Sarah Engel v Central Queensland Services Pty Ltd

[2017] FWC 87

[2017] FWC 87

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Sarah Engel
v
Central Queensland Services Pty Ltd
(U2016/6637)

COMMISSIONER HUNT BRISBANE, 5 JANUARY 2017

Application for unfair dismissal — termination of employment — whether failure to properly report and disclose material information about a serious incident amounts to valid reason for dismissal — valid reason for dismissal despite respondent’s procedural fairness deficiencies — dismissal not unfair — application dismissed.

[1] Ms Sarah Engel has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Central Queensland Services Pty Ltd (CQS).

[2] CQS contracts with BM Alliance Coal Operations Pty Ltd (BMACO) to provide services including labour at the Caval Ridge Mine in the Bowen Basin in Central Queensland (the Mine).

[3] Ms Engel commenced employment with CQS on or about 14 July 2013 in the role of Trainer/Assessor. In April 2014, Ms Engel began working as an Operator. At the time of the dismissal she was working in ‘B Crew’ and working in the Production Prestrip Department at the Mine.

[4] Ms Engel’s employment was terminated on 15 April 2016. She had been employed for approximately 2 years and 9 months at the time of the dismissal.

Hearing

[5] The application was heard in Brisbane on 5 and 6 September 2016. Leave was granted pursuant to s.596 of the Act for Ms Engel to be represented by Mr Luke Tiley of Hall Payne Lawyers, and for CQS to be represented by Ms Emma Freeman, of Counsel.

[6] The following witnesses’ statements and reply statements were admitted into evidence, except in the case of Mr Richards where he gave evidence viva voce:

● Ms Sarah Engel, Applicant;
● Mr Ben Richards, Operator and employee of CQS;
● Mr Lucky Andrews, former employee of CQS (not required for cross-examination);
● Ms Brooklyn Coyle, Head of Improvement (Coal);
● Mr Stuart Brown, Superintendent – Production Prestrip; and
● Mr Braydon McEvoy, Superintendent – Mine Services (not required for cross-examination)

[7] Written closing submissions were filed by both parties and oral closing submissions were heard in Brisbane on 25 October 2016.

Background

[8] Ms Engel has worked in the mining industry for approximately 10 years as an Operator. For the past 7 years she has also worked as a Trainer/Assessor/Operator. Ms Engel is qualified to operate, train and assess other employees in the following pieces of machinery:

(a) Shovel;

(b) Wheel Dozer;

(c) Cable Tractor;

(d) Water Cart;

(e) Haul Trucks.

[9] It is not disputed that Ms Engel had been up until the dismissal the most senior and experienced female Operator/Trainer/Assessor at the Mine. Ms Engel was somewhat of a ‘celebrated’ employee; she was nominated for an award in early 2014, and invited to meet the Prime Minister, Mr Tony Abbott during the Mine’s official opening ceremony in October 2014.

June 2014 warning issued

[10] In June 2014, Ms Engel was issued with a ‘Step 2’ warning for failing to make positive communication with a fellow employee via two-way radio. Prior to receiving the warning, Ms Engel had not had any safety breaches or been involved in a High Potential Incident (HPI).

[11] The circumstance for receiving the warning was that Ms Engel was operating a dozer truck. Another Operator was working nearby operating a rope shovel. Both Ms Engel and the other employee were cleaning up in and around the rope shovel. Ms Engel made a positive communication via two-way radio to the Operator, indicating that she was nearing his machinery. The Operator did not give positive communication to acknowledge Ms Engel’s communication, and the vehicles ultimately collided, resulting in damage of approximately $65,000 of damage to the dozer.

[12] Mr Brown’s evidence is that during the Just Culture Decision Tree meeting he held with Ms Engel in relation to the above incident, she agreed that in future she would ensure that all communications were clear before proceeding into another machine’s work area. 1 Mr Brown determined that Ms Engel had incorrectly assumed that her communication on the two-way radio had been understood by the other Operator, and had proceeded into the other area on that basis. Accordingly, Mr Brown decided to issue a written warning to Ms Engel.

[13] It was Ms Engel’s evidence that at the time of the incident there was no site-specific Standard Operating Procedures (SPO) or Site Working Instructions (SWI) to explain how to clean up in and around a rope shovel at the Mine. Shortly after Ms Engel received the warning, an SWI was developed and issued. It was Mr Brown’s evidence 2 that a SWI was in place and was simply refined after the incident involving Ms Engel. The SWI had been in place since December 2012.

[14] In accordance with the Mine’s Just Culture policy, Ms Engel’s ‘Step 2’ warning was downgraded to a ‘Step 1’ warning one year later as a result of no other disciplinary action during that period. The warning would have expired on its second anniversary date in June 2016.

Further incidents in 2015

[15] Ms Engel was involved in a further incident in January 2015 where it was determined that she had incorrectly placed a piñata on top of a high voltage trailing cable. Mr Brown considered the findings of the investigation into the incident. He determined that Ms Engel would not be disciplined, and instead ensured that she was coached. 3

[16] In June 2015, Ms Engel was operating a machine and noticed during her shift that a stabiliser wire or ‘stinger’ was broken. Mr Brown overhead a two-way radio conversation between Ms Engel and Mr Andrew Graham, Supervisor, reporting that the machine would be going for maintenance.

[17] Mr Brown directed Mr Graham to conduct an investigation. The investigation determined that while Ms Engel had reported the incident to the maintenance team and Mine Control, she had delayed reporting the incident to Mr Graham for a few hours.

[18] Mr Brown considered whether the incident warranted disciplinary action and determined that the best course of action was to have Mr Graham coach Ms Engel on her incident reporting obligations, particularly the obligation that all incidents should be immediately reported to her Supervisor. 4

[19] The Just Culture Decision Tree records the following against ‘Possible Discipline’ relevant to the incident above: 5

‘No step.

Although operator was aware of the broken cable, she let relevant parties know of the break and asked them to fix as per normal procedure. The machine did not suffer any extra downtime and the fitter present indicated that the wire was fatigued. He also repaired wire then and there whilst other work was being done.

She does acknowledge that she should have let Supervisor know but no discipline is required in this instance because other parties were aware of the issue and wire was repaired. Additionally with machine already down, it was a lapse that did not impact production.’

Misfires at the Mine

[20] Employees in the Production Prestrip Department work closely with employees in the Drill and Blast Department. Drill and Blast Operators loosen soil, and Production Prestrip Operators remove the overburden.

[21] Workers in the Drill and Blast Department loosen overburden by completing the following process:

(a) Drill operators drill down into the ground to a specified depth;

(b) Shot firers then place initiating explosives, a detonator and a booster into the hole to create a ‘primer’. A primer is the primary initiation point for the explosion. The signal lines to the primer are then fixed to a wooden peg at the top of the hole;

(c) The hole is then charged with an explosive column which is ammonium nitrate fuel oil (commonly referred to as ANFO);

(d) Once the column is charged, stemming is placed into the column. Stemming is an aggregate, such as blue metal or gravel which is designed to contain the energy of the explosion, rather than release it out towards the surface of the column. 6

[22] On some occasions the explosive material which is placed in the column is not able to be detonated as a step in the process does not go according to plan. This is referred to as a misfire. 7

[23] It is not disputed that some misfires can be extremely dangerous. These types of misfires include where both a primer and bulk explosives are present. Misfires of this type can be initiated by impact, shock, lightning or heat. Where primer and bulk explosives are present, it is possible for a shovel, dozer or other heavy equipment to initiate the explosion by driving over the misfire or from the bucket or blade impacting the primer. 8

[24] Where it is possible by shot firers to recover the initiators out of the column, the risk of the explosive product in the column being initiated is reduced. It is still possible for the explosion to be initiated, but this would be by a large surge of electricity such as lightning or heat, not by heavy equipment travelling over or near the misfire.

[25] The Mine’s Safety and Health Management System (SHMS) requires a lightning exclusion zone to be established around a misfire. Cones are placed to mark the exclusion zone. Workers are prevented from going within the lightning exclusion zone only when a weather event is occurring or where it is possible that lightning may occur.

[26] The SHMS also requires that a 10 metre exclusion zone is created around the misfire. The misfire is marked with a flag, and the 10 metres is marked with witches hats, demarcation pyramids and flashing lights. Flagging and fencing may also be placed around the hole, if required. Only shot firers and persons authorised by shot firers are permitted to enter the exclusion zone. 9 Prestrip Operators are not permitted to enter the exclusion zone.

[27] A misfire may only be cleared under the direct supervision of a shot firer, and after the completion of a job step analysis (JSA).
[28] At some misfires, Operators will not know if the misfire includes both the initiating primer and bulk explosives, or the bulk explosives only. Accordingly, where the Operators are not informed of the condition of the misfire, it is assumed that the misfire could include the initiating primer, and vehicles should not travel within the exclusion zone.

[29] Misfires occur reasonably regularly. During June 2016, there were four misfires in various areas of the Mine. It is Mr Brown’s evidence that misfires will typically occur approximately every two months. 10

Misfire Quiz

[30] Mr Brown’s evidence is that he regularly trains the crews that he is responsible for in a quiz known as the Caval Ridge SOP Quiz – Blasting and Dealing with Misfires (Misfire Quiz). Mr Brown is responsible for the B and D Crews at the Mine.

[31] The Misfire Quiz has been demonstrated to employees in the Production Prestrip Department in the bus on the way out to the pit. Television screens are used connected to a Supervisor’s laptop. The Supervisor asks employees on the bus the questions, requires an oral answer, and then displays the answers to each question on the television screen.

[32] Ms Engel gave evidence that she had not ever been present for the Misfire Quiz conducted on a bus out to the Mine. It is Mr Brown’s evidence that B crew Prestrip did undertake the Misfire Quiz on 4 November 2015. 11 Ms Engel’s card swipe data demonstrates that on 4 November 2015, Ms Engel entered the Mine at 5.31am and swiped out at 6.33pm.12

Standard Operating Procedure – Blasting and Dealing with Misfires

[33] The Mine has in place a SOP, Blasting and Dealing with Misfires. The SOP is used in the Drill and Blast Department, and it is CQS’s contention that there is no requirement for Operators in the Production Prestrip Department to know the exact requirements of the SOP. They are expected by CQS to be familiar with a number of critical aspects of the SOP.

[34] It is not disputed that Ms Engel had not been specifically trained in the above SOP. 13

[35] Where a HPI occurs at the Mine or at other related mines, the information is shared with employees at the Mine. In May 2015, a misfire was initiated during shovel operations at a related mine at Daunia. The incident could have resulted in multiple fatalities. Following the HPI at Daunia, it was discussed at the Mine in the monthly Production Prestrip Department meeting. 14 All crews in the Prestrip Department discussed the incident.

Misfire at Mine on 10 February 2016

[36] On 10 February 2016, Ms Engel returned to work at the commencement of her roster swing, having been rostered off for the previous seven days.

