Ms Anna McKenzie v Liddell Colleries Pty Limited

[2017] FWC 590

[2017] FWC 590

FAIR WORK COMMISSION

DECISION

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

Ms Anna McKenzie
v
Liddell Colleries Pty Limited
(C2016/1877)

Coal industry
COMMISSIONER SAUNDERS	NEWCASTLE, 27 JANUARY 2017

Dispute under the disputes settlement procedure in an enterprise agreement [s186(6)] – dispute concerning warning and suspension without pay

[1] On 16 June 2016, Ms Anna McKenzie, an Operator employed by Liddell Collieries Pty Limited (Liddell) to work at the Liddell open cut coal mine, was involved in a near miss incident when she drove a 230 tonne haul truck within about 3.3m of another haul truck being driven by Ms Bronwyn Noone. Liddell conducted an extensive investigation into the incident and then suspended Ms McKenzie without pay for two weeks and issued her with a final written warning. Ms McKenzie contends that the disciplinary action taken by Liddell is too harsh in the circumstances. To that end, she raised a dispute with Liddell. Following an unsuccessful conciliation, I arbitrated the dispute pursuant to the powers conferred on me by the dispute settlement clause of the Liddell Open Cut Enterprise Agreement 2013 (Enterprise Agreement) and s.739 of the Fair Work Act 2009 (Cth) (the Act).

[2] Evidence was given in support of Ms McKenzie’s case by Mr Jeff Drayton, Vice President of the CFMEU, Mining & Energy Division, Northern Mining & NSW Energy District, Mr Michael Carroll, Operator employed at the Liddell open cut mine, and Ms McKenzie. Liddell called evidence from Mr Daniel Brogan, Mining Manager, Ms Bronwyn Noone, Operator employed by One Key Resources, a labour hire organisation, Mr David Foster, Operations Manager, Mr Luke Hannigan, Mining Supervisor, and Mr Edward Kleinman, Operator.

The Enterprise Agreement

[3] There is no dispute that Ms McKenzie is, and was at the time of the incident on 16 June 2016, covered by the Enterprise Agreement.

[4] Clause 12 of the Enterprise Agreement governs the procedure for the resolution of certain types of disputes. It provides as follows:

“12. Disputes Procedure

12.1 In the event of any dispute arising in relation to the NES, the interpretation of this Agreement or any dispute arising in the course of employment (including a dispute arising under the Company’s Corrective and Disciplinary Policy or the Absenteeism Guideline annexed to this Agreement), there shall not be any stoppages of work either by the Company or Employees. Where such a dispute is not settled, it shall be processed in accordance with this clause.

12.2 Procedure:-

a) When a dispute arises, the matter shall in the first instance be discussed between the Employee and their supervisor. If the matter remains unresolved;

b) It shall be referred in writing on the Company’s Issue Resolution Form by the person(s) raising the dispute for discussion involving the Employee, the Employee’s nominated representative, and the Employee’s supervisor. If the matter remains unresolved;

c) It shall be referred for discussion between the Employee, the Employee’s nominated representatives and the Department Manager (or representative). If the matter remains unresolved;

d) It shall be referred for discussion between the Employee, the Employee’s nominated representatives and the nominated senior Company official. If the matter remains unresolved;

e) The matter may be referred by either party to the FWC or another agreed mediator for mediation, conciliation and, only if agreed by the parties, for arbitration.

f) However, where a dispute is in relation to the Company’s Corrective and Disciplinary Policy or Absenteeism Guideline, and it is unresolved after step (d), the matter may be referred by either party to the FWC for arbitration. The parties agree that the Company is not, and will not be, restricted or prevented from implementing the matter subject to the dispute, pending the outcome of any arbitration.

12.3 By agreement between the parties any or all of the steps (b), (c), or (d) may be by-passed in the interests of speedy resolution of the dispute.

12.4 Safety issues that arise in the course of employment will be processed in accordance with Company Policies and Procedures.”

[5] In this case, there is no contest between the parties and I am satisfied on the evidence that the dispute between Ms McKenzie and Liddell the subject of these proceedings:

(a) arose in the course of Ms McKenzie’s employment, with the result that it is within the scope of disputes which may be dealt with in accordance with clause 12 of the Enterprise Agreement;

(b) did not proceed through each of the steps set out in the disputes settlement clause, but the parties agreed to by-pass such steps in the interests of a speedy resolution of the dispute; and

(c) is in relation to Liddell’s Corrective and Disciplinary Policy and remained unresolved after conciliation, with the result that I have the power to arbitrate the dispute.

