Citation : [2004] WAIRC 11217 File No : FBA 25 of 2003 Catchwords: Industrial law - Effect of non-compliance with time limit in s 29(2) of the Industrial Relations Act - No application for, or acceptance of, referral under s 29(3) - Whether can accept referral nunc pro tunc - Whether waiver can apply - Whether denial of natural justice Legislation: Industrial Relations Act 1979 (WA), s 7, s 23(1), s 23A, s 26(3), s 27, s 29(1), s 29(2), s 29(3), s 44, s 90(3a) Industrial Relations Amendment Act 1993 (WA) Industrial Relations Commission Regulations 1985 (WA), reg 21B Interpretation Act 1984 (WA) Labour Relations Reform Act 2002 (WA) 3760 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. Result: Appeal upheld Category: A Representation: Counsel: Appellant : Mr A J Power Respondent : Ms C P Crawford Solicitors: Appellant : Jackson McDonald Respondent : Gibson & Gibson Case(s) referred to in judgment(s): CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 Coles Myer Ltd (t/as Coles Supermarkets) v Coppin & Ors (1993) 11 WAR 20 Commonwealth v Verwayen (1990) 170 CLR 394 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161 E J Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 107 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Hanssen Pty Ltd v CFMEU [2004] WAIRC 10828 Old Ferry Co Pty Ltd v Mario Gino Bertelli (1999) 79 WAIG 3547 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v McNeil (1922) 31 CLR 76 Re Monger; Ex parte Cross [2004] WASCA 176 Satie v Swan Television and Radio Broadcasters Ltd (1999) 79 WAIG 955 Westrail v Durham (1994) 74 WAIG 1882 Yong Jung Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 Case(s) also cited: Annetts v McCann (1990) 170 CLR 596 Arpad Security Agency Pty Ltd v FMWUA (WA Branch) (1989) 69 WAIG 1287 Australasian Society of Engineers, Molders and Foundry Workers v SECWA (1990) 71 WAIG 315 Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 Como Investments Pty Ltd v Federated Liquor and Allied Industries Employees' Union of Australia (Western Australian Branch), Union of Workers & Ors (1989) 69 WAIG 1004 Crown v McNeil (1922) 31 CLR 76 General Motors Holdens Ltd v Di Fazio (1970) 141 CLR 659 Kanda v Government of Malaya [1962] AC 322 Kioa v West (1985) 159 CLR 550 Lubovsky v Snelling (1944) KB 44 Maxwell v Murphy (1957) 96 CLR 261 Mayes v Mayes [1971] 1 WLR 679 Mobil Oil Australia Pty Ltd v Federal Commission of Taxation (1963) 113 CLR 475 O'Brien v Komesaroff (1982) 150 CLR 310 O'Rourke v Miller (1985) 156 CLR 342 Pantorno v The Queen (1989) 166 CLR 466 Re Coldham & Ors; Ex parte BLF (1985) 64 ALR 215 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors (1986) 66 WAIG 1553 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia & Ors (1993) 73 WAIG 1993 Romeo v Asher (1991) 100 ALR 515 Russell v Duke or Norfolk [1949] 1 All ER 109 SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760 Sinnathamby & Ors v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 State Energy Commission of Western Australia Salaried Officer's Association v Western Australia Industrial Commission (1975) 55 WAIG 747 Stead v State Government Insurance Commission (1986) 161 CLR 141 The University of Wollongong v Metawally (1984) 158 CLR 447 Wright v John Bagnall & Sons Ltd [1900] 2 QB 240 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3761 1 STEYTLER J (PRESIDING JUDGE): I have had the advantage of reading the judgment of McLure J. I agree with it and with her conclusion that the first ground of appeal should be upheld and that the second ground should not. 2 Like McLure J, while I find it difficult to see on what grounds the Commission would decline to accept a fresh referral under s 29(3) should it find that the referral was out of time, I consider that there is, nevertheless, good reason not to confirm the decision of the Full Bench. To do so would have the effect of confirming a decision made in proceedings in which the Commission's jurisdiction has not yet been established either by a finding that the referral was made within time or by a decision to accept a fresh referral under s 29(3). 3 Consequently, I agree that the appeal should be upheld, the orders made by the Full Bench should be set aside and the matter should be remitted to the Full Bench for a further hearing and determination in accordance with the reasons of the Court. 4 MCLURE J: The appellant is the former employer of the respondent. By a notice dated and filed in the Western Australian Industrial Relations Commission ("Commission") on 5 December 2002, the respondent referred to the Commission a claim under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) ("the Act") that she was unfairly dismissed from her employment by the appellant ("referral"). 5 Section 29(2) of the Act requires that a referral of a claim to the Commission under s 29(1)(b)(i) be made "not later than 28 days after the day on which the employee's employment is terminated". The issues in this appeal are whether the respondent made her referral within the time specified in s 29(2) of the Act; if not, whether the Commission has jurisdiction to hear the claim; whether the appellant can waive compliance with the time limit; if so, whether the appellant was denied natural justice on the issue of waiver; and if the Commission did err, whether this Court should grant relief. 6 The appellant relies on two grounds of appeal. The first concerns the waiver-related issues and the second, the jurisdictional-related issues. Background 7 The appellant carried on the business of mining at its Mount Pleasant mine at Kalgoorlie. The respondent was employed by the appellant as an underground technician. She performed shiftwork. At some time before July 2002 the respondent went on parental leave. Prior to her scheduled return to work, the appellant decided to replace underground technicians with geologists and to make the position of underground technician redundant. The appellant and the respondent exchanged communications concerning alternative positions for the respondent. It is not in dispute that in November 2002 the respondent's employment with the appellant terminated. If termination occurred before 7 November 2002, the respondent had failed to comply with the time limit in s 29(2) of the Act. 8 At first instance, Commissioner Gregor found that the respondent had not been dismissed but had resigned from her employment and, therefore, the Commission had no jurisdiction. He dismissed the claim. Although the appellant did not in its notice of answer and counter-proposal raise non-compliance with the time limit, it did so in oral submissions. However, the Commissioner did not rule on the question because of his finding on dismissal. 9 The respondent appealed to the Full Bench. The Full Bench upheld the appeal, finding that the appellant had dismissed the respondent and that the dismissal was unfair. It remitted the matter to the Commissioner to determine quantum. The President gave detailed reasons for decision with which Chief Commissioner Coleman and Commissioner Harrison agreed. The President dealt with the appellant's submission concerning the respondent's failure to refer the claim to the Commission within time as follows (at [123]): "[The appellant] waived any right to oppose the matter being heard out of time because it was subject to a limitation period, and for the reasons which I have set out in Hanssen Pty Ltd v CFMEU (unreported) (2004 WAIRC 10828), delivered 8 March 2004, (FB) in relation to periods of limitation under s 29(3) of the Act." 10 I infer the reference to s 29(3) is intended to be a reference to s 29(2) of the Act. Construction of s 29(2) and Consequences of Failure to Comply 11 The referral was made pursuant to s 29(1)(b)(i) of the Act which materially provides: "An industrial matter may be referred to the Commission - … (b) in the case of a claim by an employee - (i) that he has been harshly, oppressively or unfairly dismissed from his employment; or (ii) … by the employee." 12 Sections 29(2) and (3) are central to the determination of this appeal. They provide: "(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated. (3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so." 13 Subsection (2) was materially amended and subs (3) added by the Labour Relations Reform Act 2002 (WA) ("Amendment Act") which came into operation on 8 July 2002. 14 Prior to the amendments made to s 29 by the Amendment Act, s 29(2) provided that a referral "cannot be made more than 28 days after the day on which the employee's employment terminated". Section 29(2) in that form was inserted into the Act by the Industrial Relations Amendment Act 1993 (WA). 15 The scheme of the Act for the conferral of jurisdiction on the Commission has not materially altered since the introduction in 1993 of the time limit in s 29(2) of the Act. Section 23(1) provides that "Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter". 3762 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 16 Industrial matter is defined in s 7 to mean any matter affecting or relating to the work, privileges, rights or duties of employers or employees in any industry or of any employer or employee therein, including, inter alia, "… the dismissal of or refusal to employ any person or class of persons therein": s 7(c). The scope of par (c) is narrowed by the opening words of s 7 which have been interpreted to require that, at the time of the application, the relationship of employer or employee actually exist or is expected to come into existence: Coles Myer Ltd (t/as Coles Supermarkets) v Coppin & Ors (1993) 11 WAR 20. 17 Under s 29(1)(a), an employer with a sufficient interest in an industrial matter, an organisation in which persons to whom the industrial matter relates are eligible to be members or the Minister can refer an industrial matter to the Commission. Under s 29(1)(b) and (2), an employee's rights are, by comparison, very significantly restricted both in relation to subject matter and time. 18 The Commission has power to make orders on unfair dismissal claims pursuant to ss 23A and 44 (the compulsory conference power) of the Act. Finally, before and since the introduction in 1993 of the time limit in s 29(2), the Commission has had general power by s 27(1)(n) of the Act to extend any prescribed time. That section materially provides: "Except as otherwise provided in this Act, the Commission may, in relation to any matter before it - (n) extend any prescribed time or any time fixed by an order of the Commission". 19 Under the Interpretation Act 1984 (WA), "prescribed" means prescribed by or under the written law in which the word occurs. 20 In a series of decisions the Commission and Full Bench, relying on the plainly prohibitive language in the former s 29(2), held that compliance with the time limit was an essential condition of the right to refer to the Commission an unfair dismissal claim and failure to comply rendered proceedings a nullity: Satie v Swan Television and Radio Broadcasters Ltd (1999) 79 WAIG 955 at 955 - 956; Old Ferry Co Pty Ltd v Mario Gino Bertelli (1999) 79 WAIG 3547 at 3549 - 3550; E J Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 107 at 1017 - 1018; Westrail v Durham (1994) 74 WAIG 1882. 21 Thus, the prevailing view was that under the former s 29(2) referral within 28 days was an essential preliminary to the exercise of the Commission's power or authority and went to the jurisdiction of the Commission (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389). 22 There is also authority that the general provision giving the Commission the power to extend time did not apply to the time limit in the former s 29(2), either because the Act otherwise provided in s 29(2) or because the general power does not apply to extend the jurisdiction of the Commission but, rather, gives it power incidental to the exercise of its established jurisdiction: E J Richardson v Cecil Bros Pty Ltd (supra) at 1017 - 1018. 23 It appears this Court was never called on to rule on the proper construction of s 29(2) before it was amended. There is authority in this Court that s 29(1)(b) does not expand the Commission's jurisdiction: Coles Myer Ltd (supra). However, it does not follow from the reasoning or result in that case that the time limit in s 29(2) is procedural rather than substantive and jurisdictional. Section 23 is to be read subject to the Act. The language of the former s 29(2) was peremptory and prohibitive. Further, the legislature clearly intended to treat employees differently from other applicants. In my view, the conclusion that compliance with the time limit in the former s 29(2) was an essential condition of the right and the Commission did not have power to extend time was correct. It is consistent with the approach and analysis taken by the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. 24 It was in the context of the decisions to which I have referred that the legislature acted to ameliorate the position. In the second reading speech for the Amendment Act, the relevant Minister said: "The present 28-day time limit for lodging claims is considered too inflexible and has denied just outcomes in cases of genuine need in the past. Accordingly, the commission will have the ability to hear claims lodged out of time if it considers it would be unfair not to do so." 25 The first sentence is an acknowledgment of the decisions to the effect that the time limit was jurisdictional and could not be extended. The central question is whether in enacting s 29(2) and (3) in their current form the legislature intended to change the character of the time limit from one which forms part of a statutory right (and thus is substantive and, in context, jurisdictional) to one which is merely procedural and only bars the remedy. In construing the legislation, regard must be had to the consequences that flow from its characterisation. 26 The appellant contends that the Commission has jurisdiction to hear a referral by an employee of an unfair dismissal claim only if the referral is made within the prescribed time or at a later time if the referral is accepted by the Commission after making a finding that it would be unfair not to accept the referral. The consequences if the referral is not made within time or the Commission does not accept the referral under subs (3) are that the proceedings would be a nullity; the conditions (being, in effect, conditions precedent to the exercise of jurisdiction) cannot be waived, even if they are imposed for the benefit of the party said to have waived it; and the proceedings cannot be subsequently validated with retrospective effect, that is, on a nunc pro tunc basis: Commonwealth v Verwayen (1990) 170 CLR 394 at 422 - 428; Re Monger; Ex parte Cross [2004] WASCA 176 at [178]. 27 On the other hand, if the requirements in subs (2) and (3) are procedural, the proceedings would not be a nullity, the requirements could be waived and the proceedings validated subsequently on a nunc pro tunc basis: Emanuele v Australian Securities Commission (1997) 188 CLR 114; Re Monger; Ex parte Cross (supra) at [165]. 28 There are strong indications that compliance with subs (2) or (3) constitute an essential preliminary to the exercise of the Commission's jurisdiction. Firstly, if the legislature intended to alter the character of the time limit in subs (2) from substantive to procedural, it is to be expected that the general provision in s 27(n) to extend time would apply, in which event subs (3) would be unnecessary. Secondly, subs (3) gives the Commission an entitlement to "accept a referral", which language is indicative of an extension to the Commission's jurisdiction rather than the exercise of a power in relation to a matter already within jurisdiction. Thirdly, there is nothing in the second reading speech to the Amendment Act to suggest the legislature intended to alter the existing character of the time limit as a condition of the exercise of the right but merely to increase the flexibility of its application. 29 Although the language in subs (2) changes from prohibitive (a referral cannot be made) to positive (a referral is to be made within the time limit), I do not regard this as an unequivocal indicator of a contrary intention. The change in language in subs (2) is consistent with the addition of the alternative means of obtaining jurisdiction introduced in subs (3). The decision of 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3763 Hanssen Pty Ltd v CFMEU [2004] WAIRC 10828 relied on by the President does not relate to s 29(2) and (3) of the Act and is clearly distinguishable. 30 For these reasons I conclude that, on the proper construction of s 29(2) and (3) of the Act, the Commission has jurisdiction to hear an unfair dismissal claim under s 29(1)(b)(i) only if the referral is made not later than 28 days after the day on which the employee's employment is terminated or if the Commission accepts a referral under s 29(3) of the Act. 31 Under reg 21B of the Industrial Relations Commission Regulations 1985 (WA), a referral by an employee under s 29(1)(b)(i) that is outside the time prescribed in s 29(2) is required to have attached a statement from the applicant setting out the facts upon which the applicant relies to show why it would be unfair for the Commission not to accept the referral. The respondent in this case did not attach such a statement or otherwise move the Commission to accept the reference under s 29(3) of the Act. The remaining question is whether the referral was made within time. Whether Referral Made in Time 32 Commissioner Gregor found that the respondent resigned and did so in her letter of "7 November 2002". As far as I am able to ascertain, there is no relevant letter of 7 November 2002. The Commissioner must have intended to refer to the respondent's letter of 5 November 2002 referred to below. However, as noted earlier, the Commissioner did not rule on whether the referral was made within time or make a finding as to the relevant termination date. 33 Further, the Full Bench did not make an express finding on whether the referral was made within the time limit in s 29(2) of the Act. The appellant contends the Full Bench made an implied finding that the reference was out of time. It is necessary to refer to further factual background to put the reasons in their proper context. 34 The appellant had offered the respondent alternative positions, including that of database technician at Kundana on a day-shift basis. Although that position involved a directly comparable hourly wage rate, the package was worth about 12 per cent less than her previous position because of a reduction in working hours. The appellant provided to the respondent a letter of offer dated 29 October 2002 relating to the database position at Kundana. The offer was said to remain valid for a week and if a signed acceptance was not received within that period, it would lapse. After receipt of the letter, the respondent orally advised the appellant that she was not going to accept the offer. By letter dated 5 November 2002, the respondent wrote to the appellant in the following terms: "As per our phone discussion today, I am writing to give notice that I will not be returning to work as planned on the 7th November due to the pay difference for the proposed position of Data Base Tech at Kundana." 35 By a letter dated 5 November 2002, the appellant wrote to the respondent setting out the background and concluded with the following: "The option of redundancy was then discussed. As advised, a draft calculation of your entitlements under our Redundancy Policy is attached for your perusal. This has been made effective as of 7 November 2002, as advised in your letter to us of 5 November 2002. Could you please peruse the attachment and advise your acceptance or otherwise …". 