[37] Ms Engel departed the camp site in a bus at approximately 5.30pm and travelled with her colleagues to the site. A pre-start meeting was held on the bus. Mr Graham informed those present on the bus that there had been a misfire underneath the shovel bench where employees had been tasked to work that evening. It is Ms Engel’s contention that Mr Graham stated that management was not entirely sure where the misfire was located, and an exclusion zone had been erected around where it was thought to be. 15 Mr Brown’s evidence is that management did, in fact know exactly where the misfire was, and the demarcation zone was properly put into place.16

[38] It is Ms Engel’s evidence that she understood that an exclusion zone is always erected around a misfire, and work cannot occur within the zone until it is properly cleaned up with a member of the Blast crew. The clean-up of an exclusion zone generally occurs during daylight hours due to safety concerns. 17

[39] Ms Engel commenced working at the site at approximately 6.00pm. Ms Engel was scheduled to commence working on the shovel for the first part of the shift. She would then work on the wheel dozer for the second part of the shift, and then return to the shovel to complete the third part of the shift.

[40] Ms Engel knew that she would be swapping machinery with a fellow employee, Mr Lucky Andrews. Ms Engel first met Mr Andrews in 2008, and she considers him to be very experienced and a ‘veteran’ Operator and Trainer/Assessor. 18 Mr Andrews’ evidence is that he has worked in the mining industry for nearly 40 years.

[41] The height of the ‘wall’ of soil facing an Operator is typically around 15-18 metres. Cones were placed around the misfire in the shape of a circle on the soil on top of the wall. It is noted that the shift was performed at night, and the cones are at a considerable height from the Operators working below.

[42] There had earlier been rain, and a truck had become stuck in the mud. Ms Engel realised that she could not work along the eastern wall of the soil. She spoke with Mr Graham on the two-way radio, and together with Mr Andrews it was determined that she would relocate the shovel to the southern wall working-face. It was understood that she would commence digging and work back left, towards but around the misfire. It was understood that Mr Graham would at some point during the shift help move the truck that had become stuck in the mud.

[43] Ms Engel experienced some difficulty with her vehicle, requiring maintenance to be performed on it. While it was being repaired she assisted with having the truck moved from the mud.

[44] Ms Engel worked between around 9.00pm and 10.45pm on the shovel. At approximately 10.45pm, Ms Engel swapped with Mr Andrews and she began to work on the wheel dozer. At this point, Ms Engel became aware that Mr Andrews had with him another employee, Ms Lewis. Mr Andrews had been tasked with training Ms Lewis on the shovel.

[45] Ms Engel expressed her surprise that Mr Andrews was tasked with training Ms Lewis. Ms Engel held concerns that Mr Andrews had only just returned from five weeks’ annual leave and had not operated the shovel for a number of months, having worked recently on a different crew. She expressed her disapproval with Mr Andrews, who put his arms in the air to indicate that it was beyond his control. 19

[46] Ms Engel worked on the dozer until approximately 11.00pm and left for a crib break. She returned from her break at approximately 11.45pm and worked a specific task until approximately 2.00am.

[47] It is Ms Engel’s evidence that at approximately 2.00am she heard the following conversation over the two-way radio: 20

Andrews: What should I do, I am getting close to the exclusion zone?

The cones marking the exclusion zone are falling over.

They are about to fall.

Graham: What do you mean?

Andrews: The cones marking the exclusion zone are falling over. They are about to fall.

Graham: When you get close and have removed all material away from the front of the cones, you should relocate the shovel away from it.

[48] More accurately, Mr Brown’s evidence demonstrates that a conversation along these lines was held between Mr Andrews and Mr Graham at 11.24pm on 10 February 2016. 21

[49] Ms Engel went on a second crib break between approximately 2.30am and 3.15am. She went to return to the wheel dozer, and in doing so, had to log on to the GPS system called ‘Minestar’.

[50] It is Ms Engel’s evidence that Minestar is a GPS system allowing Operators to see important information, including if there are any exclusion zones in place. Ms Engel considers that Minestar is often not operational or takes too long to load properly. She was not aware of any policy or procedure that prohibits the commencement of work if the vehicle has failed to log on to Minestar. Ms Engel stated that it is common practice to commence working whilst waiting for the Minestar system to upload.

[51] Ms Engel was keen to clean up the area in which Mr Andrews had been digging and to allow him to go on a crib break. She commenced cleaning up the area before the Minestar system had logged her on.

[52] As she was cleaning up the soil whilst operating the wheel dozer, she noticed exclusion zone cones up above at the top of the wall of soil. It was not immediately apparent if the cones she could see were at the start of the circle of the exclusion zone, or if they were the back markers, meaning the zone had been dug out.

[53] After approximately two minutes of cleaning up with the wheel dozer, Ms Engel realised: 22

(a) The cones she could see were for the far end of the exclusion zone;

(b) Mr Andrews had dug out the misfire and the front cones had fallen;

(c) She was cleaning up where Mr Andrews had dug;

(d) Mr Andrews had gone through the exclusion zone while she was on her crib break;

(e) The Minestar system was still authorising her login, and she could not get a GPS reading to cross-check the cones or the exact location of the exclusion zone to be certain; and

(f) There we no other vehicles in or near the exclusion zone, including Mr Andrews.

[54] Ms Engel stopped what she had been doing, and at this point, the Minestar system had logged her in. She confirmed her suspicions that she had unknowingly entered into the exclusion zone. She drove out of the exclusion zone by following her tracks as the safest method of egress.

[55] Ms Engel contacted Mr Andrews on the two-way radio and informed him that he should stop what he was doing as she was coming over to talk to him. Mr Andrews was not, at this point in time in the exclusion zone.

[56] It is Ms Engel’s evidence that she wished to address with Mr Andrews in person her concern about both of them having entered the exclusion zone. She did not wish to discuss this with him over the two-way radio for the following reasons: 23

(a) He was no longer in the exclusion zone and therefore not in immediate danger;

(b) She wanted to tell him in person and did not wish to humiliate him over the two-way radio;

(c) She wanted to hold respect and integrity for him, and CQS encourages ‘courageous conversations’;

(d) She feared that she may be victimised by other Operators if his error was declared publicly on the radio; and

(e) She wanted to assess his fitness for work as she considered this error to be uncharacteristic for a very experienced Operator.

[57] Ms Engel spoke with Mr Andrews and the following was said:

Engel: Are you OK?

Andrews: I’m fine.

Engel: Lucky, you are not. You just dug through the exclusion zone. You need to report the matter to Andrew now. Lucky, are you listening to me? You just dug through the misfire exclusion zone. We have to let Andy know. You need to let Andy know.

Andrews: I’m going on crib anyway. I’ll report it to Andrew and sort it out.

[58] At approximately 3.50am, Mr Andrews returned to work from having had a crib break and he resumed work on the wheel dozer. At approximately 4.00am, Ms Engel’s evidence is that she heard a conversation to the following effect on the two-way radio:

Andrews: Andrew, the shovel has gone through the misfire zone, there is no sign of prill, booster or of downcord.

Graham: Yeah OK.

Andrews: The shovel has gone through the misfire zone, there is no sign of prill, booster or of downcord.

Graham: Yeah OK.

[59] Ms Engel gave the following evidence: 24

“After hearing this conversation, I believed Mr Andrews and myself had reported the matter appropriately.”

[60] Ms Engel presumed that Mr Graham would make a decision about the misfire exclusion zone and the incident of Mr Andrews having entered the zone. Ms Engel did not see Mr Graham attend the scene. Her evidence is that while she thought that was unusual, she did not believe that it was her place to remind Mr Graham of the incident as ‘we’ (Mr Andrews and Ms Engel) had reported the misfire exclusion zone having been dug through.

Investigation of the incident – 11 February 2016

[61] On 11 February 2016, Mr Brown was working day shift. At approximately 11.00am he received a telephone call from a supervisor on D crew informing him that the misfire had been dug through by the night shift. Mr Brown was informed that shovel 40 had been operating near the misfire during the night shift.

[62] Mr Brown informed Ms Coyle about the misfire and what had been reported to him. Ms Coyle instructed Mr Brown to commence an investigation.

[63] In the afternoon of 11 February 2016, Mr Brown attended the incident area. He noted that wheel dozer trucks were in close proximity to the misfire. He further noted that there remained one single demarcation cone at the top of the dig-face.

[64] Mr Brown requested that a survey be taken of the area to provide information including how far the misfire had been dug into. By 1.39pm on 11 February 2016, Mr Brown had this information available to him.

[65] Mr Brown was also provided with a photo of the misfire area. On reviewing the photograph he was concerned that he could see tyre marks on the ground very close to the misfire, indicating that a vehicle had driven over or very close to the misfire. 25

[66] At approximately 3.00pm on 11 February 2016, Mr Brown had available to him GPS information and a 3D model demonstrating that the shovel Operator, Mr Andrews had dug a significant way through the exclusion zone, through the misfire itself, and then through to the outer side of the exclusion zone. This distance was approximately 20 metres.

[67] When Mr Graham arrived to work at approximately 4.50pm, Mr Brown informed Mr Graham of the incident and requested that he assist him with the investigation into the incident. Mr Brown arranged for an alternative supervisor to step into the role of Supervisor for the shift.

[68] Mr Brown asked Mr Graham to obtain witness statements from workers in B Crew who may have been involved in the incident. It should be noted that at this point in time Mr Brown did not have any understanding that Ms Engel was involved in the incident.

Witness statements obtained

[69] At approximately 8.00pm on 11 February 2016, Mr Graham convened a meeting with Mr Andrews and Ms Engel. A ‘5 Why’ timeline was worked on by the people present. Upon hearing that Mr Andrews had gone through the exclusion zone, Mr Graham expressed shock. Mr Andrews said, “I’m accountable, I’m taking full responsibility for going through the misfire, it’s no one else’s fault.” 26

[70] Ms Engel responded, “Well I don’t know, I was away from the area on crib break.” Ms Engel then suggested that perhaps Mr Andrews had been distracted by having to train Ms Lewis.

[71] Mr Graham requested Ms Engel and Mr Andrews prepare a written statement of the incident. Ms Engel had commenced the written statement on 11 February 2016 and completed it on 12 February 2016. It is clear that Ms Lewis was also requested to given an account of the incident. Mr Andrews’ statement makes reference only to himself and his errors in continuing to dig while cones were falling from above.

[72] Ms Lewis’ statement makes reference only to the actions of Mr Andrews and her observations before she was then relocated to a different area.

[73] Mr Brown and Mr Graham met with Mr Andrews to discuss the incident. Mr Andrews repeatedly said that he had ‘stuffed up’. Mr Andrews was suspended from work pending an outcome of the investigation.

[74] Mr Brown and Mr Graham then met with Ms Lewis and discussed with her why she had not challenged Mr Andrews when he commenced digging out the misfire while she was in the vehicle. Ms Lewis responded that while she held concerns about Mr Andrews’ actions, she did not want to question him as he was her trainer and she had not received her shovel competencies.

[75] Mr Graham also completed a statement on 11 February 2016. His statement includes that he held a briefing with his crew while travelling on the bus, and specifically addressed the misfire. He informed the crew that they would need to mine what they could around the misfire as day shift would then clear the misfire hazard.

[76] Mr Graham’s report states that he was in the vicinity of the exclusion zone at approximately 1.40am on 11 February 2016, and he observed demarcation cones forming the exclusion zone. While up near Mine Control, he received a call from Mr Andrews which was difficult to understand. Mr Graham engaged the assistance of Mr Chris Bell, Mine Controller to understand what Mr Andrews was reporting. Mr Graham understood Mr Andrews to be reporting that a few cones may come down as the material rills off the face of the wall. Mr Graham responded that if a few came down he should load them in the truck, but keep as many as practicable there.