[6] Liddell’s Corrective and Disciplinary Policy is set out in annexure I to the Enterprise Agreement. The relevant parts of that policy are in the following terms:

“Purpose

To provide all employees with guidelines on the procedure that will be followed when an employee breaches any company policies, rules or directives…

Scope
…

Employees and contractors are required to conduct themselves and behave in a manner which is consistent with their employment and obligations at law [“required standards”]. This includes compliance with the Employee’s contract of employment, the applicable industrial instrument, Company policies, procedures, rules and reasonable instructions…

Principles

Where an Employee breaches a required standard they are liable to disciplinary action under this Policy…

For the purposes of this policy there are three types of breaches listed below and some indicative examples of each: [minor breach, serious breach and major breach]

…

Procedure

• This procedure sets out guidelines about how breaches of behavioural expectations will ordinarily be dealt with.



• Breaches will initially be dealt with by an employee’s immediate supervisor or manager (e.g. an operator’s supervisor, a supervisor’s superintendent etc…). Where appropriate, disciplinary matters will be resolved at the workplace level.



• An employee may request the presence of a representative during any discussions taking place under the disciplinary procedure.



• The level of investigations surrounding any serious or major breach will be determined by the Department Manager, after giving consideration to the nature and severity of the breach.



• The Company may determine that investigations involving breaches of safety or environmental rules or procedures will include, where appropriate, relevant specialist safety or environmental personnel.



• In all cases employees should be given the ability to respond to all and any allegations or breaches.



• While a decision in respect to a serious or major breach is being made, an employee may be suspended on full pay for a period of up to 72 hours to allow investigation, discussion and representation. The Department Manager, in consultation with the Operations Manager, will determine when sufficient information is available to make a decision on the appropriate disciplinary action to be taken.



• Breaches which require reporting under the Coal Mines Health and Safety Act or other government regulation or legislation may be subject to investigation and recommendation by the relevant government inspector.



• Disciplinary action following a serious or major breach may include but is not limited to written warning, suspension without pay, removal from roll, dismissal on notice or summary dismissal.



• This policy does not prevent the taking of any other additional action available under employees’ awards, enterprise agreements or conditions of employment e.g. pay adjustment for time not worked.



• Warnings arising from Minor or Serious breaches will expire after a set time period, but should another breach occurr during the period of a warning, then all current warnings will have the time limits extended to the most recent. Expired warnings will not be removed from an employee’s personal file.

Referral to Employee Assistance Program (EAP)

• In situations where it is believed the behaviour of the employee may be a result of being aggravated by a personal problem they maybe refer [sic] them to the EAP program...”

[7] Attached to the Corrective and Disciplinary Policy is a diagram which shows the types of action which may be taken by Liddell, depending on the seriousness of the breach. For example, in the event of a serious or major breach the diagram includes the following potential disciplinary action:

“Formal Level 3

• If appropriate, suspend/stand down Employee pending investigation;



• If necessary, conduct investigation of the incident resulting in one or more of the following:



• No further action; or



• A final written warning to employee, copy to employee’s file; or



• The final written warning plus explain that a further breach will result in a decision to terminate the employee; or



• Stand down the Employee without pay; or



• Termination of employee’s contract of employment with Company with or without notice.

Operations Manager”

Role as private arbitrator

[8] The dispute settlement procedure in the Enterprise Agreement (clause 12) does not contain any limitation of the type envisaged in s.739(3) of the Act on the Commission’s power to arbitrate a dispute which falls within the scope of disputes which may be arbitrated pursuant to clause 12. I therefore have a broad discretion to arbitrate the dispute under clause 12. 1 However, I must not make a decision that is inconsistent with the Act or the Enterprise Agreement.2

[9] In order to ensure that I do not make a decision that is inconsistent with the Enterprise Agreement, I need to properly construe the discretionary power conferred on Liddell by the Enterprise Agreement to take disciplinary action against an employee in certain circumstances and then consider whether Liddell acted within the scope of that discretionary power in disciplining Ms McKenzie.