36 The draft calculation of the respondent's entitlements referred to in the appellant's letter was before the Full Bench and relied on by the respondent in this appeal. That document shows the date of commencement of employment and a date of termination which appear to be for the purpose of calculating the redundancy figure. The date of termination is stated to be 7/11/2002. After nominating that she wanted her entitlement paid as cash, the respondent signed the calculation sheet which appears to be dated 21 November 2002. At the bottom of this calculation sheet the respondent recorded her position acceptance in the following terms: "I have not chosen to be made redundant from the position of U/G Geo-tech. I have only 'not' accepted the positions offered upon my return from maternity leave as I did not see them as being in any way comparable with my original position." 37 The Full Bench concluded that the appellant had acted in breach of its contractual obligation in offering the respondent a position which paid her less than she was earning previously. 38 The appellant contended that the Full Bench found that the respondent's employment terminated on 5 November 2002 and relies on the following statements in the President's reasons (at [114] and [116]): "… her advice in writing that she would not come to work and to that position was the rejection of the position determined in breach of the terms of Aurion's own contractual obligation to Ms Bilos. … There was no resignation. Ms Bilos was entitled to reject it. … In my opinion, there was a serious and deliberate breach of the contract of employment and then an attempt to persuade her to take a position offered contrary to and in breach of the contract. The failure to offer a position equal in pay was a repudiation of the contract, which repudiation she accepted." 39 There is nothing in these paragraphs to support an unequivocal finding of when the respondent's employment with the appellant terminated. 40 Further, the President said (at [121]): "She was forced to choose retrenchment or an offer made in breach of her own contract, which contained a 12% reduction in salary. In other words, she was being forced to accept Aurion's wrongful act or dismissal." 41 I infer the President was referring to the appellant's letter dated 5 November 2002 enclosing the redundancy calculation. There is no finding as to when the respondent received that letter or signed the redundancy form and accepted the redundancy. 42 The appellant placed considerable reliance on the President's reasons in respect of waiver set out earlier. I do not interpret the conclusion on waiver as predicated on an implied finding that the respondent's employment terminated before 7 November 2002. It goes no further than indicating that the appellant had waived any right it might have to argue that the referral was lodged out of time. 43 There is no express or implied finding below as to the relevant termination date. It is not suggested that this Court can or should make a finding on that issue. In the absence of a finding, this Court cannot uphold the appellant's second ground of appeal that the Full Bench should have found that the Commission did not have jurisdiction because the referral was made out of time. 3764 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. Waiver and Natural Justice 44 The appellant contended both at first instance and in the appeal to the Full Bench that the referral to the Commission was made out of time and consequently the Commission lacked jurisdiction. At no material time was the question of waiver raised by the respondent before the Commission or the Full Bench. Further, the Full Bench did not, before deciding the matter, notify the parties of its intention to rely on waiver and afford the parties the opportunity to be heard. That failure constitutes a breach by the Full Bench of the principles of natural justice which are reflected in s 26(3) of the Act which provides: "Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information." 45 Thus, the Full Bench erred in failing to give the appellant the opportunity to be heard on waiver. Further, for the reasons already given, the Full Bench also erred in concluding that the time limit in s 29(2) was capable of being waived. Accordingly, I would uphold the first ground of appeal. Disposition of the Appeal 46 The respondent contends that even if a ground of appeal is made out, this Court should confirm the decision of the Full Bench because no injustice has been suffered by the appellant. Section 90(3a) materially provides: "If any ground of the appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant … the Court shall confirm the decision the subject of appeal unless it considers that there is good reason not to do so." 47 There is merit in the respondent's contention that no injustice has been suffered by the appellant. Even if the referral was out of time (by two days at most), it is open to the Commission to accept a fresh referral by the appellant under s 29(3). It is difficult to see on what grounds the Commission would decline to accept a fresh referral to the Commission. The appellant was unable to identify any grounds which would prevent the Commission making a finding that it would be unfair not to accept the referral. If the Commission were to accept the reference, it is to be expected that, subject to giving the parties the opportunity to be heard, the Commission could by appropriate orders rely on the process, evidence and reasons in the proceedings under appeal. 48 However, there is a good reason not to confirm the decision of the Full Bench. In the absence of a finding that the referral was made within time, the question of jurisdiction remains alive. Unless confirmation by this Court of the Full Bench decision under s 90(3a) cures any jurisdictional deficiency, the jurisdictional question could arise in a collateral way in future steps in, or connected with, the proceedings. I doubt the legislature intended this Court to have the power to confirm a decision made in proceedings which were beyond the jurisdiction of the Commission. However, as the matter was not the subject of submissions, it is inappropriate to determine the question. In any event, absence of proven jurisdiction in the circumstances of this case is a good reason not to confirm the Full Bench's decision. 49 Accordingly, I would uphold the appeal, set aside the orders made by the Full Bench and remit the matter to the Full Bench for further hearing and determination in accordance with these reasons. 50 EM HEENAN J: The jurisdiction of the Industrial Commission to deal with a claim by a former employee for relief under the Act on the grounds of alleged harsh, oppressive or unfair dismissal is found in its general jurisdiction conferred by s 23(1) of the Industrial Relations Act 1979 which states that the Commission: "has cognizance of and authority to enquire into and deal with any industrial matter". An "industrial matter" is defined by s 7 of the Act and this definition includes, by subpar (c): "any matter affecting or relating or pertaining to ... the dismissal of ... any person or class of persons [in any industry]". 51 By s 23(3)(h) that jurisdiction is expressly recognised but it is directed that in the exercise of that jurisdiction in relation to a claim of harsh, oppressive or unfair dismissal the Commission shall not make any order except an order authorised by s 23A, or in the case of an application under s 44, except an order authorised by that latter section or by s 23A. This jurisdiction is assumed and the particular powers made available in the exercise of that jurisdiction are set out in s 23A of the Act. 52 It follows, therefore, that a claim for relief in respect of an industrial matter concerning a claim of harsh, oppressive or unfair dismissal may come before the Commission as a result of a Commissioner summoning a person to attend a compulsory conference (s 44); or by referral of such a matter to the Commissioner by an employer with a sufficient interest, s 29(1)(a)(i), or by an organisation referred to in s 29(1)(a)(ii), or by the Minister under s 29(1), or, by the individual employee who alleges that he or she has been harshly, oppressively or unfairly dismissed from his or her employment (s 29(1)(b)). In all these instances the Commission has jurisdiction by virtue of the fact that the claim relates to an industrial matter under s 23(1). The extent of the relief which may be granted in respect of such an industrial matter is less extensive than the relief that may be granted in the exercise of other aspects of the Commission's jurisdiction - s 23(3), because it is confined in the manner prescribed by s 23(3)(h) for those applications made under s 44 but, in other cases dealing with harsh, oppressive or unfair dismissal the Commission may not make any order except one authorised by s 23A. 53 It follows, therefore, that the extent of relief which may be granted by the Commission in relation to an "industrial matter" concerning a claim for harsh, oppressive or unfair dismissal depends upon whether or not the claim comes before the Commission by virtue of a compulsory conference convened under s 44 or by a referral by any of the persons entitled to make a referral under s 29(1). 54 Under s 29(1), particular provisions apply to the case of a referral by one of the four categories of persons or entities entitled to make a referral, namely an employee because, in the case of such a referral, time limits are imposed as follows: "29(2) Subject to subsection (3) a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee's employment is terminated; (3) the Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so." 55 It has long been recognised that s 29 does not enlarge or diminish the general jurisdiction of the Commission to deal with any industrial matter as conferred by s 23(1) but is an express recognition that a claim for relief by an employee for an alleged harsh, oppressive or unfair dismissal is within the general jurisdiction of the Commission - Coles Myer Ltd (t/as Coles Supermarkets) v Coppin & Ors (1993) 11 WAR 20 and the IAC in Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161. 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3765 56 A question which arises in this case is whether or not an application referred by a former employee under s 29 seeking relief for alleged harsh, oppressive or unfair dismissal brought later than the 28 day time limit prescribed by s 29(2) of the Act is thereby beyond the jurisdiction of the Commission. Were such an industrial matter to be referred by an employer, by an organisation of employers or of employees, or by the Minister, such a time limit would not apply and the industrial matter would plainly be within the jurisdiction of the Commission. 57 Consequently, one way of formulating the question is to ask whether or not the jurisdiction of the Commission to deal with an industrial matter involving a claim of harsh, oppressive or unfair dismissal is more circumscribed if the claim is brought by the complainant employee than if it is referred to the Commission by any of the other three categories of persons or entities eligible to make a referral under s 29(1) or if it comes before the Commission as a result of a compulsory conference convened under s 44. As a matter of principle it would seem to be difficult to discern a reason why there should be a difference in the jurisdiction of the Commission depending upon the identity of the person referring the matter or whether the matter comes for consideration as a result of the initiative of the Commission itself under s 44. 58 This incongruity becomes apparent if one takes as the starting point the general jurisdiction of the Commission established under s 23(1) of the Act. If one commences the examination of the extent of jurisdiction by focusing on s 29 the perspective of the Commission as a whole is diminished and there can be a tendency to consider that s 29 is itself both the source and measure of the jurisdiction which the Commission has in relation to an employee's claim for relief for harsh, oppressive or unfair dismissal. Starting at this latter point leads more readily to a characterisation of the section of s 29 (and in particular subs 29(2)) as meaning that the time limit for the institution of a referral becomes an "integer" or element of the right created by the section so that right created can never be exercised unless in compliance with that condition - per Isaacs J in R v McNeil (1922) 31 CLR 76 at 101 and David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 per Gummow J at 277. However, the point of commencing the analysis of the significance of the time limit prescribed by s 29(2) at s 23(1) is to reveal that the jurisdiction of the Industrial Commission to deal with such an industrial matter is established elsewhere than in s 29(1) and, further, that the time limit is applicable only in the exercise of this general jurisdiction, when the referral is made to the Commission by an employee as opposed to referral by other eligible parties or as a result of an initiative by the Commission itself under s 44. 59 It is in this situation that this Court comes to examine whether or not compliance with the time limit prescribed by s 29(2) goes to the jurisdiction of the Commission to deal with an industrial matter involving a claim for harsh, oppressive or unfair dismissal brought by an employee, especially in circumstances where Parliament has recently amended s 29 because of an interpretation given to the former provision by decisions of the Commission which treated the then s 29(2) as meaning that referral within the 28 days was an essential preliminary to the exercise of the Commission's power or authority and one going to the jurisdiction of the Commission. When introducing the amendment to the Parliament the Honourable Minister said in his Second Reading Speech: "The present 28 day time limit for lodging claims is considered too inflexible and has denied just outcomes in cases of genuine need in the past. Accordingly the Commission will have ability to hear claims lodged out of time if it considers it would be unfair not to do so." Consequently, this Court is required to consider, for the first time, whether the Act in its amended terms, on its correct interpretation, imposes the 28 day time limit as a condition which goes to the jurisdiction of the exercise of the power of the Commission. 60 I am satisfied that this time limit does not go to the jurisdiction of the Commission. There are several features of the legislation which, in my view, indicate that this is the conclusion which should be reached as a matter of interpretation. 61 First, s 29(1) does not confer jurisdiction on the Commission to grant relief in respect of an industrial matter involving a claim for harsh, oppressive or unfair dismissal. It does no more than identify the parties who may refer such an industrial matter to the Commission and, in respect of one of the four categories of parties, establishes a time limit for the making of such a referral subject to extension at the discretion of the Commission - compare the analysis of s 459P of the Corporations Law by Dawson J in Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 125. 62 Second, the express power of the Commission to accept a referral by an employee out of time, unless the Commission considers that it would be unfair not to do so, granted by s 29(3), means that the Commission has power to deal with such a late application at its discretion with reference to the criterion of unfairness, so that if the appellant's argument were correct, the jurisdiction of the Commission could expand or contract according to the discretionary exercise of this power - a situation which, in my view is inconsistent with prescribed and objective jurisdictional limits specified elsewhere by the Act. Third, the incongruity between a provision relating to time which applies only to one of the four categories of persons or bodies who may refer an industrial matter involving an allegation of harsh, oppressive or unfair dismissal to the Commission, when the Commission undoubtedly has jurisdiction to deal with such an industrial matter brought before it by any of the other permissible procedures, strongly suggests that the Commission has jurisdiction over such an industrial matter however and whenever it comes before it but that there is a time limit which must be observed, as a matter of procedure, when such a matter is referred by the aggrieved employee, subject to the discretionary power to accept such a referral out of time. 63 It is, of course, undoubted that the existence of a so-called jurisdictional fact is essential for the ability of a court or tribunal of limited jurisdiction to exercise its powers but, for very good reason, there is a disposition by courts not to treat matters or facts as being jurisdictional unless the intention of Parliament to ascribe that characteristic to them is clearly expressed - see Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 per Dixon J at 391 which dealt expressly with the significance of a statutory time limit for the institution of proceedings. 64 Furthermore, the ability of the Commission to decline to accept late referrals under s 29(3) in the exercise of its discretion means that Parliament has granted to the Commission the ability and the responsibility, acting in the public interest, to ensure that justice is done in any particular case by accepting a late application in its discretion unless it would be unfair not to do so, while still controlling its own procedures and preventing a flood of late claims through judicious, but discriminating, enforcement of the time limit. The ability of the Commission to control its own affairs in this manner so as to avoid injustice and inconvenience is also strongly indicative of a procedural or non-jurisdictional, characterisation of the time limit and that is the presumption which, in ordinary circumstances, will generally apply: Yong Jung Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 (FCA) and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 per Brennan CJ, Dawson, Toohey and Gummow JJ at 635. 65 As I consider that the Commission had the jurisdiction to hear and determine this referral by the respondent, notwithstanding that it may have been a late referral I consider that the appellant's ground of appeal (2(a)) challenging the jurisdiction of the Commission under s 90(1)(a) of the Act must be dismissed. 3766 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 66 There was no express finding by the learned Commissioner who originally dealt with this application that the referral was late. Gregor C dealt with the matter by dismissing the application on the ground that the appellant had resigned from her employment so that there had never been a dismissal. Had this not occurred it would have been necessary for the learned Commissioner to deal with the question of when the alleged dismissal took place and, as McLure J has pointed out, Gregor C appears to have been disposed to treat the termination of employment as occurring as a resignation by the despatch, or perhaps the receipt, of the appellant's letter of 5 November 2002. However, there was other evidence indicating that the termination of employment was treated by both parties as taking effect upon 7 November 2002. If the latter date was the date of termination then the referral to the Commission was within the 28 day time limit prescribed by s 29(2) and no question of the exercise of the discretion to accept a late referral by the Commission under s 29(3) arose. 67 It is not entirely clear from the reasons for decision of the Full Bench when the harsh, oppressive or unfair dismissal which it found to have occurred actually took place. In his reasons for decision, the learned President his Honour Judge Sharkey, concluded that the despatch or receipt of the letter of 5 November 2002 did not constitute a resignation but rather was a statement by the respondent that she would not accept an offer of alternative employment which the appellant, in breach of contract, was requiring her to accept. This led to a termination of the respondent's right to work for the appellant, which she accepted, thus effecting, in the determination of the Full Bench, a harsh, oppressive or unfair dismissal. All the documentary evidence was to the effect that the termination of employment took effect on 7 November 2002 but there was no express finding by the Full Bench to that effect. 