[77] Mr Graham’s report did not make mention of any further conversation with Mr Andrews. He reported that he returned to the area after 4.00am, where he noticed that some demarcation was missing. He assumed that he was looking at the front of the misfire exclusion zone, not the back or high wall side.

Ms Engel’s written statement of 11 - 12 February 2016

[78] In order to continue the investigation and be at the Mine at the same time as B Crew, Mr Brown transitioned from day shift to night shift. He was copied in to an email sent from Ms Coyle to the Mines Inspectorate reporting the incident as a HPI in accordance with the relevant legislation. The incident was required to have been reported as a HPI because if a blast had been initiated, it could have resulted in multiple fatalities.

[79] Mr Brown read Ms Engel’s written statement of 11 – 12 February 2016. After reading the statement, Mr Brown was satisfied that the pre-start briefing on 10 February 2016 had properly addressed the misfire for the crew due to commence work.

[80] Ms Engel’s statement contains an extraordinary amount of detail up until 3.00am on 11 February 2016. The statement includes reference to a conversation between Mr Andrews and Mr Graham and cones falling down. The statement nominates Mr Graham informing Mr Andrews to dig up to the cones, then pull out and go back to the low wall side. There is no information within the statement about Mr Andrews digging into the misfire zone, nor Ms Engel’s involvement or presence in the zone. The statement did not contain any information about Ms Engel’s knowledge about encroachment into the exclusion zone.

[81] Mr Brown was not comfortable with Ms Engel’s statement, and prepared some questions that he proposed to ask her in a meeting. He wrote down the following in his diary:

‘Sarah: What did you know?

What did you discuss @ 1.00 or swap?

When cleaning up @ 3.15am what did you see, know, observe on Minestar?’

Investigation meeting of 14 February 2016

[82] On 13 February 2016, Ms Engel was in the canteen area at camp, not at the Mine. It is her evidence that in the presence of Mr Ben Richards, Operator, Mr Graham informed her and Mr Richards that he [Mr Graham] had just been informed that he had been suspended for the rest of the working week. When Ms Engel asked why he had been suspended, he answered that it was because of the misfire incident and lack of supervisory skills in dealing with a misfire incident.

[83] Ms Engel’s evidence is that she was further informed while on the bus out to the Mine by a relief supervisor that Mr Graham had been suspended.

[84] Shortly after midnight, that being the early hours of 14 February 2016, Mr Brown convened a meeting with Ms Engel in the presence of her support person, Mr Richards. Ms Engel’s evidence is that she and Mr Brown had a strained relationship resulting from an investigation by management. Ms Engel had challenged Mr Brown’s behaviour towards her, alleging bullying, harassment, gender discrimination and double standards.
[85] Prior to the meeting commencing, a HPI had occurred at the Mine. Ms Engel had witnessed this incident. It is her evidence that she said to Mr Brown that she was not well enough to continue with the meeting, and felt shaken up over the incident. She said to Mr Brown, “I don’t feel that you or anyone else seem to care about what just happened, two employees were seconds from being seriously injured or killed.” 27 It is Mr Brown’s evidence that he asked Ms Engel how she was feeling, to which she answered that she was a little bit rattled, but OK to continue the meeting.28

[86] Mr Graham then entered the room and joined the meeting. Mr Brown declared that Mr Graham would be sitting in on the meeting. It is Ms Engel’s evidence that she thought this very odd, given that Mr Graham had informed her that he had been suspended from work. Ms Engel’s evidence is that she felt intimidated by Mr Graham being in the meeting. He had been involved in the incident and she considered that he should not be part of the investigation of the incident.

[87] Ms Engel did not voice her concerns, she stated, because she was intimidated by the ‘situation’, and was in shock over the HPI that had occurred hours earlier.

[88] Ms Engel’s evidence is that when questioned by Mr Brown, he specifically asked her questions as to her involvement in the misfire incident up until 3.23am only. She considered that she was asked up until this time only and not up until the end of shift because she considered that Mr Brown was aware that she had entered the exclusion zone at approximately 3.23am.

[89] Ms Engle’s evidence is that she said to Mr Brown words to the effect that she had unknowingly and unintentionally entered the exclusion zone, and revealed the authorisation issue she had with Minestar. She stated that she did not know why Mr Andrews had dug through the exclusion zone as she had been on her crib break.

[90] It is Ms Engel’s evidence that Mr Brown had asked very specific questions and she answered accordingly. Mr Graham’s presence in the room led Ms Engel to believe that he was assisting Mr Brown in the investigation. She assumed that Mr Graham had revealed to Mr Brown that Mr Andrews had reported the incident on the two-way radio.

[91] Ms Engel stated, “If questions had been asked of me regarding the reporting of the incident over the [2-way radio] and my involvement in them, I would have answered them honestly. However because those issues did not come up during the meeting I did not speak about them.” 29

[92] Mr Brown’s evidence is that he asked Ms Engel what she knew about the misfire at the commencement of her shift. She answered that she was well informed at the pre-start meeting and it was discussed that Operators should work around it.

[93] Mr Brown’s evidence is that Ms Engel was asked what she had discussed with Mr Andrews at the 11.00pm swap of vehicle. She answered that the misfire was not discussed at this time, but had been discussed earlier on the two-way radio.

[94] Mr Brown stated that he asked Ms Engel when she was cleaning up at 3.15am, what did she see? Ms Engel answered that she couldn’t remember, didn’t see anything, and didn’t see any issues at 3.15am. She said that she didn’t notice anything at around the time of the Operator swap.

[95] Mr Brown’s scant notes of the meeting include the following as having been stated by Ms Engel: ‘Stated did not see or recognise any issue when cleaning up @ 3.15am’

Concerns regarding Mr Graham’s conduct

[96] At this point in the investigation Mr Brown held concerns that Mr Graham, in his role as Supervisor may not have conducted himself properly at the time of the incident. Mr Brown held these views because Mr Andrews and Ms Engel had indicated that they were aware of falling cones from the high ridge.

[97] On 15 February 2016, Mr Brown met with Ms Coyle to discuss his concerns. Ms Coyle instructed Mr Brown to stand Mr Graham down pending the outcome of the investigation. Mr Brown met with Mr Graham at 4.30pm on 15 February 2016 and suspended his employment.

[98] Mr Brown’s evidence is that he has examined Mr Graham’s swipe card data, demonstrating that Mr Graham was on-site for substantial periods on 13 and 14 February 2016. He disagrees with Ms Engel’s assertion that Mr Graham had been suspended on 12 February 2016.

[99] Mr Graham was present at the Mine on 15 February 2016 from 7.49am until 4.47pm, departing shortly after the 4.30pm meeting with Mr Brown.

Minestar data and two-way radio recordings

[100] On 16 February 2016, Mr Brown received Minestar data that he had requested. The data informed him that Ms Engel had entered the misfire exclusion zone on 11 February 2016 on the following occasions:

(a) 3.10am, 6.5 metres from the misfire;

(b) 3.14am, 6.5 metres from the misfire;

(c) 3.15am, 10 metres from the misfire.

[101] The two-way radio recordings are as follows for the period 10.35pm to 10.36pm on 10 February 2016:

Engel: Hey Lucky, have a look. Do you want me to do one more jump over to the right before going back left of that misfire? Or have you got enough room to go left now?

Andrews: We go left mate.

Engel: Alright.

Andrews: Let’s get into that misfire.

Engel: What’s that?

Andrews: Let’s get into that misfire.

Engel: Yeah.

[102] The recordings demonstrate a further conversation was had between Mr Andrews and Mr Graham between 11.24pm and 11.28pm on 10 February 2016. The conversation largely deals with Mr Andrews informing Mr Graham that there are exclusion cones above, and does Mr Graham want them to remain? Mr Graham responded, albeit not explicitly that the cones should remain above, and Mr Andrews should work back towards the low wall side.

[103] Mr Brown received further data towards the end of February 2016 informing him that Mr Andrews and Ms Engel swapped vehicles at around 10.57pm on 10 February 2016, and again between 3.25am and 3.28am on 11 February 2016.

[104] Mr Brown also was informed during his investigation that the initiating explosives had, in fact, been removed from the misfire before the incident on 11 February 2016 took place. This would have meant that normal mining activity such as driving over a misfire would have been unlikely to result in a blast. Lightning, heat or chemical reactions would have likely to have been required for a blast to occur.

[105] This was not, however, known to Ms Engel, Mr Andrews or Mr Graham during the incident. As far as they would have been aware on the night, normal mining activity could have resulted in a blast.

Incident Cause Analysis Method completed

[106] An Incident Cause Analysis Method (ICAM) was completed by Mr Brown in March 2016. Pertinent to Ms Engel, the ICAM records relevant to 3.15am:

‘DZ312 carried out cleanup on pit floor to the left of the shovel in the area of the misfire.

Clean up was required after shovel moved[.] operator did not recognise misfire had been dug out.’

[107] The ICAM identified individual and team actions that resulted in the incident:

‘Both dozer and shovel operator continued to work through a known misfire without recognising the hazard.

Operator contacted supervisor for task clarity – supervisor failed to correct inappropriate operating approach by operator.

Supervisor failed to identify team had dug through misfire at any time throughout the shift (includes inadequate area inspection).’

[108] The ICAM also identified that an incorrect file for location of the misfire had been loaded on to the shovel Minestar.

[109] To complete the investigation, Mr Brown concluded that Ms Engel had breached the SOP Blasting and Dealing with Misfires as she had entered into the 10 metre exclusion zone around a misfire without authorisation. He also determined that she had failed to put health and safety first, exposing herself and others to risk, and therefore was in breach of the BHP Billiton Code of Business Conduct Charter Value of Sustainability.

[110] Mr Brown determined that because it was Mr Andrews, and not Ms Engel who had dug through the misfire zone, and because he believed that Ms Engel was not aware that she had been so close to the misfire, any discipline required should be limited to a Step 3 – Final Written Warning. He did not consider it suitable to issue a Step 4 warning which may result in termination.

[111] Ms Coyle agreed with Mr Brown that Ms Engel should be issued with a Step 3 – Final Written Warning. Mr Brown relied on Ms Engel’s earlier written account of the incident and her verbal responses in the meeting of 14 February 2016 to complete the Just Culture Decision Tree.

Dismissal of Mr Andrews

[112] Mr Andrews’ employment was terminated on 15 March 2016 as a result of his involvement in the incident.

Meeting of 23 March 2016

[113] On 23 March 2016, Mr Brown held a meeting with Ms Engel. Ms Zoe Newnan, HR Business Partner was in attendance, together with Mr Richards as Ms Engel’s support person. Mr Brown informed Ms Engel the investigation was complete and commenced reading out loud the final written warning to be issued.

[114] It is Mr Brown’s evidence that while he was reading the letter out loud, Ms Engel said words to the effect that there was more to the incident than Mr Brown knew, and that she had withheld information regarding the incident. Ms Engel said that at around 3.15am she became aware Mr Andrews had dug through the misfire, and she had stated that the incident would need to be reported to Mr Graham. She later heard a two-way conversation between Mr Andrews and Mr Graham and she considered the incident had been reported.

[115] It is Ms Engel’s evidence that the following was said:

Engel: Something is not right here, the investigation has clearly failed and all the information must not have been collected otherwise I would not be receiving a first and final warning. Have either Andrew or Lucky disclosed the conversation that occurred between them at around 4am that morning of the HPI misfire?

