent did not (on the evidence of Mr Greenhalgh) take into account Mr Whiting and other employees’ consistent request for this.

[80] Accordingly for the aforementioned reasons, the question for arbitration is answered as follows:

In the circumstances of Mr Whiting’s actions on 20 February 2013, was the disciplinary action, taken by the Respondent, in terms of a “Step 3 - Final Warning”, and an unpaid stand down period of 21 days, justified?

ANSWER: No.

[81] The Respondent’s Step 3 Warning on the seriousness of the incident is warranted. This was a significant penalty, for (on the evidence) a conscientious and responsible employee, who has had his employment history significantly impacted by this incident. The Respondent’s conduct can be critiqued in terms of the pressure applied to complete the work, the ramp gradient, the deficiencies in the ICAM and the later provision of the SWI.

[82] Taking into account all of the facts and circumstances, the imposition of the three week unpaid suspension was not warranted as a further punitive measure. Whilst the Applicant avoided dismissal, and the Step 3 Final Warning declines with the passage of time, the final warning alone has been an appropriate penalty. The addition of the three week unpaid suspension was not justified, taking into account all matters.

[83] Accordingly, the repayment of three weeks’ remuneration at the rate applicable at the time of the suspension, is required within 21 days.

[84] I Order accordingly.

COMMISSIONER

 1   Applicant outline of submissions at paragraph 1; Respondent outline of submissions at paragraph 4.

 2   Applicant outline of submissions at paragraph 12(j); Respondent outline of submissions at paragraph 12.

 3   Respondent outline of submissions at paragraph 13.

 4   Statement of Martin Greenhalgh attachment MG-16

 5   Statement of Brendan Whiting at 1.

 6   Statement of Mr Brendan Whiting at 10.

 7   Statement of Brendan Whiting at 73-77.

 8   Statement of Brendan Whiting at annexure BW12.

 9   Statement of Brendan Whiting at 78.

 10   Applicant’s outline of submissions at 19.

 11   Statement of Brendan Whiting at 84.

 12   Applicant’s outline of submissions at 20.

 13   Applicant’s outline of submissions at 24;

 14   Respondent outline of submissions at paragraph 18.

 15   Respondent’s closing submissions at paragraph 13 and Exhibit #3 at paragraph 37.

 16   Transcript, PN1015.

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