68 Despite the absence of any finding in the Commission as to the date upon which the respondent's employment was terminated, the appellant's list of the respondent's financial entitlements expressly shows the date of termination as 7 November 2002. There being no other evidence before the Commission about the date of termination, I consider that there is a very strong implication that the Full Bench treated the termination as having taken effect on that date. As already stated, in that case, the referral under s 29(1) was within the 28 day time limit. 69 However, the learned President went on to address the appellant's submission that there was a late referral under s 29(1) at [123] of his Honour's reasons and observed that the appellant had waived any right to oppose the matter being heard out of time. Objection is taken on this appeal that there was no such waiver and that, in any event, there has been a denial of natural justice because none of the parties, and in particular, the appellant was heard in the Full Bench on the issue of waiver, as should have occurred for the appellant to have received natural justice and for the Full Bench to have complied with the obligations cast upon it by s 26(3) of the Act. 70 There is no doubt that if the issue of waiver was material to the determination of the Full Bench notice of that issue should have been given to parties and each of them allowed an opportunity of being heard in relation to that particular issue. This was not done and there was, therefore, a breach of the requirements of natural justice which could lead to this ground of appeal being upheld. However, having regard to the implicit finding by the Full Bench that the termination of employment occurred on 7 November 2002 and to my conclusion that non-compliance with the 28 day time limit prescribed by s 29(2) does not go to the jurisdiction of the Commission it becomes necessary to consider whether or not this Court should confirm the decision of the Full Bench which is the subject of this appeal if it is satisfied that no injustice has been suffered by the appellant - s 90(3a). 71 It is not for this Court to make any findings of fact. Consequently, if there is any doubt that the termination of the respondent's employment by the appellant took place on 7 November 2002 it will be necessary for the Commission, and not this Court, to make a finding as to when that termination did occur or when it probably occurred. If the finding is that the termination occurred on or after 7 February 2002 then no question about a late referral by the respondent of this industrial matter to the Commission under s 29(1)(b) will arise, nor will there be any need for the Commission to consider whether or not it should accept a referral out of time pursuant to its powers under s 29(3). On the other hand, if the Commission were to find that the termination of employment occurred or probably occurred before 7 November 2002 and so the referral to the Commission by the respondent was late, it will be necessary for the Commission to consider whether or not it should accept the late referral in the exercise of its powers under s 29(3). Because, in my view, compliance with that time limit does not go to jurisdiction there is no reason why such an application to accept a referral out of time could not be dealt with if it were to be made by the respondent in the present proceedings and, if allowed, have retrospective effect - Emanuele v Australian Securities Commission (supra). Furthermore, this would seem to be the preferable course consistently with the imperative directed by s 26(1)(a). 72 Whichever way one looks at the position, however, if the original referral by the respondent was late there must be some possibility that, in the exercise of its discretion, the Commission might refuse to accept it. A decision to accept or reject a late application could only be made by the Commission. While the indications are very strong that, in the present case, the circumstances favour the acceptance of a late referral (if there was one) I do not consider that this Court can be satisfied that no injustice has been suffered by the appellant, within the meaning of s 90(3a) without, in effect, determining a question of whether or not the putative late referral should be accepted. 73 In these circumstances, I consider that because there has been no clear finding by the Full Bench as to when this termination of employment occurred it is necessary to allow the appeal, to set aside the decision of the Full Bench but then to remit the matter to the Full Bench under s 90(3) in order for the Full Bench to determine when the termination of employment took effect and, if necessary, either itself, or by remission of the case to the Commission under s 49(5)(c) to determine whether any late referral by the respondent under s 29(1), if that in fact occurred, should nevertheless be accepted pursuant to the powers of the Commission under s 29(3). 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3767 2004 WAIRC 13380 APPEAL AGAINST THE DECISION OF THE FULL BENCH IN FBA 25 OF 2004 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AURION GOLD APPELLANT -v- IVY BILOS RESPONDENT CORAM STEYTLER J (Presiding Judge) McLURE J HEENAN J DATE OF ORDER TUESDAY, 23 NOVEMBER 2004 FILE NO/S IAC 5 OF 2004 CITATION NO. 2004 WAIRC 13380 Result Appeal allowed. Representation Appellant Mr A J Power, of Counsel Respondent Ms C P Crawford, of Counsel Order HAVING HEARD Mr A J Power (of Counsel) for the Appellant and Ms C P Crawford (of Counsel) on behalf of the Respondent, THE COURT HEREBY ORDERS THAT : The Appeal is allowed. The orders made by the Full Bench of the WAIRC are set aside. Matter remitted to the Full Bench of the WAIRC for further hearing and determination in accordance with Reasons for Judgement [2004] WASCA 270. (Sgd.) J. SPURLING, [L.S.] CLERK OF COURT. FULL BENCH—Appeals against decision of Commission— 2004 WAIRC 13351 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ACE REMOVALISTS PTY. LTD. APPELLANT -and- KEITH MCROBERT RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY SENIOR COMMISSIONER A R BEECH COMMISSIONER S J KENNER DELIVERED FRIDAY, 19 NOVEMBER 2004 FILE NO/S FBA 34 OF 2003 CITATION NO. 2004 WAIRC 13351 Decision Appeal dismissed Appearances Appellant No appearances Respondent No appearances 3768 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. Order This matter having come on for hearing before the Full Bench on the 19th day of November 2004; AND WHEREAS there was no appearance by or on behalf of either party; AND WHEREAS the Full Bench was satisfied and found that, pursuant to s.27(1)(d) of the Industrial Relations Act 1979 (as amended), both parties had been duly served with notice of the proceedings and that the Full Bench could and should proceed to determine the matter in the absence of the parties; AND WHEREAS since no step had been taken in the proceedings by or on behalf of the parties since the 24th day of October 2003 to prosecute the appeal; AND WHEREAS no explanation was advanced why that was so, and there was no evidence that any further step would be taken, the Full Bench found that the appeal herein should be dismissed for want of prosecution; AND the Full Bench having determined that the appeal should be dismissed for want of prosecution it is this day, the 19th day of November 2004, ordered that appeal No. FBA 34 of 2003 be and is hereby dismissed. By the Full Bench (Sgd.) P J SHARKEY, [L.S.] President. 2004 WAIRC 13269 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BANDABERRY PTY LTD TRADING AS MANDURAH HOLDEN APPELLANT -and- BARRY KERTON RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY SENIOR COMMISSIONER A R BEECH COMMISSIONER J F GREGOR DELIVERED WEDNESDAY, 10 NOVEMBER 2004 FILE NO/S FBA 25 OF 2004 CITATION NO. 2004 WAIRC 13269 Decision Appeal discontinued by consent. Appearances Appellant Mr P Arns (of Counsel), by leave Respondent Mr K Trainer, as agent PARTIES BARRY THOMAS KERTON APPELLANT -and- BANDABERRY PTY LTD RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY SENIOR COMMISSIONER A R BEECH COMMISSIONER J F GREGOR DELIVERED WEDNESDAY, 10 NOVEMBER 2004 FILE NO/S FBA 26 OF 2004 CITATION NO. 2004 WAIRC 13269 Decision Appeal discontinued by consent. Appearances Appellant Mr K Trainer, as agent Respondent Mr P Arns (of Counsel), by leave 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3769 Order This matter having come on for hearing before the Full Bench on the 10th day of November 2004, and having heard Mr P Arns (of Counsel), by leave, on behalf of Bandaberry Pty Ltd, the above-named appellant/respondent, and Mr K Trainer, as agent, on behalf of Mr Barry Kerton, the above-named respondent/appellant, and both parties having made application to discontinue their respective appeals herein, by consent, and the parties having waived the rights conferred on them by s35 of the Industrial Relations Act 1979 (as amended), it is this day, the 10th day of November 2004, ordered and declared:- (1) THAT the said appeals be heard together. (2) THAT there be leave granted and leave is hereby granted for appeal No FBA 25 of 2004 to be discontinued. (3) THAT there be leave granted and leave is hereby granted for appeal No FBA 26 of 2004 to be discontinued. (4) THAT the Full Bench refrain from hearing the said appeals further. By the Full Bench (Sgd.) P J SHARKEY, [L.S.] President. 2004 WAIRC 13308 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BHP BILLITON IRON ORE PTY LTD APPELLANT -and- THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH DELIVERED MONDAY, 15 NOVEMBER 2004 FILE NO. FBA 8 OF 2004 CITATION NO. 2004 WAIRC 13308 Catchwords Industrial Law (WA) – Appeal against decision of a single Commissioner – Matter not settled at conference and referred for hearing and determination – Unfair dismissal – Breach of rules – Failure to comply with lawful and reasonable directions of employer – Inconsistency of treatment of employees in disciplinary matters – Unfairness of dismissal - Appeal dismissed - Mines Safety and Inspection Regulations 1995 - Mines Safety and Inspection Act 1994 – Industrial Relations Act 1979 (as amended), s44 Decision Appeal dismissed Appearances Appellant Mr A Power (of Counsel), by leave, and Mr R Curry (of Counsel), by leave Respondent Mr D H Schapper (of Counsel), by leave Reasons for Decision THE PRESIDENT AND CHIEF COMMISSIONER W S COLEMAN: INTRODUCTION 1 This is an appeal against the decision made by the Commissioner at first instance on 3 February 2004 in application No CR 41 of 2003, on the following grounds (see pages 2-3 of the appeal book (hereinafter referred to as “AB”)):- “The learned Commissioner’s finding that the applicant’s member, John Cupak, was unfairly dismissed in the circumstances Mr Cupak suffered on the night that he committed his breaches of the regulations, in that it was not a fair go all round, given the whole of the way that the appellant (the Company) approaches driver discipline in its railway system, was in error and manifestly wrong, alternatively not reasonably open because: 1. The nature of Mr Cupak’s breaches of the Company’s Railroad Rules in the circumstances of the incident justified the Company’s decision to dismiss Mr Cupak. Accordingly, Mr Cupak was afforded a fair go all round, notwithstanding the findings of a breach of natural justice and a denial of procedural fairness (which are also appealed below). In particular, Mr Cupak: (a) overrode the ATP system without the required authorisation and properly advising the Train Controller of his actions; and (b) passed the coloured light signal which was at stop and visible at some considerable distance, without: (i) advising or properly advising the Train Controller of his actions or his movements or his intended actions or movements before it was too late; (ii) knowing that it was safe to pass the signal; (iii) attempting to comply with the signal; or 3770 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. (iv) obtaining the required authorisation to pass the signal at stop. Accordingly and in the alternative, the Commissioner erred in finding, in relation to the circumstances Mr Cupak suffered on the night, that the decisions made by Mr Cupak were made in good faith and in what he thought were the best interests of his personal safety and the safety of the Company’s property. 2 Further and in the alternative, there was no breach of natural justice and no denial of procedural fairness in that the same standards (in respect of discipline for breach of the Company’s Railroad Rules) were applied by the Company in relation to the incident involving Mr Cupak when compared to the incidents involving Dominic Yap, Dennis Robinson and Greg Brandis. In particular: (a) there were qualitative differences between the nature and circumstances of the breaches relating to the Automatic Train Protection system (ATP system) committed by Mr Cupak in territory governed by the Centralised Traffic Control system on the one hand and by Mr Yap and Mr Brandis in territory governed by the Train Order system on the other hand, which justify the differing disciplinary outcomes; and (b) there were qualitative differences between the nature and circumstances of the breaches relating to passing a coloured light signal at stop committed by Mr Cupak and by Mr Robinson, which justify the differing disciplinary outcomes; and (c) further and in the alternative, Mr Cupak committed breaches relating to both the ATP system and passing a coloured light signal at stop, whereas Mr Yap, Mr Brandis and Mr Robinson committed breaches in relation to either the ATP system or passing a coloured light signal at stop, but not both. Relief sought: The appellant seeks: 1 an order quashing the order appealed from, and in lieu thereof, an order that the application be dismissed; and 2 incidental and ancillary orders in relation to the amounts paid by the Company pursuant to the order appealed from.” DECISION APPEALED AGAINST 2 The appeal seems to be against the whole of the decision. The decision appealed against reads, formal parts omitted, as follows (see pages 27-28 (AB)):- “1. THAT within 14 days of the date of this order, the Respondent shall reinstate the Applicant’s member, John Cupak, to his previous position as a Level 5 locomotive driver as defined by the Iron Ore Production and Processing (BHP Billiton Iron Ore Pty Ltd) Award No. A2 of 2002 (the Award). 2. THAT John Cupak’s service with the Respondent shall be deemed not to have been broken by reason of the termination of his employment. 3. THAT within 14 days after John Cupak supplies the Respondent with satisfactory evidence of all remuneration (gross and net, including, but not limited to superannuation contributions) earned from the date of his dismissal to the date of his reinstatement (total actual remuneration), the Respondent shall pay to John Cupak an amount being the difference between: (a) the total actual remuneration plus the amount of $11,730.40 received by John Cupak as payment in lieu of notice on termination of his employment; and (b) the amount John Cupak would have earned from the date of his dismissal to the date of his reinstatement calculated upon: (i) the annual aggregate wage for a Level 5 locomotive driver, adjusted to take into account variation of the Award; and (ii) applicable superannuation contributions. 4. THAT upon the termination of his employment with the Respondent, John Cupak was paid amounts in lieu of a termination airfare and his accrued but untaken annual and long service leave. If John Cupak wishes to reinstate those entitlements he can do so by repaying the value of them to the Respondent. 5. THAT prior to return to locomotive driving duties, John Cupak to: (a) undergo a medical examination and obtain a medical clearance; (b) complete re-induction to the Respondent’s Nelson Point site and railway operations; and (c) successfully complete re-training and assessment in relation to Level 5 locomotive driving duties and the Pilbara District Railroad Operating Rules and Safe Work Procedures 2004. 6. THAT there be liberty to both parties to apply.” BACKGROUND 3 On 28 April 2003, the Commissioner conducted a conference pursuant to s44 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) because of a dispute between The Construction, Forestry, Mining and Energy Union of Workers (hereinafter referred to as “the CFMEU”) and BHP Billiton Iron Ore Pty Ltd (hereinafter referred to as “BHP”) because of the dismissal by BHP of Mr John Cupak, a locomotive driver employed by BHP, and a member of the CFMEU, for alleged failure to comply with a number of railway rules, regulations and procedures. 4 The matter was unable to be settled in conference and the Commissioner prepared a memorandum of matters for hearing and determination under s44 of the Act which, formal parts omitted, reads as follows (see page 9 (AB)):- “1. The respondent alleges that on 9 January 2003, the applicant’s member, Mr J. Cupak, failed to comply with a number of railroad rules, regulations and procedures, which failures arose out of a series of Mr Cupak’s actions, including: 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3771 (a) the driving of his train through a “red” signal on the railway line without the mandatory written authority which is required in CTC territory; and (b) the manual over-riding of the train’s Automatic Train Protection system by Mr Cupak without the requisite authority. 2. Subsequent to the allegation, the applicant alleges that the respondent unfairly terminated the employment of Mr J Cupak, on 14 February 2003, without regard to or proper regard to all of the circumstances of the incident and of Mr Cupak’s person (sic) circumstances raised by him during the investigation process and history of his employment with the Company. 3. The applicant seeks an order that Mr J Cupak be reinstated without loss. 4. The respondent opposes the relief sought.” 5 The application at first instance was listed and heard concurrently with application No CR 99 of 2003, which related to the dismissal by BHP of Mr Glenn Hellmrich. The hearing at first instance of Mr Cupak’s application was interposed with the hearing of Mr Hellmrich’s application, but they were, for the most part, heard, and were certainly determined separately. 6 The decision in relation to a similar application on behalf of Mr Hellmrich, who was also a member of the CFMEU, was the subject of appeal in FBA 7 of 2004, which the Full Bench heard separately. 7 The Commissioner at first instance set out the evidence as one narrative relating to both matters. BHP Rail Operations 8 In this case, and at all material times, for many years, BHP has mined iron ore at Mt Whaleback near the town of Mt Newman, and also at Jimblebar and Yandi. These mines are all serviced by a track which begins in Port Hedland and ends at Newman, 427 kilometres from its point of origin. The track distances mentioned begin at Port Hedland for the Newman track and at Finucane Island for the Yarrie track. 9 BHP also mines ore at Yarrie and Nimingarra, and these mines are serviced by the Yarrie line. There are a number of junctions, of course, in the system. The closest to Newman is Jimblebar Junction the south end of which is located at the 401 kilometre mark. Yandi Junction is located at the 275 to 286 kilometre mark. Goldsworthy Junction between the Newman and the Yarrie line is at the 13-14 kilometre mark on the Newman line. The line from Newman then goes to the Hedland yard from which the ships are loaded. The Yarrie line ends at the Yarrie loading balloon, 203 kilometres from Finucane Island. On the track journey it passes through Rubin Junction where the Nimingarra track spur joins the main Yarrie line. The Yarrie line crosses the Newman Line at the Goldsworthy Junction and then proceeds to the Boodarie rail depot then to Finucane Island. 