I swapped Lucky out at second crib. I alerted to Lucky that he had dug through the misfire, and that he had to report it to supervisor Andrew and he told me he was doing so. There was a 2-way recording on CH11 where Lucky and Andrew had in fact spoken regarding the shovel digging through the misfire. Lucky had informed Andrew there was no evidence of prill, down cord or misfire.

I remember Lucky appeared to be in a trance-like state and wasn’t himself. My concern was for Lucky at the time.

Brown: Do you realise what you’re saying, Sarah? You better have a think about what you’re saying here.

Engel: Yes, Stuart, I do know what I’m saying and what I am saying is the truth of what happened and clearly you do not have all the correct information and the investigation has failed.

Brown: You lied to me, you lied to the company and lied to the mine inspector and this changes the outcome for other people. Do you know we only keep 2-way records for a certain amount of weeks on record? We will have to stop the meeting and I’ll have to go see the Mine Manager, Brooklyn.

Engel: Stuart, I never lied to you or the company. You only ever asked me what happened up to 3.23am of your timeline. I never at no time lied to the company and you best go get the 2-way records from Mine Control. If you can get them then it will confirm what I’m saying is the truth.

[116] The meeting was immediately halted, and Mr Brown and Ms Newnan met with Ms Coyle. It is Ms Coyle’s evidence that Mr Brown reported to her that Ms Engel became aware at approximately 3.16am on the morning of the incident that Mr Andrews had dug through the exclusion zone. In addition, Ms Engel reported that she had held a conversation with Mr Andrews, and had later heard a two-way radio conversation between Mr Graham and Mr Andrews.

[117] In cross-examination, Ms Coyle agreed that Mr Brown and Ms Newnan had reported that Ms Engel had stated that she had withheld information relevant to the investigation. 30 Ms Engel denied having stated that she had withheld information. Mr Richards’ evidence is that Ms Engel did not make such a statement. In cross-examination Mr Brown conceded that Ms Engel had not made such a statement, but it was his view of what she was informing him that led him to conclude that she had withheld information.

[118] Ms Coyle instructed Mr Brown to suspend Ms Engel’s employment and retract the written warning. Mr Brown and Ms Newnan then again met with Ms Engel and Mr Richards, and Mr Brown informed Ms Engel she was suspended with pay, the written warning was void, and the investigation – a second investigation - would continue. He informed her that she would need to complete a further statement and asked if she required assistance. Relevant assistance was provided to Ms Engel.

Ms Engel’s written report – 23 March 2016

[119] Ms Engel provided a 3.5 page hand-written account, including at the top of the statement, “Additional information to previous statement”.

[120] The statement included Ms Engel’s understanding that she had ‘believed’ that Mr Andrews had reported the misfire incident to Mr Graham during the crib break, together with ‘reporting’ it over the two-way radio.

Second investigation continues

[121] Mr Brown was able to retrieve a copy of the two-way radio conversation between Mr Andrews and Mr Graham at around 4.08am on 11 February 2016, approximately one hour after Ms Engel had alerted Mr Andrews that they had both entered the exclusion zone. The recording is as follows:

Andrews: 312 to Andy. Yeah that misfire?

Andrews: That misfire mate. Yeah. I dug back to the back marker. There was no indication of prill or down lines or goodness what else makes it go pop. There was nothing but….

Graham: Okay. Thank you mate.

[122] Mr Brown then contacted Mr Andrews (who had by this time been dismissed) by telephone to determine if he had reported the incident to Mr Graham in person on 11 February 2016. Mr Andrews answered that he did not know. He was asked if he had considered re-marking the misfire, to which he answered no. He was asked if he had told Ms Engel that he would ‘sort it out’, by reporting it to Mr Graham. He answered that he could not remember.

[123] On 24 March 2016, Ms Engel listened to a copy of the two-way radio recordings of the incident.

Show cause letter issued

[124] Mr Brown concluded his inquiries following the revelations above. He held concerns that Ms Engel had effectively parked her shovel up at the end of the shift knowing the misfire area had been dug through, without ensuring the area had been made safe. There would have been only the one demarcation cone in place to mark the exclusion zone.

[125] Mr Brown held concerns that the shovel Ms Engel had been working on was then attended to by the day shift following the incident. The maintenance work included hot work. Mr Brown’s evidence is that molten metal from hot work is a potential initiator for the misfire. He considered that Ms Engel [together with Mr Andrews and Mr Graham] could have placed both the night shift and the following day shift crew in potential danger. 31

[126] Mr Brown considered that Ms Engel’s actions constituted misconduct and a breach of:

(a) The SOP Blasting and Dealing with Misfires – Section 25;

(b) BHP Billiton’s Code of Business Conduct Charter Value – Sustainability – Putting health and safety first, being environmentally responsible and supporting our communities; and

(c) BHP Billiton Code of Business Conduct Charter Value – Integrity – Doing what is right and doing what we say we will do.

[127] Mr Brown informed Ms Coyle that he considered Ms Engel should show cause as to why her employment should not be terminated for the above reasons. Ms Coyle agreed and a show cause letter was prepared.

[128] Ms Engel was issued with the show cause letter at a meeting on 6 April 2016. She had a support person with her in attendance. It was agreed that Ms Engel would be required to respond to the show cause letter by 11 April 2016.

[129] On 11 April 2016, Ms Engel raised concerns with Ms Newnan about Mr Brown conducting the review into the show cause letter issued because of the earlier matter between them. Ms Engel informed Ms Newnan that Mr Graham had been ‘stood down’ during the investigation and should not have been able to sit in on the meeting held on 14 February 2016. Ms Engel asserted that it breached her safe space to ‘speak up’. 32

Show cause response letter

[130] Ms Engel responded in writing to the show cause letter. Ms Engel agreed with a number of matters put to her in the show cause letter, and refuted contentious issues. It is not necessary to reproduce in this decision the show cause response. Ms Engel informed CQS that she had not been trained in the SOP Blasting and Dealing with Misfires as expressly referenced in the show cause letter. 33

[131] It is Mr Brown’s evidence that he considered Ms Engel’s response and he considered that she had not adequately explained her actions, nor identified any mitigating circumstances that excused her behaviour. Mr Brown considered the following constituted reasons for dismissal:

(a) Ms Engel had been dishonest with Mr Brown during the meeting of 14 February 2016, and she was specifically asked what had happened at 3.15am. She had not informed him on [14 February 2016] that she had directed Mr Andrews to report the incident. Mr Brown considered Ms Engel had deliberately misled the investigation;

(b) During the meeting of 14 February 2016, Ms Engel had with her a support person. She had not indicated at any stage that she did not wish to continue. If she was upset she could have utilised her support person or spoken with Ms Coyle following the meeting. Mr Brown was not informed that he was not to be in a room with Ms Engel;

(c) The misfire dug by Mr Andrews would have taken a considerable amount of time, having to dig through approximately 8,000 cubic metres of overburden. Mr Brown considered this would take up to 2.5 hours, and at least 1.5 hours. This is considerably more time than the time suggested by Ms Engel (only during her crib break);

(d) When Ms Engel realised she was working in the exclusion zone, she should have taken steps to notify her supervisor that a HPI had occurred. It was not Ms Engel’s place to determine that the area was safe; the Supervisor should have been informed and determined the safety of the area;

(e) Ms Engel overhearing a two-way radio conversation at 4.08, nearly one hour after she became aware of the incident, did not constitute a mitigating circumstance to excuse her failure to report the incident. Ms Engel finished the shift without the area having been marked out with demarcation cones, and her conduct was reckless in exposing others in the crew and following crew to a HPI;

(f) Having been informed of the location of the misfire zone, the zone should have been at the forefront of her mind when working in the vicinity of the misfire. Mr Brown did not accept Ms Engel’s explanation that any failure of Minestar could excuse her behaviour. Minestar is a guidance tool, but demarcation cones and other hazard identifiers were in place. If Ms Engel was concerned she was in the vicinity of the misfire, she could have contacted dispatch to make inquiries. Ms Engel had not suggested during the meetings of 14 February and 23 March that Minestar was not working on the vehicle she was operating.

Ms Coyle – decision maker

[132] Ms Coyle was the manager responsible for terminating Ms Engel’s employment. It is necessary to address in some detail her evidence and relevant history with Ms Engel.

[133] Ms Coyle was informed by Mr Brown in June 2015 that Ms Engel and Mr Shannon Murray, Operator had been having arguments in the workplace. The two were found to be swearing and yelling at each other. Ms Coyle directed Mr Brown to address this issue with both employees.

[134] On 21 July 2015, Ms Coyle met with Ms Engel, where Ms Engel raised a complaint against Mr Brown, accusing him of treating her differently and bullying her. Ms Engel identified 10 concerns she had in relation to Mr Brown’s treatment of her.

[135] Ms Coyle determined that since Mr Brown reported directly to her she would have other managers investigate Ms Engel’s complaint. By November 2015, the investigation was complete.

[136] On 24 November 2015, Ms Coyle met with Mr Brown and informed him that nine out of the ten allegations made by Ms Engel about him were found to be unsubstantiated. One allegation was substantiated; it was found that a formal investigation into a complaint made by Ms Engel should have occurred. It was determined that Mr Brown did not perform a formal investigation primarily because it had been Ms Engel who had made the complaint, and therefore Mr Brown had treated Ms Engel’s complaint differently to how he would have treated a complaint from another coal mine worker. 34

[137] After Mr Brown was informed of this finding, he stated to Ms Coyle that he would feel more comfortable if he needed to meet with Ms Engel in the future that another person be present. Ms Coyle stated that if that was Mr Brown’s wish, she supported his decision. Ms Coyle stated that it was important that Ms Engel was supported into the future.

[138] Ms Coyle held a telephone meeting with Ms Engel to report the outcome of the investigation. Ms Engel was offered by CQS to be moved to a crew other than B Crew if she so wished. Ms Engel stated that she did not wish to move crews. Ms Coyle stated that it was important that all parties, including Ms Engel used effective communication into the future.

[139] On a later occasion, Ms Engel visited Ms Coyle and stated that she was not happy with the way in which Mr Graham was implementing her development plan. Ms Coyle had an informal discussion with Mr Graham, and between Mr Graham and Ms Engel, the issue was resolved.

[140] Following the incident of 11 February 2016, Ms Coyle notified the Mines Inspectorate of the incident in order to meet statutory obligations.

[141] On 15 February 2016, after having listened to the two-way radio exchange at [48], Ms Coyle instructed Mr Brown that Mr Graham should be stood down from work pending the outcome of the investigation. By this date, with the information before her, Ms Coyle held concerns that Ms Engel had been in the exclusion zone, but primarily, it was Mr Andrews who was responsible for digging through the misfire. 35

[142] Ms Coyle instructed Mr Brown to conduct a show cause meetings with each of Mr Graham and Mr Andrews on 29 February 2016.

[143] With the information before her by March 2016, Ms Coyle was of the view that Ms Engel either knew, or should reasonably have been aware of the location of the exclusion zone and the misfire. Ms Coyle considered that Ms Engel had enough information before her to not have gone into the misfire zone.

[144] Ms Coyle considered Ms Engel’s disciplinary record, having received a Step 2 warning in July 2014, which was now in March 2016 a Step 1 warning. Ms Coyle considered Ms Engel’ actions in entering the misfire zone as an unintentional lapse. She had unintentionally placed herself and others at risk. Ms Coyle determined that Ms Engel should be issued with a Step 3 – Written Warning, and Mr Brown agreed with this decision.