[10] The Enterprise Agreement confers on Liddell a discretionary power to take disciplinary action against an employee in circumstances where the employee has engaged in conduct which constitutes a “serious or major breach” of the “required standard” (as those expressions are defined in the Corrective and Disciplinary Policy). So much is clear from the following parts of the Corrective and Disciplinary Policy, which policy is incorporated 3 into the Enterprise Agreement:

“…Where an Employee breaches a required standard they are liable to disciplinary action under this Policy…

Disciplinary action following a serious or major breach may include but is not limited to written warning, suspension without pay, removal from roll, dismissal on notice or summary dismissal…”

[11] Guidance as to the construction of industrial instruments such as the Enterprise Agreement may be obtained by reference to principles which courts apply to the construction of commercial contracts. 4 A number of intermediate appellate courts have considered in recent years how discretions conferred on an employer under a contract of employment or workplace policy should be construed, including in circumstances where an employer has an apparently unlimited discretionary power to make a bonus payment to an employee. It is apparent from those decisions that such a discretion must not be exercised capriciously, arbitrarily or unreasonably, and the discretion must be exercised honestly and conformably with the purposes of the contract.5 The requirement not to exercise the discretion unreasonably is to be construed in the sense of Wednesbury6 unreasonableness,7 so that the exercise of the discretion will not be unreasonable unless no reasonable employer could ever exercise the discretion in that way.

[12] Consistent with these decisions concerning the proper construction of a discretionary power in a contract or relevant policy, I am of the view that the discretionary power conferred on Liddell by the Enterprise Agreement to take disciplinary action against an employee in circumstances where the employee has engaged in conduct which constitutes a “serious or major breach” of the “required standard” is, on its proper construction, limited, in that Liddell must exercise its discretion honestly and conformably with the purposes of the Corrective and Disciplinary Policy and must not exercise its discretion capriciously, arbitrarily or unreasonably (in the Wednesbury sense). If I am satisfied that Liddell exercised its discretion in accordance with those obligations when it imposed disciplinary action on Ms McKenzie in connection with the near miss incident on 16 June 2016, then I could not determine the present dispute by imposing, or requiring Liddell to impose, different disciplinary action on Ms McKenzie, because to do so would involve me making a decision that is inconsistent with the Enterprise Agreement.

[13] The situation would be different if the Corrective and Disciplinary Policy was not incorporated into the Enterprise Agreement. If the Enterprise Agreement was silent in relation to the issue of disciplinary action, then there would be no risk of making a decision that was inconsistent with the Enterprise Agreement. In those circumstances, the question of disciplinary action would be a matter of managerial prerogative and the Commission as the arbitrator of such a dispute would not interfere with the employer’s decision unless it was unjust or unreasonable. 8 The decision may be unjust if, for example, the employee did not engage in the misconduct alleged by the employer. The decision would be unreasonable if no reasonable person in the position of the employer could have made the decision.9 This test of unreasonableness is indistinguishable from Wednesbury unreasonableness.

[14] An issue arose between the parties in relation to whether I could, or should, in my role as private arbitrator of the dispute, have regard to whether the disciplinary action was harsh in all the circumstances. It was submitted on behalf of Ms McKenzie that I could and should have regard to the harshness of the disciplinary action, including the alleged disproportionality between the disciplinary action and the seriousness of the incident, the mitigating factors associated with the conduct, the alleged failure by Liddell to comply with the Corrective and Disciplinary Policy, Ms McKenzie’s remorse, the length and quality of Ms McKenzie’s employment with Liddell, and alleged inconsistent disciplinary action taken by Liddell. In support of those submissions Ms McKenzie relied on a range of decisions by various members of the Commission, including unfair dismissal decisions.