10 The trains are loaded in the Newman Yard and then depart on a downgrade from Newman. They then proceed from Newman at 421 kilometres past Orebody 25 at 409 kilometres to Jimblebar Junction at 401 kilometres. The Jimblebar Junction also enables access from the spur to the Jimblebar Mine. The Junction consists of two parallel roads, the entry road from Port Hedland through the JBN3 Signal at 393 kilometres to 1A Road. There is a switch (51 switch) to 2A Road. There are stop boards on 1A Road at 397.267 kilometres and on 2A Road at 397.43 kilometres. There is 3700 metres of track in both 1A and 2A Roads. The roads are protected by stop boards which are red and which indicate in writing that no train can pass them without authority. They are easily legible on the evidence. 2A Road becomes 2B Road from a stop board located close to Switch 53 and 1A Road becomes 1B Road on the other side of the notice board near Switch 54B. 2B Road is 3495 metres long and the adjoining road is 3400 kilometres. The spur from Jimblebar connects via Switch 56 and a train entering from Jimblebar Mine can be diverted through that switch to 2B Road. A train from Newman can enter 2B Road through Switch 57. 11 The climb into Shaw siding sometimes requires locomotives to be attached to the back of trains to help them up the hill, and these are known as “bankers”. If a train at anytime needs to stop on a grade for any reason the locomotive driver is required to contact CTC who will advise the driver from a schedule in the General Appendix maintained in Control, how many handbrakes on individual ore cars he needs to apply. 12 Handbrake application is necessary to secure trains against roll away. If handbrake application is required, the driver has to walk the length of the train and physically apply them on each car. The trains can be up to 300 cars long and this could mean a six kilometre return walk. Often the driver is given assistance with this task by people sent out to do so. 13 The train then descends through various phases through the Chichester Range to Redmont, and others, across the Goldsworthy Junction and down into Port Hedland. The Yarrie line commences at Finucane Island and then proceeds to the Goldsworthy Junction. 14 At the time of both of these incidents, the “BHP Iron Ore – Pilbara District Railroad Rules and Regulations” (3rd Edition) (“the Rules”) (see volume 2, tab 22, of the respondent’s book of documents (hereinafter called “RBD”)) were in force. They have since been replaced. The General Appendix to BHP Iron Ore - Pilbara District Railroad Rules and Regulations provides information relating to the definitions and functions of equipment. 15 We should observe that the Rules, including the General Appendix to the Rules, exist by virtue of the Mines Safety and Inspection Regulations 1995, which themselves are made under the Mines Safety and Inspection Act 1994. The Rules prescribe standard methods of safe working on the Pilbara railways of BHP (see generally the discussion of these matters by the Full Bench in CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 1033 (FB) at paragraph 18). The drivers are required to comply with and be conversant with the Rules. The train controllers in Port Hedland who are responsible for and direct the movement of all rail traffic on the railway lines are required to be conversant with and comply with the Rules. The Automatic Train Protection System 16 This matter seems to have arisen out of the automatic train protection system. That is called “the ATP”. It is defined in rule 1 of the Rules as “A system provided for the supervision of train speed and the driver’s reaction to the signalling system”. 17 As it says in the ATP operator’s handbook (see volume 1, tab 16, page 136 (RBD)):- “Automatic Train Protection (ATP) is a continuous fail safe supervisory system that operates in real time. It gathers data from track mounted transponders at specific locations. It also correlates continuous information in the form of electronic pulses through the rails. It utilises driver supplied and imputed train data to help the ATP system to calculate the required safety stopping distances at given locations. The ATP system is designed to ensure trains work within identified safety parameters. 3772 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. The system enforces predetermined maximum speeds and signal authority. This means trains are required to operate below these speeds or have a penalty imposed. (That is the brakes come on). The system also protects against signals being accidentally passed at “Stop.” 18 The system protects against exceeding authority by applying brakes and cutting power. It protects against a number of things such as passing a signal at “Stop” and “Excessive Speed” (see volume 1, tab 16, page 137 (RBD)). 19 The operator’s handbook also says that it should be left on at all times (see volume 1, tab 16, page 162 (RBD)). 20 The ATP is a fail safe track side system which works in conjunction with equipment installed in the locomotive which is so arranged that its operation will automatically result in the application of the air brakes to stop or control the speed of the train in designated situations if the driver does not respond. For example, the ATP ensures compliance with signals and other matters, which are loaded onto an onboard computer. It does this by applying the train air brake system. A screen in the locomotive cabin provides the driver with information on the train’s current speed and a target speed to be achieved in the time allowed by the ATP before there is a penalty brake application ((ie) a brake application which brings a train to a standstill). This is called a count down and the screen displays a message which tracks the count down to zero. The ATP responds to things and events as the train goes along the track ((eg) changes in signals, objects on the track, etc). The penalties are applied in two sets of circumstances. The first set of circumstances is if there is speed over the prescribed limit. Where the train is not travelling within the speed limits for that part of the line, a count down will begin and if the speed limit is not complied with within the count down period a brake application will be automatically made at the full service application rate. The second set of circumstances is that if a signal is being accidentally passed when the signal is at stop, there is an emergency and automatic application of the brakes which brings the train to a stop. The witnesses described the system as a fail safe system for the driver. If there is something on the track, too, the ATP operates to impose a penalty bringing the train to a halt (as the ATP Operators Handbook says (see volume 1, tab 16, page 136 (RBD)). It is clearly the case that once the ATP is overridden or for some reason ceases to operate then a significant instrument of protection is lost. 21 If the signal to the ATP computer is lost due to a broken track or lightning strike it will immediately apply an emergency penalty and bring the train to a standstill. In those circumstances the computer decides that an emergency brake application is necessary and makes that application at the emergency rate causing the brake pipe pressure to fall to 0 kPa. 22 Also displayed to the driver in the cabin of the locomotive is an end of train monitoring (EOT) device which advises the brake pipe pressure on the last car of the train to the lead locomotive. When that registers a stable 0 kPa the driver knows that the train has not separated. 23 Once an emergency penalty is applied, a driver has to clear it, that is he allows the train to stop, advises the train controller that it has stopped, advises the controller of the reading from the ATP screen, and why the driver believes that the penalty was applied. If the train is stopped on a gradient, handbrakes are to be applied in accordance with the table in the General Appendix to the Rules which is at hand for the traffic controller. 24 There was evidence before the Commissioner from Mr Geoffrey Charles Jolly, BHP’s Supervisor – Rail Transport, that if the handbrakes are applied in accordance with the table in the General Appendix, a train should not move when the air brakes are released to recharge the air brake system. 25 Of course, a driver can override an ATP by engaging the override switch and that will cause the system to override the safety parameter which triggered it. However, that switch will only work if it is used before the penalty is applied by the ATP. 26 It was said that the rules concerning override provide that the train driver must first contact the Centralised Traffic Control (“CTC”) and ask for permission before he is permitted to override the ATP. Having received that verbal authority to override and repeat the authority back, he can apply the override switch. If there are unusual circumstances a driver may apply the override switch without prior authority, but he must advise the train controller as soon as possible. The actual direction to drivers (see volume 1, tab 2, page 15 (RBD)) dated 7 May 1998 says this:- “The driver has the authority to override ATP if he considers his train could react in an unusual manner with the potential to cause unsafe train handling characteristics. If ATP needs to be overridden, utilise temporary override. The driver SHALL advise Train Control of this action immediately following the action or, if time permits, before the action is taken. 27 However, generally, doing so without permission from the train controller is a breach of the Rules. 28 The railway system is controlled using CTC on the line on which Mr Cupak was travelling, which is a system of railroad operation, in which the movement of all railroad traffic through a designated section of track is directed by signals and switches that are controlled electronically from a central point. Centralised Traffic Control is defined in rule 1.1.24 of the Rules to be:- “A system of Railroad Operation in which the movement of all rail mounted traffic, through a designated section of track is directed by signals and switches that are controlled from a central point.” 29 The track so covered is known as CTC territory. On the Newman-Hedland rail, CTC is maintained using a system of electronic signals and switch controls. (Rule 5 of the Rules relates to signals and their uses.) 30 On the Yarrie line, the system of control ((ie) maintaining of separation between trains on the track) is by use of the train order system (see rule 12)). It allows movement of trains bi-directionally by the use of passes on an otherwise single line. The train order is a written authority issued by a train controller authorising the movement of railway vehicles in non CTC territory or in CTC territory when there is a system failure. The train order operates on the foundation of absolute block working which provides that only one train will be permitted to be on any one section of the railway line at any one time. Whilst the system on the Goldsworthy line operates on the train order system, and that enables only one train in one section at any one time, the secondary system is the ATP node system which is similar to the ATP on the Newman line but is an easier version to understand and has nodes instead of signals. It does not work in conjunction with CTC as it does on the Newman main line. In the ATP system, the transponders are read by the locomotive and they enforce speeds for the locomotive. Thus, if a train is travelling too fast or the train does not have authority to go over the transponder, the ATP system will apply a penalty to a train, that is, it will bring the train to a halt. Thus, overriding the train on the Newman or Goldsworthy lines is a serious offence. That is because, if a driver overrides an ATP penalty on the Goldsworthy line, he is really overriding a secondary train protection system constituted by the ATP. The same rules apply on both the Newman and Goldsworthy lines (see Mr Jolly’s evidence at pages 143-144 (AB) and also Mr Anthony Holland’s evidence). 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3773 31 A node is a point on the track which enables the train controller to break the track into different sections to enable two trains to follow or track machines to follow trains. No signal like GNS3 marks a node. Instead, a node is set to allow a train in and will stop the train through the ATP system if necessary. Thus, in effect, it has the same effect as a signal. Going through a node, according to Mr Jolly, is the equivalent of going through a red light on the Newman line (see pages 154-155 (AB)). 32 Under the CTC system, the operator of a vehicle on the railway must treat the absence of a fixed signal indication where one is normally located as a stop signal. If a fixed signal is to be varied or supplemented, the train controller must make sure that it is varied or supplemented by an order in accordance with regulation 8.3. 33 On the Newman-Hedland line trains must obey the visual signals as they present, otherwise they must operate in accordance with the orders issued by CTC. Once it is issued a CTC order cannot be amended and will remain in effect until fulfilled or cancelled. Radio is the main means by which train controllers transmit CTC orders, but other forms of communication may be used if required. The crews receiving the CTC orders are required to write them down and repeat the message to traffic controller to verify the content. 34 If a signal cannot be cleared because of equipment failure, the traffic controller is to issue a CTC order authorising the driver to pass that or any other signal affected within the limits of the order and proceed. 35 When a train is stopped on the main line the driver may not dismount from the cabin until the CTC has advised directions for making the train safe from moving. This involves the application of handbrakes. 36 Trains use an airbrake system which consists of a series of mechanisms and components necessary to formulate a pneumatic brake for retarding or stopping the locomotive and individual cars of a train. The system consists of air compressors, control valves, piping brake cylinders and brake rigging. ICAM 37 BHP uses an investigation system and report system known as ICAM. The aim of this system is to provide a consistent framework for the investigation of accidents. The investigator is required to identify basic causes and contributing factors and to draw key learning experiences from those causes and factors. The investigation is to be conducted by a team and the process is required to be described in the report. There is to be a detailed description of the incident from the persons involved, including a description of the incident areas together with the sequence of events. 38 Before the Commissioner at first instance were a number of transcripts of radio conversations, a document showing train configurations and other matters. In addition, there was tendered to the Commissioner the investigation reports relating to three separate incidents. FACTS AND FINDINGS Mr Cupak and the Incident 39 There was a great deal of documentary evidence. There was also evidence from Mr Cupak and Mr Mark Shane Thomas for the CFMEU at first instance. For BHP, there was evidence from Mr Geoffrey Charles Jolly, Mr Phillip Kip McMahon, Mr Anthony Holland and Mr John Charles Ireland. Mr Jolly, when the incident occurred, was BHP’s Supervisor - Rail Transport, but he is now Superintendent - Rail Operations. Mr Ireland was Superintendent - Rail Operations. Mr McMahon was Signals Communication Supervisor at the time when he gave evidence. Mr Holland is Superintendent – Rules and Accreditation and was then Acting Superintendent – Rail Operations. 40 Mr Cupak is a long term employee on railways in the Northwest, first with Goldsworthy Mining where he commenced in 1976, and then without a break after he transferred to BHP. He is a level 5 driver, which is a senior classification. He is a man with a clean record apart from an incident in 1998, of which nothing was made in these proceedings. In any event, it was a traffic matter, not a locomotive driving matter. In all he had been employed by BHP for 20 years, and in the last two years on the Newman/Port Hedland main line. He was described in the ICAM investigation report as an enthusiastic, cooperative employee. 41 On 9 January 2003, he was driving a train consisting of two locomotives and 200 cars; with one locomotive on the front followed by 100 cars. The train was a fully laden iron ore train weighing approximately 28,900 tonnes and was two kilometres long. Later there was added another locomotive followed by another 100 cars. He left Yandi 2 Mine at 17.45pm. His train needed the support of two banker engines up the hill to Shaw. Mr Cupak said that, as it travelled up the hill from Hester to Shaw, for no reason that he could explain, the ATP system started a count down. It did so, too, on another three occasions but cut out before it reached zero. The night was dark and stormy with an abnormal amount of electrical activity from lightning and Mr Cupak concluded that this malfunctioning by the ATP was caused by a severe electrical storm then in progress. He formed the opinion that the ATP was malfunctioning because of the interference of the electrical storm. Near the 221 kilometre mark there was another ATP count down, and the train was travelling slowly, and even though he attempted to override it the train stopped. He reported this incident to the traffic controller after the event because there was no time to tell him beforehand. Of course, the effect of overriding the ATP is to deprive the train controller of information about the movement of the rail traffic. Mr Cupak was also unaware when he made that decision that the signal which he was approaching, GNS3, was at red (see page 357 (AB)). Ten metres from that signal is a switch. 42 The Commissioner at first instance accepted Mr Cupak’s evidence that he was upset and concerned and that he did not want to hold up traffic, particularly because of the bad weather conditions. Mr Cupak said that in over 30 years in the Pilbara, this was one of the worst electrical storms he had experienced. This was not denied. After the bankers detached, Mr Cupak’s train left Shaw on a green signal, and he therefore expected that there would be another green or at least a yellow signal on entry to Garden. That meant that the switch was set for straight ahead and that his train would not be diverted into the Garden siding where Mr Ashton’s train was (see page 19 (AB)). The ATP was reading a standard speed of 70 kilometres per hour which meant that the road ahead was clear and set for movement on the main line. The grade from Shaw down to the beginning of Garden is steep and is about six kilometres long. During the descent the ATP started a count down which Mr Cupak said that he tried to override, but a penalty was applied and the train came to a stop. When he came to a halt, he reported to Mr Mike Le Flohic, the train controller, that he was at the 211 kilometre point and was about one kilometre from the siding at Garden. He reported that the ATP had brought him to a standstill. Again, when he attempted to override the ATP on both occasions to prevent the train coming to a stop, he did not obtain permission from train control but the ATP was giving a very short count down and there was no time to contact train control, particularly since the radio was very busy that night with everything that was going on with the electrical storm. Although, as we have said, Mr Cupak reported the first override, he did not get around to reporting the second override with all that was happening, he said. 43 Mr Cupak became more anxious because he knew that a train driven by Mr Ashton was already in Garden waiting for Mr Cupak’s train to clear so that Mr Ashton could go on to the mine. 3774 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 44 Mr Le Flohic, the train controller, and Mr Cupak had a conversation by radio, when the train came to a stand on the descent into Garden. Because of the steep grade, Mr Cupak was told that he would need to apply 100% handbrakes and that assistance would be sent to help him out with this task. However, this clearly meant that Mr Cupak had to apply a large number of handbrakes. Mr Cupak dismounted, walked the train and manually applied handbrakes on the rail cars until he met up with his helpers, by which time he had applied 100 handbrakes. He climbed along the track and up onto the ballast for about a kilometre in doing so. He was also required to climb onto the rail cars to apply the handbrakes. 