[145] Ms Coyle was aware and approved of Mr Brown’s intention to meet with Ms Engel and issue to her the written warning.

[146] Following Mr Brown and Ms Newnan’s meeting with Ms Engel on 23 March 2016, and with what she had been informed had been discussed, Ms Coyle informed Mr Brown and Ms Newnan this information needed to be investigated. Ms Engel’s written warning should be retracted, and the investigation re-opened. Ms Engel was to provide an additional account of the incident.

[147] Ms Coyle was satisfied that following the second investigation, Ms Engel had been aware that Mr Andrews had dug through the misfire. She concluded that Ms Engel had failed to take appropriate action to report the incident. 36 Further, she concluded that Ms Engel had failed to disclose the conversation she held with Mr Andrews at 3.26am and overhearing the two-way radio conversation between Mr Andrews and Mr Graham at 4.08am.

[148] On receipt of the show cause response from Ms Engel, Ms Coyle stated that she was frustrated and disappointed that Ms Engel had hidden information from the business relevant to the investigation of the incident. She considered Ms Engel’s response lacked integrity.

[149] Ms Coyle did not accept Ms Engel’s assertion in the response letter that Ms Engel had felt uncomfortable and intimidated during the meeting with Mr Brown and Mr Graham in the meeting of 14 February 2016. Ms Coyle considered that Ms Engel could have approached her to discuss any concerns she might have had in the six week period following the meeting, and she had not. Their paths had crossed twice and Ms Engle had not raised any concerns.

[150] Ms Coyle did not accept Ms Engel’s assertion in the response letter that she had been informed that at no time was she required to attend meetings with Mr Graham and Mr Andrews.

[151] Ms Coyle did not agree with Ms Engel’s assertion that Mr Graham had been stood down from work effective 12 February 2016. Ms Coyle was certain that Mr Graham had been stood down from work on 15 February 2016.

[152] It was Ms Coyle’s view that all workers in the Prestrip Department are aware of their obligations to report all facts relating to an incident. Ms Coyle considered Ms Engel’s conduct in failing to disclose relevant information to Mr Brown was very serious and contrary to Ms Coyle’s expectations. 37

[153] Ms Coyle considered Ms Engel’s actions in failing to report the incident unacceptable. It is Ms Coyle’s evidence that she lost confidence in Ms Engel’s ability to perform her role safely, and she did not hold any confidence that should Ms Engel perform work at the Mine, a similar incident would not occur.

[154] Ms Coyle took into consideration that Ms Engel had been involved in a HPI in July 2014, and she would be aware of the steps undertaken at the Mine when a HPI arises. It is Ms Coyle’s evidence that the ‘whole circuit is immediately shut down and the incident scene is secured. This did not occur during the night shift on 10 - 11 February 2016.’ 38

[155] Ms Coyle did not accept Ms Engel’s assertions that the Minestar data not working correctly constituted a mitigating circumstance. Ms Coyle concluded that if Ms Engel had any concerns with Minestar, she could have made contemporaneous inquiries.

[156] It is Ms Coyle’s evidence that she considered Ms Engel’s response and determined that she had no alternative than to terminate Ms Engel’s employment. Mr Brown met with Ms Coyle, and Ms Coyle declared that Ms Engel’s employment should be terminated. Mr Brown agreed with the decision. Ms Newnan was informed of the decision and supported the decision.

Dismissal effected

[157] On 15 April 2016, Ms Coyle was present by video conference at the meeting with Ms Engel to effect the dismissal. Ms Engel had with her a support person. A written termination letter was issued at this meeting. A payment of four weeks’ wages in lieu of notice was made.

[158] The termination letter included a reason for the termination that Ms Engel was in breach of a CVM Standard – Event Management. This standard was not specifically referred to in the show cause letter which was provided to Ms Engel on 6 April 2016.

[159] It is Ms Coyle’s evidence that she agreed to the inclusion of the reference to a breach of the CVM Standard – Event Management in the termination letter. While employees at operational levels are not required to be familiar with the document in detail, it is the source of workers’ obligations to immediately report all incidents which occur at the Mine to their Supervisor.

Mr Graham’s employment terminated

[160] On 29 February 2016, with the information available to it, CQS issued to Mr Graham a show cause letter. Mr Graham responded in writing the same day.

[161] As a result of CQS learning from Ms Engel what it did during the meeting of 23 March 2016, Mr Graham was issued with an amended show cause letter dated 4 April 2016. The letter referred to the two-way radio recordings between Mr Graham and Mr Andrews at 4.08am. Mr Graham responded on 5 April 2016 and his employment was terminated on 12 April 2016.

[162] Mr Brown had earlier been involved in Mr Andrews’ dismissal on 15 March 2016. Ms Lewis received a Step 1 – verbal warning for her involvement in the incident.

Ms Engel’s closing submissions

[163] It is Ms Engel’s submission that Mr Brown made an ‘indispensable contribution’ to Ms Coyle’s decision to terminate Ms Engel. It is submitted that Mr Brown made a number of errors in the two investigations, and accordingly, the decision to terminate Ms Engel was ‘affected’ or ‘infected’ by Mr Brown’s incompetence.

[164] The meeting of 14 February 2016, it is submitted was one where Ms Engel was asked specific questions regarding the early hours of 11 February 2016. Having been asked and answered very specific questions, it was not necessary for Ms Engel to have elaborated beyond the time put by Mr Brown; either 3.15am or 3.23am.

[165] Ms Engel submits that there was no valid reason for the dismissal that related to her conduct or capacity (s.387(a)) based on the fact that the primary allegation of dishonesty cannot be substantiated and neither of the other allegations - entry into the misfire exclusion zone and failing to report - whether individually or cumulatively, provide a valid reason for termination.

[166] Ms Engel submits that the termination is unjust or unreasonable because she was not given an opportunity to respond to one of the reasons for termination CQS now relies upon, the CVM as to Event Management. It is further submitted that Ms Engel had not been previously warned of the conduct that related to her termination, and given the size of CQS’s operations, a more thorough investigation should have occurred.

[167] Ms Engel submits the termination was harsh due to her length of service and work record, the disproportionate impact being dismissed by CQS and her future in the mining industry and the impact of the termination on her personal and economic circumstances.

Ms Engel’s submissions on valid reason – Section 387(a)

[168] Ms Engel relies on a decision of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373], which has been widely followed in the Commission and its predecessor, which said in relation to the statutory predecessor to s.387(a):

"In its context in s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1).At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operation requirements of the employer's business."

[169] In accordance with the remarks of Moore J in Edwards v Giudice and Ors [1999] FCA 1836, Ms Engel submits that in considering “valid reason”, the Commission must firstly make a finding of fact as to what actually occurred, which necessarily includes a consideration of the entire relevant factual matrix. In undertaking this task, the principle expressed by the Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd Print S4213 (17 March 2000) at [24] is apposite:

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[170] Once the necessary finding(s) of fact has been made, the second task for the Commission to undertake is to consider whether Ms Engel’s actual conduct was of sufficient gravity to justify termination.

[171] In making the relevant findings, it is submitted that in matters of this type which have led to grave consequences for the accused person, the Commission should closely scrutinise the evidence put by CQS and require that it is clear, cogent or there is strict proof before holding any such allegation proved 39. CQS bears both the onus of establishing that any alleged misconduct took place40 and the onus of establishing a valid reason41.

[172] It is Ms Engel’s submission that mere assertions by CQS about (for example) the characterisation it has chosen to give to conduct, performance or work history will not be sufficient to discharge this evidentiary onus. It is incumbent on CQS to prove the alleged misconduct and poor performance to the relevant standard (by way of admissible evidence). A failure by CQS to do so must result in a finding that the relevant assertion is not proven.

[173] It is Ms Engel’s submission that based on the above principles, it is submitted that there is no valid reason for dismissal.

Ms Engel’s submissions on Doctrine of Condonation

[174] Ms Engel relies on a decision of Heugh v. Central Petroleum Ltd [No 5] [2014] WASC 311 where it was held:

“Under the common law a summary dismissal can be supported by any legal justification which in fact existed at the time of termination, irrespective of whether the justification was known or relied upon: Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21. (1931) 45 CLR 359. Concut Pty Ltd v Worrell. Downer EDI Ltd v Gillies [2012] NSWCA 333. However, an employer is not entitled to justify termination for misconduct not relied upon at the time of termination if the employer condoned the misconduct or waived its right to terminate on the ground of that misconduct. An employer who has full knowledge of the misconduct of an employee and who makes a decision to continue to employ the employee cannot at a later date dismiss him summarily on the basis of the employee's known misconduct: Rankin v Marine Power International Pty Ltd [2001] VSC 150. It is said that the employer has elected to continue the employee in his service or waived his right to dismiss the employee summarily and thereby condoned the misconduct. However, no such waiver, condemnation or election can take place until the employer has full knowledge of the misconduct: Rankin [354] (Gillard J).”

[175] It is submitted that in determining to issue to Ms Engel a Step 3 warning on 23 March 2016, CQS had condoned Ms Engel’s conduct in respect of parts of her conduct relevant to the incident. At common law an employer may not rely upon any conduct by an employee in respect of which it elected to waive the right to terminate or impose some other form of penalty.

[176] It is Ms Engel’s submission that, having been issued with a Step 3 warning, later withdrawn, that particular conduct could not have been relied upon to found a reason for termination. If that submission is accepted then CQS must rise and fall based on the alleged dishonesty alone. If that submission is not accepted then it nevertheless serves to demonstrate the relative gravity of that conduct, in that it does not of itself provide a valid reason for termination.

Ms Engel’s submissions on breach of policy

[177] CQS has listed breaches of policy in the termination letter. Ms Engel submits that it is clear on the evidence that she was not trained in two of those policies, being the SOP as to Drill & Blast and the CVM as to Event Management.

[178] Ms Engel relies on a decision of Flanagan and others v Thales Australia Limited T/A Thales Australia. 42Commissioner Bull (as he was then) relevantly stated:

‘Having policies regarding workplace behaviour without providing adequate training for employees on those policies compromises employers’ efforts to improve workplace behaviour and reduces the effectiveness of a written policy. (see Caton v Richmond Club Limited). In the decision of SDP Williams in National Union of Workers and AB Oxford Cold Storage Co. Pty. Ltd the Senior Deputy President noted at paragraph 23:

Strict and inflexible adherence to and application of policy can and, often does, lead to unfairness. In my view, in determining to terminate Mr Millard’s employment, the employer gave undue weight to the application of its policy and insufficient and inadequate consideration to circumstances which might have justified the application of an alternative penalty. In this respect, I particularly have in mind Mr Millard’s record as an employee, the nature of the altercation and the lack of any injury suffered by either participant or onlooker and the likelihood that Mr Millard would act in the same way again. To have applied a lesser penalty than termination of employment would not have jeopardised the integrity of the Code of Conduct.’

[179] Ms Engel submits that CQS is unable to rely on breaches of these polices as valid reasons to justify her termination.