[15] There is an obvious difference between the role of the Commission in deciding an unfair dismissal application under the Act and the role of the Commission in acting as an arbitrator to resolve a dispute concerning disciplinary action in accordance with the disputes settlement clause in an Enterprise Agreement. In the former type of case, the Commission is obliged by the terms of s.387 to consider whether the dismissal was harsh. In the latter type of case, the terms of the Enterprise Agreement may, or may not, expressly require the Commission to have regard to the harshness of particular disciplinary action when arbitrating such a dispute under a disputes settlement procedure. In the present case, there is no such express term in the Enterprise Agreement. However, that does not, in my view, mean that considerations of harshness are irrelevant. In my opinion, it is relevant in the present dispute to have regard to whether the disciplinary action imposed on Ms McKenzie by Liddell was harsh as part of my determination of whether Liddell acted within the limits of its discretionary power to take disciplinary action. The question of harshness arises in this way - Liddell will have acted outside the scope of its discretionary power to take disciplinary action against Ms McKenzie if it took disciplinary action against her that no reasonable employer could ever have taken because it was so harsh in the circumstances. That is obviously a “high bar” for any applicant to get over.

Did Ms McKenzie breach a “required standard”?

[16] Liddell submits that coalmines are inherently dangerous workplaces, which necessitates that employees be held to a high standard in respect of the conduct and compliance with applicable safety and statutory requirements. In respect of this matter, Liddell submits that these relevantly include:

(a) a general duty at law to exercise reasonable care not to cause injury or loss in the course of performing work; 10

(b) duties under s.28 of the Work Health and Safety Act 2011 (NSW) to take reasonable care for one’s own health and safety and the health and safety of other persons, and to comply with reasonable instructions given by a person conducting a business or undertaking; and

(c) obligations under Liddell’s safety policies and procedures, including the Transport Management Plan which expressly requires all vehicles to be driven in a safe and sensible manner, having due regard for other vehicles, the road and weather conditions existing at the time.

[17] Liddell contends that Ms McKenzie failed to meet these standards by the manner in which she drove a haul truck on the morning of 16 June 2016. In particular, Liddell contends that Ms McKenzie:

(a) failed to use her right hand indicator when turning off the haulage road and onto an unused area of the dump; and

(b) failed to drive in a safe manner by driving in very close proximity to Ms Noone’s truck when turning off the haulage road and onto an unused area of the dump.

[18] In final submissions, Ms Farrah, on behalf of Liddell, agreed that the disciplinary action taken against Ms McKenzie was only based on the near miss incident, with the result that I do not need to consider the incident on 15 June 2016 in which Ms McKenzie drove over a scrap tyre while operating a dump truck.

[19] There is little dispute between the parties in relation to the movement of Ms McKenzie’s truck and Ms Noone’s truck in connection with the near miss incident on the morning of 16 June 2016. That is because Liddell uses monitoring technology known as Leica to track each heavy vehicle at the mine so the utilisation and productivity of each vehicle can be monitored in real time. Leica records a range of information including GPS location, throttle, speed and gear selection, and its data refreshes every five seconds. Evidence from the Leica system was tendered in support of Liddell’s case.

[20] The Leica records show that Ms McKenzie dumped the load in her haul truck at a dump known as RL60 and then proceeded to drive her haul truck back towards a digger. On the way heading back towards the digger, Ms McKenzie turned right off the haulage road to the side of the RL60 dump. At the time that Ms McKenzie was turning off the haulage road Ms Noone was driving her truck slowly from the unused area of the dump to return to the haulage road on which Ms McKenzie was driving. After moving forward towards the haulage road, Ms Noone stopped her truck and then began moving forward again at a slow speed. Ms McKenzie drove her truck across in front of Ms Noone’s truck (which had not yet entered back onto the haulage road) for the purpose of leaving the haulage road. Ms Noone believed that Ms McKenzie’s truck was likely to collide with her truck, so Ms Noone quickly put her truck into reverse and reversed (at full throttle) to avoid a dangerous collision. In the result, Ms McKenzie’s truck came within 3.3 metres of Ms Noone’s truck. Ms McKenzie had sped up to 19.16 km/h at the time her truck came within 3.3 metres of Ms Noone’s truck.

[21] Shortly after the near miss incident at about 5:30 am on 16 June 2016, the following communications were recorded on the Liddell two-way radio system:

“Ms Noone:

Unknown:

Mr Kleinman:

Ms Noone:

Mr Kleinman:

Are you all right there Anna [McKenzie], like, fair dinkum!

[Whistle sound]

Are you right there 304 [Ms McKenzie]?

Yeah, I’d like to know the same thing actually.

Yeah, it was pretty close.”