45 The application of handbrakes at night or at any time, requires the driver to walk beside the ore cars, often on the shoulder of the ballast, and the potential to slip down the batter which is steep makes the task difficult. The applying of 100 brakes took about an hour. During the absence of Mr Cupak from the cab of his locomotive, Mr Le Flohic, although required to do so by the Rules for the driver’s safety, did not contact him by radio every 10 minutes to make sure he was all right. Mr Cupak, as the Commissioner found, became more anxious because of this incident. 46 The traffic controller, Mr Le Flohic, had asked Mr Ashton, the driver of the down traffic train which was waiting on the Garden passing track for Mr Cupak’s train to enter Garden on the main line, whether he would be able to assist the application of the handbrakes on Mr Cupak’s train. The idea was that the controller would either send a vehicle from Redmont camp, or redeploy a gang which was already working close to the track to pick up Mr Ashton and transport him to where he could assist. However, Mr Ashton rightly advised the controller that the General Appendix requires that a percentage of handbrakes be applied on his train even though it was on a level grade. It was decided that by the time he applied 40% of the brakes on his train he would not be able to usefully assist Mr Cupak, so that he did not. Mr Cupak was upset about this stop. He said in evidence “There is sort of pressure on a driver to get his train moving and so not hold others or production up.” 47 After he had applied 100 handbrakes, Mr Cupak was taken back to his lead engine. He was upset about holding up other traffic. He cancelled the ATP penalty and then commenced to pump up the brake pressure. It is noteworthy that when he was not overriding it, the ATP brought the train to a stop. However, soon after he started to recharge the brake pipe the train rolled away. This surprised him because it should not have rolled with all of the hand brakes on. This is confirmed by the locomotive downloads which appear in BHP’s Book of Documents. 48 Mr Cupak was concerned about the roll away and he told Mr Le Flohic. It is at this stage that the controller had a conversation with Mr Cupak about other trains being able to lift into Garden with handbrakes engaged and whether Mr Cupak’s train could be dragged down to Garden with 40% of the brakes still on. Within two seconds of that conversation Mr Cupak told the train controller that the train was nowhere near pumped up and was rolling away ((ie) its brake lines were far from fully charged with air). The train was then moving and continued to move. It is quite clear that that was what was happening and that that is what he described to Mr Le Flohic who acknowledged him with the words “Roger John”. He received a confirmation of his call. The train then rounded the bend some 1600 metres from the Garden entry signal, and Mr Cupak saw that signal aspect of GNS at South Garden was set at red. Red means stop and he knew this. He concluded that the signal light was faulty due to the electrical storm. In addition, he remembered that he had a green leaving Shaw and that the controller had said something to him when leaving Shaw about getting an order to go into Garden. Mr Cupak had it in his mind that, if the signal had been set for green when he left Shaw, this would mean that the switch behind it was set for the main line track. It was not in dispute that the signal was green when Mr Cupak left Shaw. He had not been told that there was a red stop signal facing him as he approached Garden Siding. 49 When Mr Cupak saw the signal, the speed of the train was 30 kilometres per hour. He had an extremely short time to decide what to do. He was confused about whether he could make a brake application because the pump up of the brakes had not finished before the train started to move. The locomotive log shows that the pressure was not up to anything like 600 kPa, nor was there any movement in the EOT brake pressure, which showed at zero. Mr Cupak was concerned that if he made an emergency application of the brakes, which requires a minimum pressure of 210 kPa, that the train would not have stopped and it would have run away in the worst place on the track for that to happen. He decided to brake on the flatter section in Garden therefore. He had never had cause to override the ATP before. In short, he had to make a very quick decision about whether to dump the air or proceed through. He did not think that there was any risk in proceeding through because:- (a) Train control said that he would have an order to do so. (b) He had the green light on leaving Shaw. (c) The ATP read 75 kph on leaving Shaw which indicated to him that the switch was not set against him. (d) He could see that the track ahead was clear and that the switch was set for straight ahead. (The ATP was on override when he went through the red stop signal GNS3 at Garden Siding.) 50 Mr Le Flohic admitted that things were very hectic that night and that the CTC was down for some hours in various areas, including Garden and further, that having seven or eight trains to deal with as well as two Hi-Rail vehicles, he could not just concentrate on Mr Cupak’s train, whilst it was stationary at 211 blocking the line to other traffic. 51 When Mr Cupak noticed that the signal was red, he reported that to the train controller who told him that he would give him an order to pass the red light, but it was too late and the lead locomotive by that time was past the red signal. The rest of the train continued to roll through into Garden for another 12 minutes before it was brought to a stop by the use of dynamic braking only. This technique to stop the train did not involve the use of the air brakes. He said that the train never went about 45 kilometres per hour because the slope is much less in Garden than on the descent into Garden. 52 Mr Cupak also said that he had not seen this situation before, that is the situation he was involved in on that night. Mr Cupak omitted to tell Mr Le Flohic that the ATP was overridden before he went through the red signal. He did so, he said, because he forgot to. According to Mr Le Flohic, Mr Cupak did not tell him he was leaving the 211 kilometre mark and he did not know where Mr Cupak was until Mr Cupak told him that the signal GNS3 was red. However, it seems clear to us that, although he did not expressly say he was moving or seek permission in formal terms, when he told Mr Le Flohic that the vehicle was on the move, Mr Le Flohic should have been aware and, in our opinion, it was open to find that he was aware that the vehicle was moving, particularly since it only had one kilometre to cover into the Garden siding. The words “the train is rolling and I will have no difficulty moving” or words to that effect were quite clear and, in any event, both of them knew that Mr Cupak was required to go to Garden along the main line. 53 At that time, Mr Ashton was in the pass road at Garden and Mr Cupak was always on the main track and remained at all times on the main track and there was no danger of collision with Mr Ashton’s train. The switch near the signal GNS3 remained at all times set for the main track. No-one changed it. Mr Cupak travelled on the main track where he was intended to go. Indeed, if, as was the case here, all signals turned to red when the system went down, then the switches remained set in the positions which 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3775 they were before the signals became red. The only ability to change the signal rested with a controller or a person authorised by the controller to manually alter the set of the switch on the controller’s orders by opening a control box with a key and changing the set of the switch. This was not done on this occasion. There is no doubt on all of the evidence that the signal at GNS3 changed to red because of the storm and telemetric difficulties experienced that night with the severe storms which also caused the CTC to malfunction for some hours in various parts of the system. It is doubtful when the brakes were effected that, even if the ATP had been not overridden, that it would have brought the train to a halt in time. Mr Le Flohic, of course, did not tell Mr Cupak to stop when he heard that he was going through the red signal because Mr Cupak told him that he was pulling up at Garden. Mr Le Flohic did not warn other trains including Mr Ashton’s either that Mr Cupak had gone through the red signal. 54 The Commissioner at first instance found that this was a correct description of what had occurred. He found that Mr Cupak had made the decisions in good faith and did what he thought was in the best interests of the safety of BHP property and the safety of himself. On 10 January 2003, Mr Cupak made a written report about the incident (see volume 1, tab 6, page 81 (RBD)) as follows, formal parts omitted:- “On return Yandi two on locomotive 76 Serial No 1539 I received an ATP Penalty and stopped at 211 KM. Applyed (sic) 100% hand brake and commenced to charge brake pipe intending to roll into Garden siding. On moving off and at 45 KMPH notified train control GNS3 was at red, train control offered to issue CTC order to pass signal. So knowing that signal was at fault I did not dump the air and rolled into the siding against signal. Fully knowing that signal was at fault but not enough time to fill CTC order.” 55 There was an ICAM investigation of the incident on 15 January 2003 (see the documents in volume 1, tab 6, pages 39-52 (RBD)). As a result of the investigation, Mr Cupak was suspended with pay. 56 There was a breach of the Rules involving the passage of a signal at red and BHP were entitled to treat the matter as a very serious incident, so the Commissioner found. BHP conducted an investigation of the matter, and concluded that Mr Cupak had passed signal GNS3 at stop and had not advised train control of his use of the ATP override switch. Although, the supervisors, through the evidence of Mr Jolly, disagreed that it would have been inappropriate to make an emergency brake application, because such an application would have stopped the train. 57 BHP’s conclusion about the breaches was correct, the Commissioner found, and Mr Cupak was guilty of those breaches. 58 Mr Cupak was dismissed on the basis that he was considered by his employer to be unfit for further employment in all of the circumstances, having regard to his failure to comply with the railroad rules and regulations and the General Appendix to them, including passing a signal at stop without authority. There was no inquiry about Mr Le Flohic’s part in the incident. Other Incidents 59 The Commissioner had to consider whether the punishment by dismissal of Mr Cupak was fair, given the circumstances, not only of Mr Cupak’s incident, but how BHP applied the Rules in three incidents of driver misconduct. All of the incidents occurred on the Goldsworthy line. The three incidents were as follows:- i) One involved Mr Dominic Yap, a driver who, on 7 March 2002, deliberately overrode the safety mechanism of the ATP. He continued to override past seven nodes during which time he breached five temporary speed restrictions and five switch nodes and did not inform the traffic controller that the system was not operating normally. He only stopped his train when the traffic controller, in response to a panel alert, directed him to stop at node three. It was found that his actions compromised his safety and that of other drivers, but he was suspended for three days. ii) There was another incident involving an investigation of a train being driven by Mr Gregory Brandis passing a node three stop. Mr Brandis had failed to advise the train controller that his ATP was out of order and was being overridden so that he travelled 100 kilometres with no ATP, no fail safe system, and failed to advise the train controller. The driver’s explanation was that he thought the system had become “a little disorientated”. After investigation, he was retrained in the use of the override switch. iii) Next, there was an incident when a signal was passed at stop at Goldsworthy Junction. This occurred in September 2002. The driver, Mr Denis Robinson, had a lapse of concentration when a drink can, part of his crib, fell off the front bench onto the floor. He was distracted and by the time he recovered from that he saw signal GJ8 at red and was unable to stop the train until he had passed some 100 metres beyond on the signal. The reviewer in this case was Mr Holland, who was the same person who reviewed Mr Cupak’s incident and recommended his dismissal. In this case, Mr Holland also concluded that there were mitigating circumstances in that the driver was placed under undue pressure when his transport for work arrived late and he was not advised that his train was late. He was also open and honest. Further, Mr Holland said there was no damage or injury caused. Therefore, in the case of this driver, Mr Holland opted to take the view that the breach only warranted suspension. 60 The Commissioner found that Mr Cupak committed a breach of the Rules involving the passing of a signal at stop and concluded that Mr Cupak was guilty of the breaches which BHP said occurred and that BHP was entitled to treat it as a very serious incident. What he did and what it was open to the Commissioner to find was that, inter alia, Mr Cupak broke the Rules by overriding the ATP and passing the signal at Garden South GNS3, which was at stop, without authority. 61 The Commissioner at first instance considered these matters and decided that there was a denial of procedural fairness, compared to the other incidents where he found that both drivers deliberately ignored the safety systems, under no pressure, and, it would appear, wilfully, and they received minor penalties. 62 He therefore decided that to dismiss Mr Cupak in the circumstances of the night on which the incidents he was involved in occurred, was not fair to him, and was not a fair go all round given the whole of the way that BHP approaches driver discipline in its railway system. ISSUES AND CONCLUSIONS 63 This was an appeal against a discretionary decision, as that is defined in Norbis v Norbis [1986] 161 CLR 513 and Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194. Thus, upon appeal, the appellant must establish that the exercise of discretion by the Commission at first instance miscarried, applying the principles laid down in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU (1992) 73WAIG 220 (IAC)). If it is not so established by the appellant, then there is no warrant in the Full Bench to interfere with the exercise of discretion at first instance and, in particular, no warrant in the Full Bench to substitute the exercise of its own discretion for that of the Commission at first instance. 64 Insofar as the decision made at first instance depends upon findings made based on the credibility of the witnesses and having regard to the Commissioner’s advantage at first instance in having seen the witnesses, then it must be established on appeal that 3776 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. the Commission at first instance misused its advantage in seeing the witnesses (see Fox v Percy (2003) 197 ALR 201 (HC) and Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472), before the Full Bench can find that the Commissioner’s findings are in error. Grounds of Appeal 65 We now turn to the grounds of appeal. Ground 1 66 By appeal ground 1, it is asserted that whether there was any denial of procedural fairness or not in the dismissal, Mr Cupak committed, inter alia, two serious breaches of the Rules in overriding the ATP without authority and, in passing the red light signal at Garden South which required him to stop, without authority. 67 It was submitted on behalf of the CFMEU that ground 1 should be struck out because that ground did not raise a ground of appeal within the meaning of the principles in House v The King (op cit). That is, it did not allege that there was an error in the exercise of the discretion at first instance of the kind prescribed in House v The King (op cit). 68 The CFMEU’s complaint was that BHP merely sought to retry the matter on its merits. BHP’s reply was that the submission that the CFMEU was seeking to reuse the merit argument was lacking in merit, made very late, and should be considered in the light of BHP’s failure to either seek particulars or apply to strike it out. It was submitted for BHP that the appeal ground falls within the principle in Warren v Coombes and Another [1978-1979] 142 CLR 531. 69 The crux of the Commissioner’s findings were these:- i) That Mr Cupak had passed signal GNS3 when it was red, meaning that he was required to stop. ii) That he had not advised the train controller of his use of the override switch to override the ATP. iii) That these events raised serious issues in relation to his compliance with the Rules. iv) That although the supervisors through Mr Jolly disagreed that it would have been appropriate to make an emergency brake application because such an application would have stopped the train, it had to be acknowledged that BHP’s conclusions about the breaches which it said occurred were correct, and that Mr Cupak was guilty of those breaches. That constituted a finding that Mr Cupak had committed breaches of the Rules, and, indeed, that they were serious. v) The Commissioner at first instance had also made findings about the nature of Mr Cupak’s misconduct, which, of course, was constituted by failure to comply with the lawful and reasonable directions of his employer contained in the Rules. vi) The Commissioner found:- (i) That the night on which these events occurred was dark and stormy with an abnormal amount of electrical storm activity. (ii) That Mr Cupak said (and it was not gain said) that in 30 years in the Pilbara, this was one of the worst electrical storms which he had experienced. (iii) That as he was travelling up the hill from Yandi to Shaw at 7.45pm, for no reason which he could identify, the ATP system started a count down, which it did on three occasions but cut out before it reached zero. (iv) That Mr Cupak decided that this unusual event was caused by a severe electrical storm which was in progress. (v) That near the 221 kilometre peg there was another ATP count down which imposed a penalty that caused the train to stop by activating its brakes. (vi) That he reported this occurrence to the traffic controller after the event. (vii) That this was the first of a series of events which started to “accumulate pressure” on Mr Cupak. The Commissioner accepted his unchallenged evidence that he was upset and concerned. (viii) That after the bankers detached themselves to return to Yandi, Mr Cupak departed Shaw on the steep descent to Garden and on a green signal at Shaw. (ix) That, as the evidence of Mr Holland and Mr McMahon corroborated, this meant that there would be another green signal or a yellow signal at the entry to Garden for Mr Cupak. (That means that he could expect to proceed straight ahead on the main track on which he was travelling and not be diverted into the siding where Mr Ashton’s train was at Garden). (x) That, at that time, too, the ATP was reading a standard speed of 70 kilometres per hour which meant that the road ahead was clear and was set for movement on the main line. (xi) That, however, during the descent the ATP started a count down again. Mr Cupak tried to override it again, but a penalty was applied and the train came to a stand. He reported that he was at the 211 kilometre point and had not reached the Garden Siding. (xii) That his anxiety increased because he knew that Mr Ashton’s train was waiting in the siding for Mr Cupak’s train to clear so that Mr Ashton could go on to the mine. Mr Cupak did not want to hold up traffic, particularly because of the bad weather conditions, and because he knew that Mr Ashton’s train was in the siding at Garden ready to go down to the mine to pick up a load. (xiii) That the ATP continued to give trouble with a series of rapid count downs, but these were so close together that Mr Cupak could not contact the CTC because of the short time involved, coupled with very busy radio traffic as a result of the storm. (xiv) That Mr Cupak reported that the train had come to a stand, to Mr Le Flohic, the train controller. (xv) That Mr Le Flohic told him that he would have to walk the train and manually apply 100% handbrakes. 