[180] It is Ms Engel’s submission that CQS has included in their notice of termination a breach of policy which CQS had not previously raised. CQS had a number of opportunities to raise the alleged breach of this policy both prior to the termination, in the show cause notice and during the termination meeting, but, significantly, did not do so until the notice of termination. It is submitted that CQS failure to do so and attempts to retrospectively rely on it must fail. Further, the substance of the breach of that policy is denied by Ms Engel. 43

Ms Engel’s submissions on opportunity to respond – Section 387(c)

[181] Ms Engel relies on a number of decisions, including the decision of Chief Justice Wilcox in the Industrial Relations Court of Australia in Thomas v Ralph Lynch trading as Bellingen Grocery, IRCA, unreported, 20 December 1996, where he made the following remarks:

“One of the purposes of Division 3 of Part VIA of the Act was to improve the way employers treat their employees. It is conducive to that purpose to interpret s170DE(1), in a situation like this, as requiring that, before a notice of termination of employment is given the employer attempt a real discussion with the employee about the best way of handling the problem confronting them both.”

[182] Further, Ms Engel relies on a decision of Mr Zac Mahoney v Bechtel Construction (Australia) Pty Ltd where Commissioner Booth held:

“An “opportunity to respond” is meaningless unless the employer gives proper contemplation to and consideration of the responses. It is not just whether the Applicant participated in unlawful industrial action that should have been considered, but whether there were any unique circumstances applying to the Applicant. There were. They were not adequately considered. 44”

[183] Ms Engel submits that CQS failed to properly and genuinely contemplate and consider her responses. So much is evident from Ms Coyle’s failure to interrogate Ms Engel and her ‘hollow’ claims to have interrogated the version(s) of Mr Brown. Further, Mr Brown failed to give Ms Engel’s vehement denials of having ‘lied’ at the meeting of 23 March 2016 due, or any, consideration.

[184] It is Ms Engel’s submission that if CQS had properly considered her responses to the allegations they would have found that Ms Engel did not fail to disclose answers, and she was not trained in policies that CQS state that she had breached.

Ms Engel’s submissions on warnings for unsatisfactory performance – Section 387(e)

[185] Ms Engel relies on a decision of Fastidia Pty Ltd v Goodwin (unreported, AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280) where a Full Bench of the Australian Industrial Relations Commission considered the equivalent provision of the Workplace Relations Act 1996, being s.170CG(3)(d). At paragraph [43], the Full Bench held that the criteria for a warning to meet the requirements of the provision were that it must:

“* identify the relevant aspect of the employee’s performance which is of concern to the employer; and
* make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”

[186] A mere exhortation for the employee to improve their performance is not sufficient to make it clear that the employee’s employment is at risk unless the performance issue is identified.

[187] It is Ms Engel’s submission that in applying the above, CQS had not previously identified that any of the relied reasons for termination were concerning/unsatisfactory or that her employment was in danger. Any prior disciplinary action against Ms Engel was unrelated.

Ms Engel’s submissions on Size of Employer and Degree of HR expertise – Section 387(f) and (g)

[188] Ms Engel submits that there were a number of procedural deficiencies in investigating the matter including the appointment of partial investigators, the presence of Mr Graham in the investigative meeting, the inexplicable failure to ask Ms Engel about the matter which she is now alleged to have failed to disclose and the failure of Mr Brown or Ms Coyle to cause Mr Brown to be removed when he clearly pre-judged the second investigation in a manner adverse to Ms Engel.

[189] Ms Engel submits that CQS is a large organisation that should not be excused for any procedural deficiencies. If no procedural deficiencies had occurred Ms Engel submits she would not have been unfairly dismissed.

Ms Engel’s submissions on other relevant matters – Section 387(h)

[190] In accordance with s381 of the Act and in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95, it is submitted that Ms Engel was denied a fair go allround. It is submitted that Ms Engel was:

(a) terminated for failing to disclose information in a meeting where theindividual who was subject of the investigation was present, thereby infecting theintegrity and findings of the investigation;
(b) terminated for failing to disclose information in a meeting when she had notbeen asked to disclose that information and/or was of the belief that theinformation was common knowledge;
(c) terminated for breaching policies of which she had not been trained in orhad knowledge of; and
(d) terminated based on reasons which CQS had previouslycondoned, and in effect, surrendered their right to terminate upon.

[191] Ms Engel submits that weight should be attached to her length of service and work record with CQS. 45 Ms Engel was by all accounts a good and decorated employee.

[192] It is submitted that Ms Engel’s period of service is a factor the weighs in favour of the termination being considered harsh.

[193] In accordance with CQS’ own policies, Ms Engel was due to have her only warning discharged in a few months’ time.

[194] Consistent with past decisions of the Commission and its predecessor 46, emphasis should be placed on resolving whether termination was disproportionate to the conduct. In these circumstances, it is submitted that termination, considering the severe consequences it has had for Ms Engel, is manifestly disproportionate to the actual conduct.

[195] It is submitted that it will now be almost impossible for Ms Engel to find comparable full time permanent employment in the mining industry. Ms Engel submits she has applied for more than 25 jobs and only been able to mitigate her loss to a very limited extent.

Remedy

[196] Ms Engel seeks reinstatement to her former position. If reinstatement is considered inappropriate, Ms Engel seeks compensation in the order of 26 weeks’ pay less four weeks that has been paid in lieu of notice.

CQS’s closing submissions

CQS’s submissions on valid reason – s.387(a)

[197] CQS submits that section 387(a) of the Act requires a consideration of whether there was a valid reason for the termination of employment related to the person’s capacity or conduct.

[198] In considering this aspect, the Commission must firstly make a finding of fact as to what actually occurred 47 which necessarily includes a consideration of the entire relevant factual matrix48. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. Rather the Commission is required to determine whether the alleged conduct took place and what it involved on the basis of the evidence before it.

[199] Where the employee’s conduct affects the safety and welfare of other employees it is open to find that this is a valid reason for the dismissal. The kind of conduct that is relevant need not be wilful, malicious or intentional conduct, but conduct that can imperil or put other employees in the workplace in jeopardy 49.

[200] CQS submits that the Commission would find that there was a valid reason for Ms Engel’s dismissal as a result of her conduct arising from the incident including:

• Upon becoming aware of Mr Andrews’ conduct in digging through the misfire exclusion zone, Ms Engel failed to take sufficient steps to report the matter and failed to report her own conduct in breaching the misfire exclusion zone;



• She left the area at the conclusion of her shift without taking any steps to ensure that the area was made safe again for other employees and/or knowing that it remained unsafe as there was a misfire in the pit with no demarcation around it; and



• Ms Engel failed to disclose important information that was relevant to the investigation into a HPI.

CQS’s submissions on failure to report

[201] It is uncontroversial that at the time of the incident Ms Engel knew about the misfire that was present in the area underneath the shovel bench where she was working that night. Ms Engel also was aware of what a misfire was and the risks involved with a misfire, specifically which it had the potential to explode.

[202] Upon realising that not only had Ms Engel breached the exclusion zone but Mr Andrews had dug out a significant portion of that area, Ms Engel contacted Mr Andrews on the two-way radio and then stopped work on the Wheel Dozer and went to speak to Mr Andrews in person about the situation.

[203] In her diary notes, Ms Engel records the following statement:

‘He, Lucky your (sic) not ok, you’ve just dug thru (sic) the misfire. WTF! Lucky are you listening to me you’ve just thru (sic) the misfire, we/you can’t hide this! Need to tell Andy straight away’

[204] It is CQS’s submission that it is apparent from this exchange that Ms Engel firstly, appreciated the seriousness of the situation and secondly, recognised that both she and Mr Andrews had an obligation to immediately report the matter to their supervisor.

[205] Ms Engel’s evidence is that she left the reporting of the incident up to Mr Andrews so that he could take responsibility for his actions. However, at that time Ms Engel also noted that Mr Andrews appeared to be in a trance, was not listening to her and potentially was not in a suitable mental state.

[206] Subsequent to this conversation with Mr Andrews, Ms Engel resumed work on the shovel. Despite making arrangements with Mr Andrews for him to report the safety incident Ms Engel conceded that she did not see anyone come down to inspect the area, or to take steps to secure the area or to speak to others about what had occurred. She herself thought this was strange. 50

[207] Therefore, despite having concerns regarding Mr Andrews’ state of mind at the time and despite not seeing any actions which would suggest that the matter had in fact been reported to a supervisor, Ms Engel left the Mine at 6am without ensuring that the matter had in fact been brought to the attention of someone senior.

CQS’s submissions on failure to take steps to ensure the safety of others

[208] It is not contested that when Ms Engel left the Mine at the end of her shift on 11 February 2016, apart from one cone remaining on top of the dig face there was nothing to indicate to other coal mine workers that there was a misfire present in that area. It is also not contested that Ms Engel left the Mine at that time knowing that the area was in this condition and that there was a misfire present.

[209] CQS submits that Ms Engel leaving the Mine at the end of her shift without ensuring that the matter had been properly reported and without ensuring that the area was secure and safe for others is a serious matter.

CQS’s submissions on failure to disclose information

[210] CQS formed a view that Ms Engel had deliberately withheld information from its investigation concerning her knowledge of Mr Andrews’ conduct on the night in question as a result of what transpired over the course of the investigation from 11 February 2016 up until the meeting on 23 March 2016.

[211] On 11 February 2016, Ms Engel returned to the Mine for her next shift. She was made aware of her investigation of the incident and was invited to attend a meeting with Mr Graham and Mr Andrews to discuss the incident and to perform a “5 whys” exercise.

[212] Ms Engel’s evidence was that this meeting focused mainly on Mr Andrews’ actions in digging out the misfire exclusion zone. However, during this meeting Ms Engel contends that she told Mr Graham that she had inadvertently entered the misfire zone as well. There is no other evidence regarding what was said at this meeting apart from that of Ms Engel.

[213] CQS submits that it is critical to note that the evidence provided by Ms Engel at the hearing regarding this aspect is not contained in either of her statements filed in these proceedings, nor is it recorded in her diary.

[214] CQS urges the Commission to find that Ms Engel had not told Mr Graham that she had inadvertently entered the misfire zone at this meeting.

[215] Following this meeting Ms Engel was asked to complete a written statement about what had been spoken about at the meeting (and what she had earlier been working on). Ms Engel then produced her statement dated 12 February 2016. Relevantly this statement notes the following:

● Came back from crib 3pm, shovel relocated to the right of the misfire area, operator swap;

● Operating shovel 40 about a move from zone area 15-20 meters;

● Shovel still confirmed to go down at 5am for maintenance day shut down;

● Loaded last truck 4:40am;

● Shovel walked out and set up for down day;

● End of shift.

[216] CQS submits that it is significant that at no point in the statement did Ms Engel note:

● That she had entered the misfire exclusion zone after returning from her 2:30am crib break;

● That Mr Andrews had entered the misfire exclusion zone and dug through a portion of it and she was aware on the night in question that he had done this;

● That she had had a conversation about this with him;

● That she had overheard the two-way radio conversation between Mr Andrews and Mr Graham at 4.00am regarding this.

[217] CQS submits that this was Ms Engel’s opportunity to formally inform CQS of her complete knowledge of the incident, and she failed to include relevant information.

[218] CQS submits that Ms Engel had not raised any concerns she held with respect to Minestar at the 5 Whys meeting. In her evidence before the Commission she stated that it had taken seven to ten minutes to log into Minestar following her return from crib break at around 3.00am. CQS submits that the unchallenged evidence of Mr McEvoy, that the wheel dozer Ms Engel was operating took only 37 seconds to log on, should be accepted by the Commission.