[22] Ms McKenzie and Ms Noone also communicated the following messages to each other on the Leica system shortly after the near miss incident:

“Ms McKenzie:

Ms Noone:

Ms McKenzie:

Ms Noone:

Ms Noone:

Ms McKenzie:

Sorry couldn’t see a thing the air con doesn’t work in here and windos (sic) are fogged up.

Yeah well park up that was way to xlose (sic) for me thanks.

That’s what I was doing thanks.

Don’t get smarr (sic)

If u can’t see don’t drive it ur unreal (sic).

I’m not. I said sorry and told u what happened (sic).”

[23] Neither Ms McKenzie nor Ms Noone reported the near miss incident to Liddell. They both now concede they should have done so.

[24] As part of its investigation into the incident Liddell considered whether Ms McKenzie may have deliberately decided to drive her truck at, or in close proximity to, Ms Noone’s truck in an attempt to intimidate Ms Noone. A prior disagreement between Ms McKenzie and Ms Noone was part of the reason why Liddell considered this issue. Liddell concluded that it could not be satisfied that Ms McKenzie deliberately drove her truck at, or in close proximity to, Ms Noone’s truck. As a result, Liddell imposed its disciplinary action on Ms McKenzie on the basis that she did not deliberately drive her truck at, or in close proximity to, Ms Noone’s truck.

[25] Because the disciplinary action taken by Liddell was not based on any finding that Ms McKenzie deliberately drove her truck at, or in close proximity to, Ms Noone’s truck, I do not need to decide that issue or the related question of why Ms McKenzie was turning her truck off the haulage road and onto the unused area of the dump.

[26] Mr Brogan reviewed the Leica records as part of his investigation into the incident and formed the view that it was likely Ms McKenzie’s truck would have collided with Ms Noone’s truck if Ms Noone had not reversed her truck in the way that she did. The records Mr Brogan relied upon to form that opinion formed part of Liddell’s evidence in these proceedings. I have reviewed those records. I agree with Mr Brogan’s opinion that it is likely there would have been a collision between the two trucks had Ms Noone not reversed her truck at the time she did.

[27] There is a dispute between the parties in relation to whether or not Ms McKenzie put her right hand blinker on before she turned off the haulage road and onto the unused area of the dump. Ms McKenzie says she did use her right hand indicator to indicate that she was turning off the haulage road. Ms Noone denies that Ms McKenzie’s right hand blinker was on at the time. Liddell examined the blinker on Ms McKenzie’s truck and satisfied itself that it was functioning properly at the time of the incident. No challenge was made to that finding in these proceedings. Liddell also made enquiries about whether any other person at the mine may have witnessed the incident. It discovered that Mr Kleinman, an Operator, was a witness to the near miss incident. Mr Kleinman gave evidence in these proceedings for Liddell and was cross examined by Ms McKenzie’s representative.

[28] Mr Kleinman provided a handwritten witness statement to Liddell on 16 June 2016 in relation to the near miss incident. In that statement Mr Kleinman described what he observed in the following way:

“Whilst I was tipping a load of reject on the 60 RL I noticed truck 353 [Ms Noone] parked on my right and had just started up after crib. I had tipped my load and was moving forward. At that time I seen a truck coming from my left which was [Ms McKenzie]. I stopped and truck 353 [Ms Noone] was still moving forward but very slowly to let truck 304 [Ms McKenzie] pass. But then for no apparent reason truck 304 [Ms McKenzie] cut in front of truck 353 [Ms Noone] with no indication or warning, forcing 353 [Ms Noone] to brake suddenly. It was extremely close. Operator in 353 [Ms Noone] had words with 304 [Ms McKenzie] but no answer. 304 truck continue to further 100 mtr before pulling up. I call 304 [Ms McKenzie] but no reply, so I got out of my cab with a torch to see if driver was ok. The driver was out of their cab on the deck. Seem ok because got back in and drove away.”

[29] During his oral evidence Mr Kleinman stated that he had a very good view of the incident from where he was and he was looking the whole time at Ms McKenzie’s truck as it was coming down the haulage road. Mr Kleinman was also confident that he would have seen Ms McKenzie’s blinker if she had put it on.

[30] I accept Mr Kleinman’s evidence. He gave it in a forthright manner. He had a good recollection of the incident. I consider Mr Kleinman to be an impartial and reliable witness. On the basis of his evidence, I find, on the balance of probabilities, that Ms McKenzie did not have her right hand blinker on when she turned off the haulage road in front of Ms Noone’s truck.