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3777 (xvi) That help was sent to him to do this, but he had still applied 100 sets of handbrakes by the time the help arrived. (xvii) That he climbed along the track over about a kilometre with the risk of slipping down the steep batter in order to apply the handbrakes. (xviii) That the task is a difficult and enervating one. (xix) That completing this task in the prevailing weather and darkness increased Mr Cupak’s anxiety. (xx) That Mr Cupak knew that Mr Ashton’s train was in Garden on a passing track, and he did not at any time after conclude that the entry switch to Garden was set for anything other than the main track, that is the track on which his train was travelling. (xxi) That Mr Cupak knew (as corroborated by Mr McMahon in evidence) that if there is a signal failure the switch remains set as it was before the failure. Thus, that Mr Cupak never contemplated failure. (xxii) That after the handbrakes were applied, he returned to his engine upset about holding up traffic, cancelled the ATP penalty, and then commenced to pump up the brake pressure, but as the brake pipe started to recharge, the train rolled away. (xxiii) That Mr Cupak told Mr Le Flohic that this was happening by radio. (xxiv) That when the train was some 1600 metres away from the Garden entry signal, Mr Cupak saw that that signal was set at red which meant that he was required to stop. However, he concluded that the light was faulty due to the electrical storm. He also remembered that he had a green leaving Shaw and that the controller had said something to him about getting an order to go into Garden. If the light was green when he left Shaw, then he would expect that the switch too was set for the main line track with another green signal or a yellow signal. That is the signal which he expected and inferably why he thought that the red signal was showing in error. (xxv) That Mr Cupak had an extremely short time to decide what to do when he saw the red signal. He was confused about whether he could make a brake application because the recharge of the brakes had not finished before he moved. He did not have full pressure, but had moved because the train was rolling. (xxvi) That he was therefore worried that if he made an emergency application of the brakes then the train would not have stopped and would have run away at the worst place on the track for that to happen. (xxvii) That by the time he had considered these things he was on the red light. (xxviii) That Mr Cupak reported to the train controller, Mr Le Flohic, that there was a red signal light at GNS3 and Mr Le Flohic said that he would give him an order, but it was then too late because the lead locomotive was past the red signal. (xxix) That the rest of the train continued to roll through into Garden for another 12 minutes before it was brought to a stop by the use of dynamic air braking only. The air brakes were not used. (xxx) That the Commissioner concluded that the train rolling away was yet another problem in an increasingly difficult set of circumstances faced by Mr Cupak, and that he had to make decisions which he made then in good faith and in what he thought were in the best interests of his personal safety and the safety of BHP property. (xxxi) That, however, some of his decision making was wrong. 70 The Commissioner went on to consider a number of relevant facts and the circumstances, as he was required to do by the authority of Miles and Others t/a Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385 (IAC). He did not determine the fairness or unfairness of the dismissal on the sole question of the breaches of the Rules, and he was right to do as he did. 71 Ground 1 is really a ground which alleges that the Commissioner at first instance erred by not determining that the dismissal was fair, having regard to the actual breaches of the Rules themselves, and his conduct, and is therefore a valid ground. 72 It was submitted that Mr Cupak made the decision himself to override the last ATP without advising or seeking information from the train controller at any time, and without his consent. Mr Le Flohic, the train controller, certainly did not know that the ATP was in override. 73 It was submitted that the train controller was in the best position to make the decision about the use of the override switch and that Mr Cupak made the decision to override without telling him. That, of course, was the case. Mr Cupak did make the decision to override the last ATP penalty without advising or seeking information from the train controller. There is no doubt that the ATP is a fail safe driver backup system which enforces speed restrictions and compliance with signals. There is no doubt that the use of the override disables the only fail safe system which will enforce a safety parameter if the driver fails to comply with it. One reason for requiring that that use of the override switch not occur without notifying the train controller is to prevent the train controller being unaware that the other rail traffic and railway are not being protected should the driver not comply with the safety parameter. 74 However, it is to be noted that Mr Cupak did not override the ATP for a lengthy distance or time. Indeed, he did so for a short distance and for a short time only, namely for one kilometre or thereabouts. In this case, Mr Cupak was not aware that the signal GNS3 was red, nor in fact would it have been red except for the malfunction of the signals which had been happening for several hours. The same was happening with the CTC from time to time. When he received the ATP penalty and overrode the ATP switch, that was the case. If the ATP had been on, it would have acted as a continually updated warning and rapid response system and would have acted on the signal being red. That, of course, is so. 75 The Commissioner found that Mr Cupak had two minutes to decide what to do. This would not have occurred clearly had the ATP not been overridden. In other words, had the ATP been on, the train would have been brought to a halt at the red signal, provided of course that the ATP had not malfunctioned before that and brought the train to a halt again. In this case, Mr Cupak misinterpreted the reason for the ATP penalty, thinking that it was malfunctioning when it was in fact operating to prevent his passing signal GNS3 which was at stop. 76 It was submitted that his passing the signal at red was particularly serious because the CTC system uses the signalling system to authorise movement of rail traffic and therefore ensures train separation. This, of course, it does. It was submitted that proceeding through a signal at stop compromises the train separation system and there is a high risk of injury and/or damage 3778 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. when the system which ensures trains of the size and weight running on the Newman main line are separated, is compromised. In other words, put simply, there is a risk of collision. Whether it is high or not depends on the circumstances of any one incident. 77 There was an allegation that Mr Cupak did not know that it was safe to pass the signal yet chose to do so. 78 What he did not know, it was submitted, was why the signal was red, although he knew that the signal was red and red always means stop. That was clearly the case. He was mistaken when he thought that the signal was malfunctioning, because it was malfunctioning and that was the clear evidence of the witnesses, Mr Le Flohic, Mr Ireland and Mr Holland. Mr Cupak did not know what the terms of the CTC order would be and was wrong in thinking that the train controller was going to give him an order, it was submitted, to go through the switch without stopping because the train controller knew that the switch was set properly. It was therefore an error for him to conclude that the switch was set for the main track. He knew, as the Commissioner found, that Mr Ashton’s train was present in the siding at Garden and concluded that the signal was faulty due to the electrical storm. That is certainly what he did. He had in his mind, therefore, it was submitted, that if the signal had been set for green when he left Shaw, this would mean that the switch behind it was set for the main line track. (A number of indications about this were referred to in submissions). 79 On a fair reading of the evidence of Mr Cupak, Mr McMahon and Mr Holland, it is quite clear that when the system fails in the way in which it did, the signal lights go to red and the switch remains as it was set before the lights went to red. It cannot be changed except by the controller or someone else authorised by the controller to do so, as we have said. Further, Mr Cupak’s train was going into the main line at Garden. That was what he and the controller discussed and knew. There was every reason why, therefore, he should assume that the switch was still set for him to proceed down the main line, particularly if he was convinced, as he was, that the signal light was wrongly set at red. What Mr Cupak thought was, of course, entirely correct. 80 It is, of course, the case that Mr Cupak did not stop at the red signal as he was required to do. We have already said that, of course, the signal was malfunctioning and showed an incorrect colour. 81 It was submitted, too, that the Commissioner was wrong in finding that Mr Cupak did not use the brakes to bring the train to a standstill because he was concerned that he did not have enough brake pressure to use the emergency brake. He also failed to advise or properly advise the train controller before it was too late, so the submission went. By the time he reported that he was on the red light to the train controller and the train controller advised him that he would give him a CTC order, it was too late and the lead locomotive was past the GNS3. 82 As we make clear later in these reasons, Mr Cupak’s train passing through the red signal was brought about by his lack of confidence in his brakes and the very brief period during which the events occurred required him to make a hasty judgement. Indeed, everything happened so quickly that there was no time to give him a train order, even orally, it would seem. The problem with the brakes, of course, was that they had not been fully recharged. That caused the movement of the train and it rolled down the steep descent. 83 The Commissioner made a finding about what Mr Cupak meant when he told the train controller that he was starting to move, but he did not make a finding in relation to what the train controller understood from Mr Cupak’s radio transmission. The transmission read as follows:- “JC… Hedland 76 Mick I’m nowhere near pumped up and she’s starting to roll away already so I’m gonna have no trouble moving it. ML… Roger John” 84 On a fair reading, that is clear advice, albeit informally expressed, that the train was moving and was moving to Garden Siding. The words “roll away” do not, on a fair reading, mean loosening up the cars which had become bunched. They mean that the train is rolling away. Mr Cupak was driving the locomotive. He saw what occurred and he reported it in plain words to Mr Le Flohic. Mr Le Flohic, in saying that he did not know that the train was moving, either forgot what Mr Cupak said, misunderstood what Mr Cupak said, or misrepresented his knowledge of it with the wisdom of hindsight. 85 The evidence of both Mr Cupak and the train controller was that the first that the train controller knew that Mr Cupak was going to go through the red signal was when Mr Cupak told him that he had already passed the signal. It was submitted that the train controller could not have taken any action to prevent the incident because the first opportunity for the train controller to do anything was when Mr Cupak had passed or was about to pass a red signal, and that would seem to be so. However, when he was told by Mr Cupak that the light was red, Mr Le Flohic had no difficulty giving him an order to go through the red light. Later, in evidence, Mr Le Flohic said that the order he proposed to give was that Mr Cupak should go to the red light, stop there and check the switch. The radio transcript reveals something entirely different. It reveals clearly that the order was to be to go through the red signal at stop. The exchange which covered the report of Mr Cupak that he had a red light and could not stop, that he had to go through it, and Mr Le Flohic’s responses, took from 22.11.55 to 22.12.14, a very short time (see page 705 (AB)). It was as follows:- “JC 76 Mick I don’t know what’s going on here, I have a red light here at Garden here and I can’t stop I’ve got to go through it. ML OK I’ll give you an order John are you ready? JC I’m past Mick, I’ll have to pull up down at Garden here. ML Yeah Roger John.” 86 That interchange reveals a number of things. First, the surprise of Mr Cupak that there was a red light at Garden. Second, his report that there was a red light. Third, that he was unable to stop and had to go through it. Fourth, that Mr Le Flohic, having been told that Mr Cupak had to go through the red signal, proposed to give him an order to do so. The incident took fleeting seconds. Fifth, that Mr Le Flohic would not have given such an order had he thought that the switch was not set full ahead. Sixth, that Mr Cupak, when that was said to him, had already passed in his locomotive the signal and informed Mr Le Flohic accordingly. Seventh, that Mr Le Flohic, as he would have been otherwise required to do, did not tell Mr Cupak to stop because, as Mr Le Flohic reported, Mr Cupak said that he would have to pull up at Garden which is of course what he did. 87 There were submissions made that the surrounding circumstances of the accident compounded the danger created by Mr Cupak’s conduct, and it increased his culpability (see the findings of the Commissioner paragraphs 59–70 and paragraph 78). 88 The Commissioner found, and the findings were not challenged, that the night was dark and stormy with a very severe electrical storm, there was an abnormal amount of electrical activity from lightning and it was one of the worst electrical storms Mr Cupak 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3779 had experienced in over 30 years. Further, it was not in dispute that Mr Cupak did not want to hold up traffic, particularly because of the bad weather. This, it was submitted, was no excuse for the breach of the Rules committed. The Commissioner found that a series of events had caused Mr Cupak to act as he did, make the decisions which he did and that those events, including the fact that he was fatigued, partly because he had had to walk the train putting on 100 handbrakes. That this occurred was not disputed on appeal, but what was submitted was that this was no excuse for his acting in breach of the Rules. 89 In relation to Mr Cupak’s ability to contact the train controller, the Commissioner found that Mr Cupak remembered that he had a green signal leaving Shaw and the train controller had said something to him about getting an order about going into Garden. Mr Cupak was unable to contact the train controller because the radio traffic was very busy and as a result of the storm, but Mr Cupak knew that he might need a train order. 90 It was submitted that there was no exception in the Rules to the prohibition against the drivers passing signals at stop and overriding the ATP without authority, where the driver is unable to contact the train controller. It can be no excuse for a driver breaching those Rules to establish that the driver could not contact the train controller to obtain authorisation to undertake actions which would otherwise be in breach of the Rules. He also knew that he needed a CTC order to get to Garden. 91 The Commissioner also found that Mr Cupak could identify that, on four occasions, the ATP started a countdown but cut out before it reached zero, as the consist travelled the hill from Hester to Shaw. Further, he found that the ATP was giving trouble with a series of rapid countdowns and that Mr Cupak concluded that this unusual behaviour by the ATP was caused by a severe electrical storm which was then happening. It was submitted that there can be no excuse for the driver breaching the Rules to establish that the ATP system was behaving unexpectedly or that he assumed that it was malfunctioning. In fact, it was functioning correctly so as to prevent Mr Cupak from proceeding through GNS3 at red. 92 Thus, so the submission went, Mr Cupak created the dangerous situation in which he found himself. Thus, further, to proceed in breach of the Rules when the ATP system seemed to be malfunctioning could only make his conduct more inexcusable, particularly where the Rules protect against both perceived and unperceived hazards. It is clear that there was not a situation of actual danger because the main line was set for Mr Cupak to proceed along and he went where it was always intended that he should go, and where he had in fact been directed to go. There was no danger of a collision with any train or any other vehicle, particularly Mr Ashton’s. 93 Further, it was submitted that, if Mr Cupak’s conclusion that the ATP was malfunctioning is accepted, then it was not safe to then assume that the road ahead was clear and set for movement on the main line on the basis that the ATP was reading a standard speed of 70 kilometres per hour. 94 Thus, Mr Cupak knew what the Rules required and chose not to comply, so the submission went. He acted without knowing what the consequences of his actions might be or without giving them any real or proper consideration. He was therefore, reckless, it was submitted. Thus, the Commissioner erred, it was submitted, in characterising his decisions as made in good faith and in what he thought were the best interests of his personal safety and in the safety of BHP’s property. 95 It is, of course, necessary, as we have said, to determine the quality of the act or acts of Mr Cupak as well as to examine all of the circumstances which are relevant to his dismissal. It was necessary, too, to consider all of the circumstances to decide whether the respondent had established whether the dismissal of Mr Cupak was unfair. 96 We should add that in a case where there has been a summary dismissal, the eventual conclusion might be that the dismissal was fair because the nature of the act of omission of the dismissed employee was so serious that industrial fairness justified the dismissal. 