Meeting of 23 March 2016

[267] It is Ms Engel’s submission that following the information provided by her on 23 March 2016, Mr Brown accused her of lying, and his reporting of Ms Engel having admitted to withholding information during the investigation (denied by Ms Engel) then infected the second investigation, and ultimately Ms Coyle’s decision to terminate Ms Engel.

[268] I accept that Mr Brown reacted in a very startled, concerned way at what he was told by Ms Engel during this meeting. It was very important information that he was learning for the first time. It is Mr Brown’s evidence that he was ‘blown away’ with what he was learning, and he considered that Ms Engel had been dishonest with the company from the time he had interviewed her on 14 February 2016.

[269] It is clear that many things were running through Mr Brown’s mind upon learning this information. Mr Brown’s evidence is that he immediately realised that if Ms Engel knew of having entered the misfire, and knowing nothing had been done to secure the area, subsequent shifts of workers were exposed to the potential hazard. 60

[270] It was put to Mr Brown in cross-examination that having formed the view that Ms Engel had ‘lied’ during the first investigation, and was now ‘confessing’ to having not revealed information, he should have withdrawn from the investigation. It was Mr Brown’s evidence that he needed to continue to investigate Ms Engel’s new information, and in any event, he was charged with continuing the second investigation at the direction of Ms Coyle.

[271] I have formed the view that there was some harm to Ms Engel in the immediate discussion between Mr Brown and Ms Coyle following the meeting of 23 March 2016. It is clear that Mr Brown passionately revealed to Ms Coyle this new information, and his immediate views that Ms Engel had ‘lied’. I also find that Mr Brown informed Ms Coyle that Ms Engel had said words to the effect that she had withheld information from the investigation.

[272] On Ms Coyle learning this information from Mr Brown, I am satisfied that the correct path was taken by the respondent in withdrawing the warning letter and convening a second investigation. Should Mr Brown have continued as investigator?

[273] It is preferable that Mr Brown step aside from being the company-appointed investigator at this time, however I do not consider it a fatal decision made by CQS. Mr Brown was best placed to obtain the further information from the various sources that he did. The information that he obtained in the second investigation was factual. I am satisfied that Mr Brown conducted himself properly, except for the one instance in reporting the meeting of 23 March 2016 to Ms Coyle.

[274] Ms Engel’s written statement of 23 March 2016 provided Mr Brown with further information so that the second investigation could continue. This was pertinent information. Ms Engel was stood down during the investigation, and I am satisfied that this was Ms Coyle’s decision, and a standard practice.

[275] While at [273] I have concluded that it was preferable that Mr Brown step aside from being the company-appointed investigator in the second investigation, it does not follow that there was any adverse action taken directly or indirectly by Mr Brown in investigating the incident. There was no unfairness to Ms Engel. On the information available to the Commission, Mr Brown obtained all relevant information in a proper fashion. He did not undertake his inquiries in what could be described as a ‘witch hunt’. He was not over-zealous.

[276] The show cause letter issued to Ms Engel does not contain any of the concerns that Mr Brown had that Ms Engel had purportedly ‘lied’ during the investigation. The show cause letter states:

‘Further investigation has also found that:

• At approximately 3.16am you identified the misfire had been ‘dug out’ and you failed to take appropriate action to report the event



• Throughout the investigation you failed to disclose the conversation you had with Lucky Andrews at approximately 3.26am about the misfire being ‘dug through’



• Throughout the investigation you failed to disclose the conversation you heard between Lucky Andrews and Andrew Graham at 4:08am on the 11 February 2016, whereby Lucky informed Andrew that he had dug through the demarcation zone’

[277] I am satisfied that through the show cause letter, CQS was determining the last two bullet points above; did Ms Engel fail to disclose her knowledge of the incident. Ms Engel was not being tasked to rebut an accusation about her having ‘lied’ during the investigation. In Ms Engel’s show cause response she answered that she didn’t feel she had a safe place to ‘speak up’ because Mr Graham was in the room. Ms Engel’s response does not adequately address CQS’s concerns it held that during the investigation Ms Engel’s had failed to disclose relevant information.

[278] I am satisfied that the second investigation commenced at Ms Coyle’s direction was conducted by Mr Brown appropriately.

Ms Coyle’s consideration of the show cause response

[279] Ms Coyle’s evidence is that it was her decision to dismiss Ms Engel having received and considered her show cause response.

[280] With respect to Ms Engel’s failure to disclose relevant information during the investigation, Ms Coyle considered that Ms Engel’s behaviour lacked integrity. The suggestion that Ms Engel failed to disclose additional information because she had been uncomfortable and intimidated during the meeting was dismissed by Ms Coyle.

[281] I accept Ms Coyle’s position on this. Ms Engel did have opportunity to address Ms Coyle throughout the course of the investigation if she considered that it was not properly being undertaken. She did not avail herself of this opportunity, even when her earlier experience with Ms Coyle was that Ms Coyle had assisted in finding in-part a grievance in her favour.

[282] I accept Ms Coyle’s rejection that at no time had Ms Engel been informed that she would not be required to attend meetings with Mr Graham and Mr Brown. It had not been put by Ms Engel until the show cause response letter, and Ms Coyle was correct to reject this assertion as a mitigating factor as to why Ms Engel had not properly revealed the extent of her involvement in the incident.

[283] In my view, Ms Coyle fairly determined that Ms Engel had failed to report the incident. Ms Coyle did not accept Ms Engel’s position that it had been adequately reported to Mr Graham and she knew this because she overheard a brief radio conversation. Ms Coyle was right to conclude that Ms Engel’s obligation was to immediately report the incident to Mr Graham. I accept Ms Coyle’s conclusion that she formed the view that if Ms Engel were to return to the Mine, a similar incident might not be reported in the future. 61

[284] With regard to Ms Engel’s knowledge of having breached the exclusion zone, Ms Coyle did not accept Ms Engel’s submissions that part of the reason for breaching the zone included Minestar not operating effectively. Ms Coyle considered this reason not to be a satisfactory explanation.

[285] I accept that it was open to Ms Coyle to make this conclusion, and accept that there were options available to Ms Engel if she considered at any time during the shift that she held concerns that she or her colleagues might be approaching the exclusion zone.

[286] Ms Coyle considered all of the material before her and determined that while it was unfortunate to have to terminate Ms Engel’s employment, she considered that she did not have any alternative to termination.

[287] I am satisfied that Ms Coyle gave all relevant and appropriate consideration to the decision to terminate the employment with the information that was available to her as a result of the second investigation. I accept that Ms Engel would not have known that it had been incorrectly stated that she had been purported to have said that she withheld information from the first investigation. I am satisfied that at the time Ms Coyle made the decision to dismiss Ms Engel her reasons were as articulated in the show cause letter, and the regard she had for the explanations put by Ms Engel in the show cause response. For this reason, I do not consider that Ms Coyle’s decision was infected or affected by the incorrect information stated to her on 23 March 2016 when Mr Brown and Ms Newnan presented at her office.

[288] It is necessary, however, to determine if the conduct occurred as alleged.

[289] For the reasons stated above and included below, I am satisfied that in relation to the events of 10 and 11 February 2016, Ms Engel:

(a) Was aware that a misfire had occurred on 10 February 2016, and that special care would need to be taken to ensure the exclusion zone was not breached;

(b) Knew of the importance of a misfire zone and special obligations, even though she was not specifically trained in the relevant SOP;

(c) More than likely, on the evidence relevant to her attendance at work on 4 November 2015, participated in a Misfire Quiz. If she did not, I do not consider it of significant weight to counter all of the other findings;

(d) Did not pay adequate attention to her surroundings on 11 February 2016, with knowledge of cones falling from above (from 11.24pm on 10 February 2016) that may have meant that her colleague, Mr Andrews was digging into the exclusion zone;

(e) Did have adequate access to Minestar within a reasonable period of time (37 seconds) after attempting to log on after returning from crib break;

(f) That other sources of determining the site of the exclusion zone were available to Ms Engel if she considered that Minestar was not immediately available, including contacting Mine Control or her Supervisor;

(g) Unintentionally entered the exclusion zone and upon realising her actions, took the safest known path to exit the exclusion zone;

(h) Appropriately addressed with Mr Andrews her concerns about them both having entered the exclusion zone;

(i) Encouraged Mr Andrews to report the incident at his next crib break;

(j) Failed to directly report the incident to Mr Graham either over the two-way radio or in person;

(k) Failed to ensure Mr Andrews reported the incident and the extent of the incident to Mr Graham adequately (noting that the brief two-way radio conversation does not constitute an adequate reporting of the incident);

(l) Failed to discuss the incident with Mr Graham when Ms Engel was in Mr Graham’s presence shortly after the incident; and

(m) In failing to report the incident, exposed following shifts to a HPI until the incident was discovered.

[290] For the reasons stated above and included below, I am satisfied that in relation to the first investigation of the incident, Ms Engel:

(a) Failed to adequately discuss with Mr Graham and Mr Andrews during the 5 Whys meeting the incident, including reporting of the incident and awareness that Ms Engel had discovered the exclusion zone breach, encouraged Mr Andrews to report it to Mr Graham and her entry into the exclusion zone;

(b) Completed a detailed account of the events of 10 and 11 February 2016, except for all relevant information relating to the incident and her involvement in it;

(c) Attended a meeting on 14 February 2016 with Mr Brown and Mr Graham and failed to give a proper account of the incident which cannot be mitigated by reasons that Ms Engel only answered questions that she was asked;

(d) Did not inform Mr Brown and Mr Graham at this meeting that she had unintentionally and unknowingly entered the exclusion zone, for reasons that this information would have generated further inquiry;

(e) Was not disadvantaged by Mr Brown or Mr Graham’s involvement in the investigation;

(f) During the meeting of 23 March 2016 did not state that she had deliberately withheld information from the investigation.

[291] For the reasons stated above and included below, I am satisfied that in relation to the second investigation of the incident, Ms Engel:

(a) Did not claim to have reported to Mr Graham during the meeting of 11 February 2016 that she had unintentionally and unknowingly entered the exclusion zone;

(b) Did not claim to have reported to Mr Brown and Mr Graham during the meeting of 14 February 2016 that she had unintentionally and unknowingly entered the exclusion zone;

(c) Had an adequate opportunity to respond to the show cause letter issued.

[292] I do not accept Ms Engel’s submissions on the ‘doctrine of condonation’. I am satisfied that the information revealed by Ms Engel during the meeting of 23 March 2016 was so significant that it was just and proper to render the planned Step 3 warning void. CQS had completed the first investigation and come to, in my view, a just decision to issue a Step 3 warning with the information that it had available to it at the time.

[293] Upon learning what it did on 23 March 2016, it was again just and proper to re-open the investigation. It is not correct to say that CQS should be prevented from relying on that earlier part of Ms Engel’s conduct.

[294] With respect to the policies Ms Engel is said to have breached, in the show cause letter it was put to her that she had breached the SOP Blasting and Dealing with Misfires, the Code of Business Conduct Charter Value – Sustainability, and the code of Business Conduct Charter Value – Integrity. Ms Engel provided her show cause response rejecting breaches of the codes of conduct, and denying having been specifically trained in the SOP.