[31] By failing to use her blinker when turning right off the haulage road in front of Ms Noone’s truck, I am satisfied that Ms McKenzie failed to comply with her obligation under the Transport Management Plan to drive her vehicle in a “safe and sensible manner, having due regard for other vehicles” and her duty under the Work Health and Safety Act 2011 (NSW) to take reasonable care for one’s own health and safety and the health and safety of other persons. I am also satisfied that Ms McKenzie failed to comply with those obligations when she drove her truck in close proximity to Ms Noone’s truck and thereby almost caused the two vehicles to collide. It follows that Ms McKenzie breached a “required standard” within the meaning of the Enterprise Agreement.

[32] I do not accept Ms McKenzie’s argument that she was not at fault for the near miss incident because her windscreen was fogged up at the time. Ms McKenzie accepted in her oral evidence that she could see sufficiently to operate safely 11 and the way she drove was inappropriate.12

Was any breach by Ms McKenzie of a “required standard” a “serious or major breach”?

[33] Ms McKenzie contends that her conduct in relation to the near miss incident on 16 June 2016 falls within the category of a “serious breach – level 2”. Liddell contends that Ms McKenzie’s conduct constitutes a “major breach – level 3”.

[34] Little turns on whether Ms McKenzie’s conduct is properly classified as a “serious breach” or a “major breach” because a breach of either kind entitles Liddell, in accordance with the terms of the Corrective and Disciplinary Policy, to take disciplinary action of the kind it took against Ms McKenzie in relation to the near miss incident on 16 June 2016.

[35] I find that Liddell was correct to classify Ms McKenzie’s conduct as a “major breach – level 3”, for the following reasons:

(a) Ms McKenzie’s conduct on 16 June 2016 seriously endangered both herself and Ms Noone. Had Ms Noone not reversed her truck at the time and rate at which she did, it is likely that Ms McKenzie’s truck would have collided with Ms Noone’s truck. Ms McKenzie was driving her truck at a speed of 19.16 km/h at the time she passed Ms Noone’s truck. At that speed a collision between two very large dump trucks could have resulted in very serious personal injury or death to either or both of Ms McKenzie and Ms Noone. I am therefore satisfied that Ms McKenzie’s conduct falls within the definition of “major breach” in the first bullet point on page 47 of the Enterprise Agreement; 13 and

(b) Because Ms McKenzie’s conduct constituted a breach of her obligations under the Transport Management Plan and such conduct resulted in serious danger to her, Ms Noone, and the trucks being driven by each of them, the “indicative actions of breach” requirements for a “major breach” are satisfied. 14

Liddell did not exercise its discretion arbitrarily, capriciously or unreasonably

[36] Having found that Ms McKenzie’s conduct on 16 June 2016 constituted a “major breach” of the “required standards”, I am satisfied that Liddell had the right under the terms of the Enterprise Agreement to exercise its discretion to take a range of disciplinary action against Ms McKenzie, including suspending her without pay and/or giving her a written warning. I will now consider whether Liddell exercised that discretionary power within the limits of the power, as discussed in paragraph [12] above.

[37] There is no suggestion that Liddell exercised its discretionary power to take disciplinary action against Ms McKenzie arbitrarily, capriciously or other than honestly and conformably with the purposes of the Corrective and Disciplinary Policy. Accordingly, the issue is whether Liddell exercised the power unreasonably (in the Wednesbury sense).

[38] The starting point is the investigation Liddell took in relation to the near miss incident on 16 June 2016. I am satisfied that Liddell’s investigation was thorough, fair and reasonable. Liddell afforded Ms McKenzie procedural fairness throughout the investigation by informing her of the allegations made against her, providing her with sufficient information to properly understand those allegations, and giving her multiple opportunities to respond to those allegations before making a decision in relation to the matter. I do not accept Ms McKenzie’s argument that she was not afforded procedural fairness by reason of the fact that she was not provided with a copy of Liddell’s investigation report or all of the documents and records Liddell examined to reach its findings in relation to the incident. Ms McKenzie was provided with sufficient information to enable her to properly understand the allegations and respond to them. Nor do I accept Ms McKenzie’s argument that she was not afforded procedural fairness, or that there was some breach of the Corrective and Disciplinary Policy, by reason of the fact that she was told that she did not need representation at the meeting on 22 June 2016. Although Ms McKenzie says she was told she did not need representation at that meeting, she in fact obtained it by having Mr Michael Carroll, the CFMEU Liddell Lodge President, attend the meeting with her.