97 That, of course, does not mean that all of the circumstances are not required to be considered in any particular matter. They do, therefore, insofar as this ground required the Commissioner to merely confine himself to the nature and quality of Mr Cupak’s act or acts of omission or commission, then it has no merit and is not made out. 98 However, it is necessary to consider the breaches of the Rules which Mr Cupak and all of the other drivers are required to obey and the circumstances surrounding them to determine the quality of Mr Cupak’s alleged act or acts. 99 The circumstances of the night itself were these. This was a night, which it was not disputed, was dark and on which there were severe electrical storms. Mr Cupak’s evidence that it was the worst night which he had experienced for storms in thirty years in the Pilbara was not denied and was open to be accepted. The electrical storm had interfered with the CTC systems. It was open to so find and it should have been found that the conditions were extreme and that they were interfering with the electrical controls, communications and systems. Even if the electrical disturbance was not interfering with the electrical controls and signals, as Mr Cupak thought they were, then it was not unreasonable, given the storms, and it should have been so found for him to think so. He gave evidence which was not shaken that the ATP was unaccountably going into countdown and threatening, therefore, to bring the train to a standstill. It, of course, eventually did bring the train to a standstill. To prevent that occurring, Mr Cupak first tried to override it but was not successful. He ascribed this aberration in the performance of the ATP, in his mind, to the severe electrical storm and it was correct for him to do so. Mr McMahon agreed that that might be the cause. He did advise the train controller, Mr Le Flohic, that it was occurring, but did not get permission to override the ATP. It was inferable that this aberration commenced and finished so quickly that Mr Cupak, in order to prevent the train coming to a standstill, acted on his own judgement. He therefore did not have time to inform Mr Le Flohic that that was what he was doing, namely overriding the ATP. 100 It was significant that he thought to override it only for this limited purpose and at this time and, almost immediately after, he reported to Mr Le Flohic the problem which he was experiencing and the fact that he had attempted to override the ATP. Mr Le Flohic did not demur. The fact of the matter was that Mr Cupak told Mr Le Flohic and Mr Le Flohic knew that the ATP was malfunctioning and there was nothing to suggest that it would cease to. Indeed, it had by its malfunctioning, already brought the train to a stop, delaying its journey for over an hour. There was no attempt to conceal what he had done and he clearly reported to the train controller. After that, of course, on the steep descent from Shaw into Garden, the ATP began a countdown and imposed a penalty bringing the train to a standstill. It was still dark and stormy. It was undenied that Mr Cupak was anxious about delaying other trains and that that anxiety continued and indeed there were events which caused it to accumulate. The Commissioner so found and it was open to so find. 101 When the train ground to a halt because of the malfunctioning of the ATP, this was all reported and discussed with Mr Le Flohic, who arranged for assistance to be sent out to help Mr Cupak to walk the train and fix the handbrakes on each rail car. This he did for 100 cars, on a dark and stormy night when he was already anxious and he had to walk a kilometre on the ballast, climbing on and off rail cars as he fixed the brakes. 3780 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 102 Next, whilst there was some discussion by BHP’s witnesses about the matter, Mr Cupak described the train rolling away before he could fully recharge the airbrakes. That is how he described it contemporaneously to Mr Le Flohic by radio. The interpretation of it by BHP witnesses after the event would not and could not be of much assistance to the Commissioner. Mr Cupak was present and actually involved when he said what he said to the train controller and it is clear, on a fair reading, what he meant. It was, as we have discussed above, open to find that the vehicles were rolling and it should have been so found. 103 What then occurred was that the train proceeded down the steep descent into Garden. The Commissioner found, and it was not contended otherwise, that the pressure on Mr Cupak had increased because of the events of that night, including this last event. It was not denied, nor was Mr Cupak shaken in his evidence, that when he left Shaw, the signal was green. He also had it in his mind that the controller, Mr Le Flohic, at about that time said something about giving him an order to go into Garden when he left Shaw. All of this meant that the switch, as far as he was concerned, was set for him to continue along the main track and not into the siding where Mr Ashton’s train was waiting, as he knew. If the signal was green when Mr Cupak left Shaw, then the signal at Garden should have been green or yellow which meant that the main line switch was set for him to proceed straight ahead. That meant that he would proceed down the main track on which he was travelling and not into the side line where Mr Ashton’s train was standing. That was also in his mind. That is what he believed was the case. 104 Earlier, as the Commissioner found, and it was not gainsaid, Mr Cupak was made the more anxious because he knew that Mr Ashton was waiting at the Garden siding to come onto the main track to go to the mine. The Commissioner found, and it was open to him to find, that the rolling away of the train was yet another problem in an increasingly difficult set of circumstances faced by Mr Cupak. Again, it was not in dispute that, when he was 1600 metres away from the signal and the switch at the entry to Garden, he could see that the signal was at red which he knew required him to stop, and certainly not to proceed past it without the train controller’s permission. He also knew that, if there is a signal failure, the switches remain set as they were before the failure. He concluded and concluded wrongly that the light on the signal, which was red, was faulty due to the storm because he remembered that he had a green light when leaving Shaw which meant a green or yellow light at Garden. Green and yellow lights are not stop signals. He also remembered Mr Le Flohic’s reference about an hour earlier to an order directing him to go past the signal at the entrance to Garden. 105 Mr Cupak also gave evidence that he was confused about whether he could make a brake application ((ie) an air brake application) because the brake recharge had not been completed before the train commenced to roll downhill forcing his hand. He also was concerned that, because he had limited pressure in the brakes, if he made an emergency application of the brakes, then the train would not have stopped and would have run away at the worst place on the track. Those are the things which he considered in the brief time during which he approached the signal at Garden. Again, it was open to accept that evidence, and find accordingly. 106 It was open to find, since it was not denied nor was Mr Cupak shaken on this evidence, that that was his thought processes and led him to make the judgements which he made, and it should have been so found. It is quite clear that Mr Cupak had a very short time in which to decide what to do. Indeed, in addition, he discussed his problem with Mr Le Flohic quite openly ((ie) his approaching the light while it was red), and Mr Le Flohic said that he would give him an order to go through the red light, but it was too late because the locomotive had passed the red signal by that time. It is therefore readily inferable that Mr Cupak, having first thought that the signal was wrongly showing red, realised that the signal was malfunctioning and advised Mr Le Flohic straight away. It is clear that the air brakes were not working properly, too, because on the evidence the train continued to roll into Garden on the main track for another 12 minutes before it was brought to a stop, not by the air brakes but by dynamic braking which are brakes operating off the engine. It was also clearly the opinion of Mr Cupak that, when he acted, there was no danger of any collision because he was proceeding down an unimpeded main track. That, to some extent was corroborated by Mr Le Flohic’s response to him on the radio when he reported this problem that he would give him an order to proceed through the red light. It is open to be found that Mr Le Flohic would not have spoken of giving Mr Cupak an order to proceed through the red light if it were not safe to do so. 107 There was some discussion about whether Mr Cupak braked before he went through the red light, in the course of submissions. Of course, he may not have braked before going through the red light, according to the charts recording the brake patterns of the lead locomotive. However, that is quite explainable. First, there was little time to decide what to do, and second, the air brakes themselves were not effective and the train required to be brought to a stop in the end at least by the dynamic brakes. Further, things were happening quickly and Mr Cupak was discussing the matter with Mr Le Flohic and it may not have been entirely clear to him when he commenced to brake. 108 This was a situation where, on a night of darkness and electrical storms, Mr Cupak was faced, on his own credible evidence, with a malfunctioning ATP which threatened to stop his train dead, and delay traffic on the line. He dealt with that in the heat of the moment without having an opportunity to do anything else by purporting to override the ATP to prevent the train being stopped. Further, he reported that immediately to the train controller, Mr Le Flohic. Later, he suffered the actual stoppage of the train by the ATP malfunctioning again. His attempt to override it was something which Mr Le Flohic could properly have concurred was likely to happen. On top of that, Mr Cupak then had to get out of the train and walk it with some risk of injury over a kilometre, putting on 100 hand brakes. All of the time, he was anxious and was conscious that he was delaying Mr Ashton’s train and other traffic. 109 The next problem to add to Mr Cupak’s woes was, as he reported to Mr Le Flohic by radio, the train was rolling away as the brakes were not fully charged. That is, the brakes were not holding it. He therefore was heading down a steep hill without properly operable air brakes. He informed Mr Le Flohic accordingly that the signal was set at red. He was also proceeding towards, as he later found out, a red signal. He made a decision which was reasonable in the circumstances not to apply his emergency brake due to the difficulties he had had with the brakes earlier, but to stop not on the slope but on the flatter land at Garden Siding. That decision, in the circumstances, was not wrong nor did it cause any actual danger at all. 110 Next, on his credible evidence, Mr Cupak concluded correctly that the red light on the signal was an incorrect signal brought about by the electrical storm activity because he had had the green light at Shaw and assumed that he should have the green or yellow light to go down the main track which he was on at Garden. It was open to infer that such a conclusion, based on his recollection of the green light at Shaw, was entirely correct (see Mr Holland’s, Mr McMahon’s and Mr Cupak’s evidence). It was submitted that Mr Cupak did not check with the train controller about the red light, but he saw it when he was 1600 metres away and he did, in fact, raise the matter, inferably as soon as he could, but not quickly enough, with Mr Le Flohic. That is why Mr Le Flohic mentioned the question of giving him an order to go through. At this time, Mr Cupak’s ATP had not been functioning properly, his brakes were defective and he was afraid to use his emergency brake. He made two decisions in breach of the Rules under pressure in a situation where his attempting to override failed and he reported what he had done and did it again when it was known the problems that he was experiencing, they having been reported by him to Mr Le Flohic. 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3781 111 Put shortly, the overriding or attempt to override was very brief and was in fact a minor breach in both the first and second instances, where Mr Cupak was acting under accumulating pressure from a series of mishaps. The crucial overriding of the ATP which again lasted only a kilometre before the red signal, after the train had been brought to a standstill on the descent into Garden, was not reported. That overriding, of course, might have effected a stop of the train before it proceeded through the red signal. However, the ATP had been malfunctioning and it is not at all certain what it would have done. It had, of course, stopped the train when it was not its function to do so. The failure to report this overriding of the ATP plainly occurred, on the evidence of Mr Cupak which was not shaken, due to a great deal of pressure on him. Further, although Mr Le Flohic knew of this problem, he did not remember the problem in the turmoil of the events of the evening. If he did not, it is not surprising that Mr Cupak, too, forgot to inform him of the third override. There was no actual danger caused, as was borne out not solely but significantly by the proposal of the train controller to give him an order to go through the red light on the main track into Garden, when he found himself on it and unable to stop. 112 This was not a wilful set of breaches of the Rules, though going through the red light was serious. The overriding twice was only for brief periods and directed to preventing the train stopping. It is very doubtful therefore that he could have reported the first one before the event, or the second one before the event. These were errors of judgement, the first very minor if it was at all, the second understandably made when a series of mishaps had caused anxiety and clouded his judgement. He was trying to do his best it was open to so find. He acted in good faith but erroneously. He had little time to act. He did the best he could according to the judgement which he made and he explained why he made those judgements and was at all times frank about these matters. 113 We would add this. The question is not whether Mr Cupak acted in breach of the Rules. He did. Perhaps twice and certainly once. The question is what was the nature of the breaches and his culpability. Even that question does not answer whether Mr Cupak was unfairly dismissed or not. 114 We make the following observations, too. At no time did Mr Cupak deny what he had done. At all times, he offered the same explanations of fatigue and misjudgement for his actions. He certainly overrode the ATP for brief periods and went through a red signal because he thought it was malfunctioning. What he did were found to be serious breaches of the Rules. He failed to report the final override and we have dealt with that. It was open to find, however, that the first attempt to override, which was not successful, was not a breach of the Rules because he was doing the best that he could in an emergency and reported what he had done as soon as he could. He offered facts in mitigation of his breaches and the Commissioner accepted them. On a fair reading of the evidence, it was open to the Commissioner to do so. Indeed, it was not submitted on behalf of BHP that he was not fatigued or that he had made misjudgements, merely that he was not allowed to breach rules. 115 As we have said, he did breach rules and offered explanations for so doing. That he did offer explanations was not considered, as far as we can tell, in relation to the treatment of Messrs Yap, Brandis and Robinson, who themselves offered explanations and/or facts in mitigation which appear to have been considered and given weight to in their cases, but not in Mr Cupak’s. That is something of a substantial inconsistency. We must confess that the submissions made on this ground do not, for those reasons, advance BHP’s case and, in particular, they do not purport to negative facts which support a finding of unfair dismissal because those facts mitigate his breaches of the Rules. Ground 2 116 By this ground, it was alleged that the Commissioner erred in finding that Mr Cupak was unfairly dismissed, given the whole of the “way” that BHP approaches driver discipline in its railway system. It was submitted that the finding was in error and manifestly wrong. Alternatively, it was not reasonably open, the allegation went, because the same standards of discipline were applied by the company in relation to the incident involving Mr Cupak when compared to the incidents involving Mr Dominic Yap, Mr Dennis Robinson and Mr Gregory Brandis. (As to the necessity to treat employees consistently in the context of unfair dismissals, see CFMEU v BHP Billiton Iron Ore Pty Ltd (FB) (op cit) at paragraph 233). Mr Brandis was ordered to be retrained in the use of the override switch. Mr Robinson was issued with a written warning (see page 530 (AB)). Mr Yap was also ordered to do retraining and suspended for three days. 117 For BHP there were a number of differences submitted to exist between the circumstances of Mr Cupak and those of Mr Yap and Mr Brandis. First, it was submitted that the primary train separation system on the Goldsworthy line is the Train Order System which is different from the CTC system on the Newman/Hedland line. The train’s limit of authority by that system is determined by the train order given by the controller, not by signal indications upon which the CTC relies. 118 It was submitted that Mr Yap and Mr Brandis had a valid train order to proceed past Node 3, and remained within their limit of movement authority at all times. Thus, so the submission went, when Mr Yap and Mr Brandis overrode the ATP they did not exceed the limit of their movement authority, whereas Mr Cupak did not have signal authority to proceed into Garden. Further, by overriding the ATP, Mr Cupak created a situation where he did, in fact, exceed his movement authority. 119 This is because, as we understand it, by contrast to CTC territory in which the ATP enforces limits of movement authority ((ie) signal authority) in train order territory, the ATP, in particular the ATP nodes, does not enforce limits of movement authority ((ie) the movement authority contained in the train order). 120 Thus, so the submission went, the functioning of the ATP in train order territory does not have a direct relationship to movement authority and so is not as important as it is in CTC territory. This, in turn, is because the primary safeguard against collision in train order territory is the order itself, which sets out the length of track on which the train can safely run. In CTC territory, the same function is performed by the signalling system. Therefore, so the submission went, the potential consequences of Mr Yap’s and Mr Brandis’ breaches of the Rules in relation to ATP overriding in train order territory were less serious than if they had occurred in CTC territory. 121 The points of comparison between Mr Cupak’s acts and those of Messrs Yap and Brandis were said to be these:- i) Mr Yap and Mr Brandis attempted to comply with Node 3’s signal when they were told by the train controller that it was at stop. ii) Mr Cupak, when he became aware that the signal GNS3 was at red, failed to attempt to comply with the signal and only applied his brakes when he was in Garden and travelling at 43 kph, which is a higher speed than the speed at which he saw the signal. 122 There was also a submission that there were other differences between the circumstances of Messrs Yap, Brandis and Robinson on the one hand and Mr Cupak on the other, and these were:- i) Mr Cupak committed breaches of the Rules by overriding the ATP system and by passing a red light ((ie) a stop light). 3782 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. ii) However, Mr Yap, Mr Brandis and Mr Robinson committed breaches relating to the ATP system only, not by passing a coloured light signal at stop. (That cannot be said of Mr Robinson who did precisely that, but he did not do both.) Mr Robinson certainly passed the signal GJ8 at stop, but he did not override his ATP). 