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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ms Anna McKenzie v Liddell Colleries Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 590
Decision Date: 27 JANUARY 2017

CaseChat Overview and Summary

Ms Anna McKenzie, a former employee of Liddell Colleries Pty Limited, commenced proceedings in the Fair Work Commission (FWC) seeking relief under section 186(6) of the Fair Work Act 2009. The dispute arose from an incident where Ms McKenzie was suspended without pay and subsequently dismissed following an investigation into her alleged involvement in an altercation with a colleague. Ms McKenzie contended that the warning and subsequent suspension without pay were not in accordance with the terms of the relevant enterprise agreement, specifically alleging procedural unfairness and a failure to follow proper disciplinary processes. Liddell Colleries, on the other hand, argued that the actions taken were justified under the circumstances and that the enterprise agreement allowed for such measures in cases of serious misconduct.

The FWC was tasked with determining whether Liddell Colleries had adhered to the correct procedures outlined in the enterprise agreement when issuing the warning and suspension without pay, and whether these actions were reasonable and proportionate in the context of the alleged misconduct. The Commission needed to assess the adequacy of the investigation conducted by the employer, the fairness of the disciplinary process, and whether the outcomes were justified given the evidence and the terms of the agreement. Furthermore, the FWC considered whether Ms McKenzie's rights under the enterprise agreement were upheld throughout the disciplinary process.

After a thorough examination of the evidence and the terms of the enterprise agreement, the FWC found that Liddell Colleries had not followed the proper disciplinary procedures as stipulated in the agreement. The investigation was deemed inadequate, and the warning and suspension without pay were found to be procedurally unfair. The employer's decision to proceed with the disciplinary action without providing Ms McKenzie an opportunity to respond to the allegations was also criticised. Consequently, the FWC ruled in favour of Ms McKenzie, determining that the actions taken by Liddell Colleries were not in accordance with the enterprise agreement and that the dismissal was unjust. The Commission ordered the reinstatement of Ms McKenzie to her previous position, with full back pay, and compensation for the procedural breaches.

Orders