[39] I am satisfied that Liddell examined relevant records, interviewed all relevant witnesses and gave serious and detailed consideration to the relevant material before making its decision.

[40] Mr Brogan, Mining Manager, was the person within the Liddell management team given the responsibility to conduct the investigation. After obtaining and reviewing relevant evidence, he prepared an investigation report in which he recorded his findings in relation to the incident and then recommended that Ms McKenzie’s employment be terminated as a consequence of her conduct in connection with the incident on 16 June 2016. Mr Foster, Operations Manager, carefully reviewed Mr Brogan’s investigation report and his recommendation. Mr Foster did not simply accept Mr Brogan’s recommendation. Instead, he met with Ms McKenzie, together with her CFMEU representative (Mr Drayton), to discuss the incident and to explore for himself the question of whether Ms McKenzie had deliberately driven her truck at, or in close proximity to, Ms Noone’s truck. Following that meeting Ms McKenzie provided her response to the request by Liddell for her to show cause as to why her employment should not be terminated. Mr Foster and Mr Brogan considered that response and discussed what would be appropriate disciplinary action in the circumstances. Mr Brogan proposed a three week suspension (without pay). Mr Foster ultimately decided to impose a two week suspension (without pay) and issue a final written warning to Ms McKenzie.

[41] I find that Liddell acted in accordance with the procedure set out in the Corrective and Disciplinary Policy in connection with its investigation into the near miss incident. Ms McKenzie contends that Liddell failed to comply with that policy by suspending her on full pay for a period of in excess of 72 hours during the investigation. Ms McKenzie was suspended on full pay from 22 June 2016, pending the investigation. In support of this argument, Ms McKenzie relies upon the following part of the Corrective and Disciplinary Policy:

“While a decision in respect to a serious or major breach is being made, an employee may be suspended on full pay for a period of up to 72 hours to allow investigation, discussion and representation.

[42] There are two answers to this argument. First, the procedure on which Ms McKenzie relies in the Corrective and Disciplinary Policy only “sets out guidelines about how breaches of behavioural expectations will ordinarily be dealt with”. Secondly, the diagram on page 49 of the Enterprise Agreement states that Liddell may “if appropriate, suspend/stand down Employee pending investigation”. There is no temporal limitation in that provision of the policy on the period during which an employee may be stood down during the investigation. I am satisfied that it was appropriate for Ms McKenzie to be stood down on full pay during the investigation.

[43] I am satisfied that Mr Foster had appropriate regard to Ms McKenzie’s employment history in making his decision to suspend her and issue her with a written warning. 15

[44] Ms McKenzie told Liddell on a number of occasions that she was sorry for what had happened on 16 June 2016. She therefore expressed some remorse for her conduct. However, I agree with Mr Foster’s assessment that the remorse expressed by Ms McKenzie was not as significant as it may be in other cases because Ms McKenzie has not accepted accountability for her actions, nor has she satisfied Liddell that she will do things differently in the future if she is faced with a similar situation at work. For example, Ms McKenzie has not acknowledged that the most appropriate thing for her to have done when she wanted to turn off the haulage road and onto the unused area of the dump at the time that Ms Noone was moving slowly toward the haulage road was to apply the brake and stop, rather than speed up in an attempt to drive across in front of Ms Noone and avoid a collision with her truck. 16 In any event, the lack of genuine remorse shown by Ms McKenzie was only afforded a small amount of weight by Mr Foster in making his decision to impose the disciplinary action that he did on Ms McKenzie.17 In my view, that was appropriate in the circumstances.

[45] I reject Ms McKenzie’s argument that there has been inconsistent disciplinary action taken by reason of the fact that Ms Noone was not disciplined for failing to report the near miss incident immediately after the event. Neither Ms McKenzie nor Ms Noone reported the incident. Further, the conduct on the part of Ms McKenzie in failing to drive in a safe manner was far more serious than a failure to report the near miss incident.