[295] CQS found that Ms Engel had breached the SOP. I accept CQS’s position that it was not necessary for Ms Engel to have been specifically trained in the SOP. Ms Engel’s evidence is that she knew of her obligations with respect to a misfire in the Mine. Her actions on the night of the incident demonstrated that knowledge. I do not find that Ms Engel’s conduct can be excused because she was not expressly trained in the particular SOP. She knew enough of the SOP to know the relevant conduct expected of her.

[296] CQS informed Ms Engel in the termination letter issued to her that she was also found to have been in breach of the ‘CVM Standard – Event Management, Section 3.2 prevent Escalation’ by virtue of the fact that she had ‘failed to notify the Supervisor responsible for the persons involved or responsible.’

[297] I accept that there was a lack of procedural fairness afforded to Ms Engel in making a finding at termination that she was in breach of a CQS Standard, without having had the opportunity to respond to the allegation. While Ms Coyle might have considered it necessary to include the CQS Standard in the termination letter, it formed a part of the reason for the termination, and it was unfair to Ms Engel that she not be given an opportunity to address this allegation.

[298] I find, however, that Ms Engel did make suitable concessions in the show cause response with respect to her failure to ensure the incident was properly reported. In the response, Ms Engel acknowledges twice, in hindsight, that she should have ensured the incident was reported differently. She acknowledges that she could have ‘stopped the whole shovel circuit and notified the Supervisor’.

[299] The concession made by Ms Engel above was an appropriate concession to make at the time. It sits in juxtaposition to the claims made by Ms Engel that she had, through Mr Andrews reported the incident to Mr Graham.

[300] While I accept there was a lack of procedural fairness to Ms Engel at [297], Ms Engel rightly and appropriately conceded implicitly a similar if not identical breach; that is a failure to notify the Supervisor of the incident. I do not consider the lack of procedural fairness to affect the validity of the dismissal.

[301] I have had regard for the procedural fairness deficiencies above, and I am satisfied having determined that Ms Engel engaged in the conduct resulting in her dismissal, that despite the procedural fairness deficiencies, Ms Engel’s conduct was of sufficient gravity to justify termination of her employment. Accordingly, I find that there was a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[302] Ms Engel was notified of the reason for her dismissal. This is a neutral consideration in determining whether the termination of Ms Engel’s employment was harsh, unjust or unreasonable.

Opportunity to respond - s.387(c)

[303] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.⁶²

[304] I do not accept that CQS failed to properly and genuinely contemplate and consider Ms Engel’s responses. It is clear that upon learning the information revealed in the meeting of 23 March 2016, Ms Engel was then asked to provide further information in writing. She was given the opportunity to do so, and at this time revealed significant information relevant to the incident that had not previously been known to CQS.

[305] A satisfactory show cause letter was put to Ms Engel for her to respond to while having been suspended with pay. Ms Engel then had an adequate period of time to respond in writing.

[306] Whilst it is put that Ms Engel was not trained in the policies she is said by the respondent to have breached, the respondent determined that Ms Engel did not need to be completely across all of the detail of the policies; she needed to be aware of them and her general reporting obligations.

[307] Whilst it is clear Ms Engel disagrees with the decision made by the respondent to dismiss her, it cannot be said that the investigation was affected. Ms Engel was provided with an opportunity to respond to the allegations.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[308] Ms Engel was offered the opportunity to bring a support person with her to meetings held with management. There was no refusal by the respondent to allow a support person. This is a neutral consideration in determining whether the termination of Ms Engel’s employment was harsh, unjust or unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

[309] It is the respondent’s contention that Ms Engel’s dismissal related to misconduct and not unsatisfactory performance, and accordingly the submissions of Ms Engel are not relevant. I accept the submission of CQS. Ms Engel was not dismissed for unsatisfactory performance, so the issue of whether she had any prior warnings for unsatisfactory performance does not arise.

Impact of the size of the Respondent on procedures followed - s.387(f); and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[310] CQS is a large employer with a dedicated human resources function.

[311] Mr Brown did not determine Ms Engel’s dismissal and he has no authority to dismiss. I do not find that the concerns raised by him in a conversation with Ms Coyle of 23 March 2016 ultimately affected Ms Coyle’s decision to dismiss Ms Engel. I do not accept Ms Engel’s submissions that the size of the respondent’s enterprise meant that it should have done much better in the investigation.

[312] I disagree that there were procedural deficiencies significant enough to be visited upon the respondent so as to contribute to a finding that the dismissal was unfair.

[313] The size of CQS and the availability of dedicated human resources management specialists is a neutral consideration in determining whether the termination of Ms Engel’s employment was harsh, unjust or unreasonable.

Other relevant matters - s.387(h)

[314] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Ms Engel was harsh, unjust or unreasonable:

[315] I do not accept that Ms Engel was denied a ‘fair go all round’ as submitted by Ms Engel. Ms Engel claimed in the show cause response that she couldn’t adequately provide information during the meeting in which Mr Graham was present, but did not explain what information she would have otherwise disclosed if Mr Graham had not been present.

[316] Further, I do not accept that Ms Engel’s employment was terminated because during the meeting of 14 February 2016 she had failed to disclose information where that meeting she should have only answered questions put to her by Mr Brown. It was available to Ms Engel to provide all relevant information to CQS pertinent to the investigation. Ms Engel shared with Mr Richards her thoughts following the meeting, but said nothing to Mr Brown and Mr Graham that touched on pertinent parts of the investigation.

[317] I have addressed the other submissions made by Ms Engel above with respect to breaches of CQS policies and the doctrine of condonation.

[318] I have had regard to Ms Engel’s submissions with respect to her length of service and her otherwise satisfactory employment history. With regard to her length of service, employment of less than three years is not a long period of time, nor is it an insignificant period of time. While it was not expressly put by Ms Engel, I do acknowledge the importance of role-modelling and demonstration of gender equity of having a skilled and industry-practised female employee in the mining industry.

[319] I do not find, however, that Ms Engel’s unsatisfactory conduct can be given reduced weight in order to give some weight to Ms Engel’s service of less than three years and her gender in a male-dominated industry. This does not sway the balance required to be undertaken in favour of a finding that the dismissal was unfair.

[320] I also do not find that Ms Engel was an employee who had been free of disciplinary action in her time with CQS. The Step 2 warning letter issued to Ms Engel in June 2014 was given for a failure to adequately communicate. The June 2015 inquiry resulted in Mr Graham providing further coaching to Ms Engel to stress the importance of immediately reporting incidents in the workplace. These are relevant considerations, and it cannot be said that Ms Engel had been free of disciplinary action.

[321] I have also had regard to the consequences, said to be ‘severe’ to Ms Engel as a result of the dismissal. I do acknowledge that as a high-earning employee in an industry where jobs are not immediately available, the effect of the dismissal on Ms Engel has been significant. I accept that she has attempted to mitigate her loss. I do not, however, accept that the dismissal of Ms Engel and the resulting loss to her is disproportionate to the conduct engaged in by her.

Conclusion

[322] Having considered each of the matters specified in s.387, I am not satisfied the dismissal of Ms Engel was harsh, unjust or unreasonable.

[323] The dismissal of Ms Engel cannot fairly be characterised as a disproportionate response to her conduct.

[324] Accordingly, I find that Ms Engel’s dismissal was not unfair. The application is dismissed and an Order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

L. Tiley, Hall Payne Lawyers for the Applicant.

E. Freeman, of Counsel for the Respondent.

Hearing details:

5 and 6 September 2016 in Brisbane.

Final submissions:

Filed on 16 September 2016 for the Applicant.

Filed on 26 September 2016 for the Respondent.

Hearing on 25 October 2016 in Brisbane.

 1 Witness statement of Stuart Brown at [56].

 2 Ibid at [208].

 3 Ibid at [63].

 4 Ibid at [68].

 5   Ibid at SW7.

 6 Ibid at [25].

 7 Ibid at [27].

 8 Ibid at [29].

 9 Ibid at [32].

 10 Ibid at [35].

 11 Ibid at [196].

 12 Ibid at [203].

 13 Statement of Agreed Facts at [6].

 14 Witness statement of Stuart Brown at [42].

 15 Witness statement of Sarah Engel at [37].

 16 Witness statement of Stuart Brown at [210].

 17 Witness statement of Sarah Engel at [38].

 18 Ibid at [42].

 19 Ibid at [70].

 20 Ibid at [79].

 21 Witness statement of Stuart Brown at [135].

 22 Ibid at [98].

 23 Ibid at [105].

 24 Ibid at [122].

 25 Witness statement of Stuart Brown at [86].

 26 Witness statement of Sarah Engel at [133].

 27 Ibid at [146].

 28 Witness statement of Stuart Brown at [113].

 29 Witness statement of Sarah Engel at [152].

 30   PN1537.

 31 Witness statement of Stuart Brown at [168].

 32   Witness statement of Sarah Engel at [187(h)].

 33   Ibid at Annexure SE7, page 53.

 34 Witness statement of Brooklyn Coyle at [49].

 35 Ibid at [69].

 36 Ibid at [92].

 37   Ibid at [101(f)].

 38   Ibit at [101(h)].

 39   Briginshaw v. Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Limited v. Karajan Holdings Pty Limited

(1992) 110 ALR 449 at pp.449 and 450.

 40   See YEW v ACI Glass Packaging Pty Ltd 71 IR 201 per Wilcox CJ.

 41   See the decision of the Full Bench in Culpeper v Intercontinental Ship Management Pty Ltd [2004] AIRC 261

at [19] and Erskine v Chalmers Industries Pty Ltd (AIRC, Williams and Acton SDPP and Blair C, PR902746, 30

March 2001).

 42   Flanagan and others v Thales Australia Limited T/A Thales Australia [2012] FWA 6291 (7 September 2012)

at [199] and [222]. See also Queensland Rail v Wake PR974391 [2006] AIRC 663. (19 October 2006) and B, C

and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191.

 43   See paragraph [185] and [199] of the statement of Sarah Engel dated 27 July 2016.

 44   Mr Zac Mahoney v Bechtel Construction (Australia) Pty Ltd [2014] FWC 2756 at [99].

 45   See for instance Rail Corporation New South Wales v Abdul El Hawat [PR974345] at [24] and [25]. Bluescope

Steel Limited v Sirijovski [2014] FW[CFB 2593 at [69] and Lindsay Douglas Lawrence v Coal & Allied Mining

Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089.

 46   See the Full Bench decision of Selak v Woolworths Limited PR980513 [2008] AIRCFB 81 at [17].

 47   See Edwards v Guidice and Ors [1999] FCA 1836 at [7]

 48   See Allied Express Transport Pty Ltd v Michelle Anderson [1998] FCA 799 at pp.5.

 49   See Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969 (unreported, Richards SDP, 30 November 2007 at [102].

 50   PN488 to PN490.

 51   See Heugh v Central Petroleum Ltd [No 5] [2014] WASC 311 at [354].

 52 See statement of Sarah Engel at [38].

 53   See Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 and BHP Coal Pty Ltd v Schmidt [2016] FWCFB 1540

 54   Sayer v Melsteel[2011] FWAFB 7498 at [20]

 55   Witness statement of Sarah Engel at [133(b)].

 56   PN621.

 57 Witness statement of Sarah Engel at [144].

 58   Ibid at [147(b)].

 59   PN2153.

 60   PN1979.

 61   Witness statement of Brooklyn Boyle at [101(g)].

62 RMIT v Asher (2010) 194 IR 1, 14-15.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR589128>