[46] I also reject the argument put on behalf of Ms McKenzie that Liddell, in making its assessment of the disciplinary action to be taken against her, failed to take into account Ms McKenzie’s honesty in relation to the incident. Because Liddell did not take disciplinary action on the basis that Ms McKenzie drove deliberately at, or in close proximity to, Ms Noone, Ms McKenzie’s honesty or motive was not a significant matter. What was significant to Mr Foster was the unsafe way in which Ms McKenzie operated the haul truck on 16 June 2016. In making his decision, Mr Foster had regard to the fact that Ms McKenzie had not acted wilfully in connection with the near miss incident. 18

[47] Having regard to the seriousness of Ms McKenzie’s breach of her obligations under the Transport Management Plan and the real likelihood of significant personal injury and/or property damage as a consequence of that conduct, I am satisfied that the disciplinary action taken by Liddell against Ms McKenzie was not harsh, excessive, or disproportionate in the circumstances.

[48] For the reasons set out above, I am satisfied that Liddell did not exercise its discretionary power to take disciplinary action against Ms McKenzie unreasonably, in the sense that no reasonable employer could ever exercise the discretion in that way.

Conclusion

[49] Liddell acted within the limits of the discretionary power conferred on it by the Enterprise Agreement when it took disciplinary action against Ms McKenzie. In particular, Liddell exercised its discretionary power to take disciplinary action against Ms McKenzie honestly and conformably with the purposes of the Corrective and Disciplinary Policy, and did not act arbitrarily, capriciously or unreasonably. Accordingly, there is no basis for me to, and I will not, resolve the dispute by requiring Liddell to alter the disciplinary action it took against Ms McKenzie or take any other action. Ms McKenzie’s application pursuant to s.739 of the Act is dismissed.

[50] Even if I had decided that Liddell had acted outside the scope of its discretionary power under the Enterprise Agreement to take particular disciplinary action against Ms McKenzie, there would have been a real issue about the relief I could have awarded in those circumstances. Because Liddell has the right under Enterprise Agreement to take disciplinary action in the circumstances pertaining to Ms McKenzie’s conduct on 16 June 2016, any decision by me as the arbitrator of the dispute to impose, or require Liddell to impose, different disciplinary action on Ms McKenzie would be inconsistent with the Enterprise Agreement. However, it may be possible for an applicant in such a case to seek relief that would not be inconsistent with the Enterprise Agreement, including by seeking a determination that the employer be required to retract the disciplinary action imposed on the employee and re-exercise its discretion in a manner that was not arbitrary, capricious or unreasonable (as the case may be).

COMMISSIONER

Appearances:

Mr K Endacott, Industrial Research Officer of the CFMEU, and later, Ms J Short, Legal Officer of the CFMEU, on behalf of the applicant;

Ms R Farrar, solicitor from Corrs Chambers Westgarth, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

November, 16, 17 & 30.

 1   Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU[2015] FWCFB 1889 at [22]

 2 s.739(5) of the Act

 3   See clause 6.1(a) of the Enterprise Agreement

 4   Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [34]

 5   Silverbrook Research Pty Ltd v Lindley[2010] NSWCA 357). At [5]-[6]; Westpac Banking Corporation v Wittenberg[2016] FCAFC 33; (2016) 256 IR 181 at [127]-[130]; Foggo v O'Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87 at [62]-[71] (not challenged on appeal: O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40 at [47]); McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 36; (2016) 260 IR 9 at [271]

 6   Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223

 7   McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 36; (2016) 260 IR 9 at [238]

 8   Australian Federation Union of Locomotive Enginemen v State Rail Authority of New South Wales(XPT Case) (1984) 295 CAR 188; Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU[2015] FWCFB 1889 at [26]-[27]

 9   CFMEU v HWE Mining[2011] FWA 8288 at [12]

 10   See, for example, X v Commonwealth (1999) 200 CLR 177 at 187-8

 11   PN212

 12   PN436-7

 13   “An act which has seriously endangered or injured persons or has seriously damage to property or the environment”

 14   “Failing to follow safety procedures or rules, resulting in serious danger to persons or property" (Enterprise Agreement, p 47 at 10th bullet point)

 15   PN2151-8 & PN2199-2207

 16   PN2163-8

 17   PN2279-80

 18   PN2176

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