123 The submissions continued as follows. By comparison, Mr Cupak passed GNS3 at stop and overrode his ATP without authority. Mr Yap and Mr Brandis only overrode the ATP without authority, but did not pass any signals at stop or breach the train order. By comparison, Mr Cupak overrode his ATP and passed a red signal at stop. 124 It was also submitted that there was no evidence, nor was any submission made on behalf of Mr Cupak, which indicated that the incidents involving Messrs Yap, Brandis and Robinson were the “whole of the way” that the company approaches driver discipline. 125 At the heart of this ground is the finding that Mr Cupak was not treated unfairly because he was not treated inconsistently in comparison with other BHP employees who committed breaches of the Rules. Mr Yap, Mr Brandis and Mr Robinson were not dismissed and were very leniently treated by retraining or warnings. That is quite clear. 126 Mr Cupak was a long standing employee for over 20 years with a very good work record, co-operative and enthusiastic. The incident in 1998 was not even mentioned in any detail and therefore cannot be regarded as adversely reflecting on him to any extent. A great deal of weight should have been attached to his blameless record. 127 We have referred to the submissions which seek to distinguish between the acts of the four men. One thing is common. They committed breaches of the Rules. They were all therefore guilty of acts of disobedience. In the case of all of them, except Mr Cupak, it was alleged that they had committed only one breach of the Rules. In our opinion, the breach of the Rules constituted by overriding the ATP without the knowledge of the train controller occurred only once in circumstances where it was not reported immediately and which could only be considered to be minor, particularly since each event occurred for a specific purpose, to stop a problem, and for a quick period. Indeed, the necessity to override had been reported earlier to Mr Le Flohic, the train controller, and was known to him. The final override which led to Mr Cupak passing through a red signal which was an aspect of the signal brought about by a malfunction, was not reported because of the pressure of events on Mr Cupak and it was open to so find. 128 We deal with the substantial submission for BHP that there is a distinction between the CTC and train order systems which has a particular effect for this case. The distinction was based on this. Under the CTC system, one can travel only up to signals unless authorised by the controller, and the ATP effects braking and acts as a speed limit enforcer. In the train order system, which is the system in which Mr Yap, Mr Brandis and Mr Robinson were, once an order is given, the train has free access to that section of the line and there should be no possibility of other traffic intruding there for the time and the section which the order is valid. However, the ATP operates as a safety backup to prevent incidents occurring whilst the train is in that section of the line. There is no question of primary or secondary train separation provisions in the case of the ATP. 129 In the case of Mr Yap, that backup was off and he did not inform the controller and travelled without it. In the case of Mr Brandis, he travelled quite deliberately over a long distance overriding the ATP ten times deliberately and with no safety backup and went through a stop node. This was a deliberate and lengthy act, not the act of Mr Cupak who acted on the spur of the moment with a train that was behaving oddly because of the ATP. 130 However, Mr Robinson’s serious act of inattention allowed his train to go through a red light because he was not attending to his work. There was a traffic jam ahead of him at Goldsworthy Junction, which is one of the major junctions, and one between the Goldsworthy line and the Newman line. As a result, he did not become aware that he was approaching the signal at the junction of those two railways, namely GJ8, which was red, even though he had passed through an earlier signal. He stopped 100 metres after the signal, using an emergency brake which Mr Cupak could not do, and indeed would not have been required to do. He was not vigilant, not keeping a look out and he was rearranging his crib and writing his diary (see page 519 (AB)). This was serious and dangerous inattention. The assessment of his act, and, indeed, the misrepresentation of its seriousness, in fact, by Mr Holland was entirely unsatisfactory and is itself evidence of an unfair differentiation against Mr Cupak. It matters not that Mr Robinson did not override his ATP because his act meant that the ATP was of no use either. Mr Holland’s and BHP’s treatment of the two gentlemen was entirely and unjustifiably different. One example of this difference was that Mr Holland gave credit to Mr Robinson for being honest about what had occurred whilst Mr Cupak also admitted what had occurred. There is no good reason in evidence why Mr Cupak was treated so severely and Mr Robinson so leniently. 131 Mr Yap’s behaviour was serious because it was a sin of omission rather than commission but the effect was the same, in that he failed to notify the train controller that his ATP was overridden. Therefore, he went through a series of nodes, having failed to inform the controller that the ATP had been overridden and in fact travelled for 100 kilometres with the ATP overridden and without the safety net of the ATP. This was a serious breach of the Rules. 132 Mr Brandis’ behaviour was unequatable to that of Mr Cupak in that he deliberately travelled for 100 kilometres with his ATP overridden, having overridden it himself and not having told the train controller that he had done so. He therefore left his train open to great risk and also was a source of risk to other employees and traffic on the railway. Mr Cupak, however, omitted to advise that the ATP was overridden and travelled only a brief distance, about one kilometre with it off. Further, he had an explanation for why he did so and had informed the controller of previous problems with the ATP. His act was not a deliberate failure to comply with the Rules. In Mr Brandis’ case and Mr Yap’s case, there was no malfunction of the ATP requiring it to be overridden, as there was in Mr Cupak’s case and there was no report of the problem, contrary to what Mr Cupak did. No explanation or satisfactory explanation for the breach of the Rules was offered by Mr Brandis or Mr Yap. Mr Cupak, however, has offered a detailed explanation of the whole set of circumstances surrounding the matters in respect of which he underwent investigation. 133 Mr Ireland agreed that to do as Mr Yap and Mr Brandis did was serious. The ATP is, as the witnesses said, the fail safe system. In Mr Cupak’s case, too, of course, the ATP might have malfunctioned and applied another penalty if it were left on. His sin was not to report it because he was under pressure and was anxious, which he was. The fact of the matter is that he had a malfunctioning ATP. In the case of Mr Yap and Mr Brandis, what they did was serious in that their speed, which is regulated by the ATP, could not be regulated, in that they were not in a position to comply with directions about signals over distances and several nodes and that they both wilfully and without good reason unilaterally suspended the operation of the ATP which works in a similar way to the ATP on the Newman line, as the manual prescribes. Mr Yap travelled 100 kilometres without the safety protection of the ATP and failed to stop at Node 3. Mr Brandis travelled through switches and nodes in wilful disobedience of the Rules and went through a node at stop. Both set the safety system at nought. This was different to Mr Cupak, who was working under immense pressure with malfunctioning equipment and was making judgements as best he could. Both Mr Yap and Mr Brandis were treated with unaccountable leniency, given that whilst the effect of their conduct might be said to be less 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3783 than that of Mr Cupak, although on an objective basis it was not, their behaviour was reckless and deliberate. What they did simply did not merit the lenient treatment which they received. What Mr Cupak did did not merit the severe treatment which he received, having regard to his character as an employee with long service and lack of fault. It was quite unfair that they should have been so treated and that Mr Cupak should have been treated as he was. 134 Further, another element of unfairness which might have been found was that Mr Le Flohic was guilty of a serious breach of the Rules in failing to call Mr Cupak on the radio whilst he was walking the train putting on the hand brakes. He is required to do so every ten minutes to ensure that the driver, whilst out of the cab, is safe and failed, without explanation, to do so. Further, he did not warn other locomotives that Mr Cupak had gone through the red signal, but that not have been required because there were no trains “in conflict”. However, no enquiry took place into Mr Le Flohic’s conduct. 135 The Commissioner referred correctly to Mr Holland’s unsatisfactory failure to take account of Mr Robinson’s own version of the serious event in which he was involved. That version, of course, which should have been accepted, was that Mr Robinson went past the red light not merely because a can fell off the sill and distracted him, but because he was setting out his crib and was filling in his diary. His inattention could not therefore have been said to be momentary. This was because the act of filling in his diary and arranging his crib would take somewhat longer than a moment, it could be properly inferred. It is quite clear and it was open to find that Mr Robinson’s act was a wilful failure to be vigilant and observe signals, as he was required to do. He had in fact just passed one signal. To condemn Mr Cupak on the ground that there was a grave risk of danger when there was not, and to excuse Mr Robinson when there was, because he was approaching one of the most busy junctions in the rail system, was entirely unfair. To excuse Mr Robinson on the basis that no actual damage or injury was caused, when Mr Cupak was not excused when he should have been, for the same reason, is entirely unfair also. These regrettably are marks, amongst others, of the unfairness of the dismissal of Mr Cupak. Thus there was inconsistency in the treatment of Mr Cupak which amounted to serious unfairness and it was open to so find. 136 In this case, Mr Cupak was a locomotive driver, level 5, with a great deal of experience and almost no record of unsatisfactory behaviour as a driver. This was a man described as an enthusiastic and co-operative employee. It was open to find that he had committed two serious breaches of the Rules, namely going through the red light and overriding the ATP. It was not contested that he did this because of fatigue and strain and because he made a misjudgement. He was frank and open about these matters. He had long and fault-free service. His conduct was quite comparable in its seriousness to that of Mr Robinson and Mr Brandis, yet he was treated with overt inconsistency. 137 In our opinion, the Commissioner was right to criticise the approach to discipline of BHP but not on the basis that these incidents were the whole of the way that BHP approaches driver discipline. That was not the evidence. This is the third appeal where one driver has been dismissed and where other drivers or a controller have been treated unaccountably leniently. FINALLY 138 The Commissioner was correct to find as he did and for the reasons to which we have referred above, that the dismissal was unfair. In addition, it was open to find that it was unfair because Mr Cupak’s acts were not wilful disregard of the Rules, that he made an erroneous judgement in one case and perhaps not in the other case, that there was no actual or potential danger to others or to property, that Mr Cupak was a man with a good record acting under pressure, according to his best judgement, of a series of difficult incidents in difficult conditions, that he was contrite about what had occurred. It was open to find and it should have been found that the dismissal in the circumstances was entirely unfair and did not constitute a fair go all round (see Miles and Others t/a Undercliffe Nursing Home v FMWU (IAC) (op cit)). 139 Further, it was open to find that Mr Cupak was treated with unaccountable severity in comparison to that of other drivers who were all guilty of serious breaches and, in Mr Robinson’s case, a worse breach. It was open to find that the approach to discipline, as exemplified by Mr Cupak’s treatment, was lacking in equality and thoroughly unfair. It was also open to find that Mr Cupak’s breach of the Rules in relation to the overriding of the ATP was only a breach in relation to the final overriding. That is, for the reasons which we have mentioned above, and even then because of the malfunctioning of the ATP, it was open to find that Mr Cupak was, in part, very much the victim of circumstances on a difficult night. It was open to find that the nature of Mr Cupak’s acts did not at all justify dismissal and also, particularly given his worth as an employee and his good record, that it was unfair, further, to dismiss him. 140 It was also open to find that the fact that Mr Le Flohic was not even investigated for a breach of rules was further evidence of unfairness. However, we make no such finding since it was not a ground of appeal. 141 Finally, although because of the reasons which we have referred to, the dismissal was unfair, it was also unfair if it were necessary to so find, because Mr Cupak was not treated with the consistency with which the other drivers were treated when they broke the Rules, and it was open to find on that basis alone, just as it was open to find on the basis of the nature of his acts alone, that the dismissal was unfair. 142 It was open to find, and the Commissioner should have found, for all of those reasons, that the dismissal of Mr Cupak was unfair. It was open to find, and it should have been found, on a proper exercise of the discretion at first instance, that Mr Cupak was unfairly dismissed, applying the principles laid down in House v The King (op cit). The Commissioner was right to so find. 143 For all of those reasons, we would dismiss the appeal. SENIOR COMMISSIONER A R BEECH: 144 I have had the advantage of reading in draft form the Reasons for Decision of his Honour the President. I too agree that the appeal should be dismissed. I do not consider that the appellant in this matter has been able to demonstrate any error on the part of the Commission at first instance. 145 The Commission at first instance correctly concluded that Mr Cupak had breached the Rules involving passing a signal at red and also concluded that the appellant was entitled to treat the matter as a very serious incident. However, a breach of the Rules cannot be divorced from the context of the circumstances in which the breach, or breaches, occurred. It is not without significance, in my respectful opinion, to note that the circumstances leading to Mr Cupak going through the red light include the evidence that when he reported this to the train controller, the train controller was prepared to give him an order which would have permitted him to go through the red light (AB2-302) as the Commission at first instance recognised even though it was then too late for the order to issue because by that time the locomotive was past the red signal. It was open to the Commission at first instance to prefer the evidence of Mr Cupak in relation to the train rolling away and for the Commissioner to reach the other conclusions which he did in relation to the breaching of the Rules. No error has been demonstrated. 3784 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 146 The Commission at first instance was quite correct to describe the issue to be considered as whether the punishment which was applied to Mr Cupak, the ultimate punishment an employer can impose (at paragraph [72]), was fair in the circumstances not only of the incident itself but how the appellant applies the Rules generally when incidents of this nature occur on its track. In relation to the circumstances of Mr Cupak’s incident, I do not consider that the appellant has been able to show any error on the part of the Commission at first instance. 147 The Commissioner was quite correct to rely upon the other incidents advanced by the union in arguing that the punishment applied to Mr Cupak was inequitable compared to the punishments given to the other three drivers referred to. The Commission at first instance has not been shown to be factually incorrect in the description he gives of the circumstances of those three drivers. Although the appellant sought to make much of the distinction which may exist between the primary and secondary train separation mechanisms, the distinction was one of the matters taken into consideration by the Commission (at [76]). It is one thing for an appellant to show that the error made by the Commissioner was a failure to take into account a relevant consideration; it is quite another task, indeed a quite difficult task, to persuade an appeal bench that an error was made by attaching insufficient weight to an issue. 148 In this case the Commissioner took into account Mr Cupak’s 30 years’ of experience and in particular the circumstances which led to the incident involving him. There is no evidence of any other incident involving Mr Cupak which would have justified a conclusion that the Commission at first instance erred in his assessment of Mr Cupak’s circumstances on the one hand, and the circumstances of the other three drivers referred to. The Commission at first instance did not rely upon those circumstances to excuse what Mr Cupak did; rather the Commissioner concluded that those circumstances rendered it unfair for Mr Cupak to have been dismissed for what he did. 149 For these reasons I join with his Honour and the Chief Commissioner in the Order to issue in this matter. THE PRESIDENT: 150 For those reasons, the appeal is dismissed. Order accordingly 2004 WAIRC 13307 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BHP BILLITON IRON ORE PTY LTD APPELLANT -and- THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH DELIVERED MONDAY, 15 NOVEMBER 2004 FILE NO. FBA 8 OF 2004 CITATION NO. 2004 WAIRC 13307 Decision Appeal dismissed Appearances Appellant Mr A Power (of Counsel), by leave, and Mr R Curry (of Counsel), by leave Respondent Mr D H Schapper (of Counsel), by leave Order This matter having come on for hearing before the Full Bench on the 24th day of May 2004, and having heard Mr A Power (of Counsel), by leave, and Mr R Curry (of Counsel), by leave, on behalf of the appellant, and Mr D H Schapper (of Counsel), by leave, on behalf of the respondent, and the Full Bench having reserved its decision in the matter, and reasons for decision being delivered on the 15th day of November 2004 wherein it was found that the appeal should be dismissed, it is this day the 15th day of November 2004, ordered that appeal No FBA 8 of 2004 be and is hereby dismissed. By the Full Bench (Sgd.) P J SHARKEY, [L.S.] President. 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3785 2004 WAIRC 13463 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES IVY BILOS APPELLANT -and- AURION GOLD RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER J L HARRISON DELIVERED MONDAY, 29 NOVEMBER 2004 FILE NO/S FBA 25 OF 2003 CITATION NO. 2004 WAIRC 13463 Catchwords Industrial Law (WA) – Unfair dismissal claim – Appeal to Industrial Appeal Court – Remitted back to Full Bench – Unfair dismissal referred within the time prescribed – Jurisdiction – Appeal upheld and decision at first instance suspended and remitted – Industrial Relations Act 1979 (as amended), s29(1)(b)(i), s29(2), s29(3), s90 Decision Appeal upheld and decision at first instance suspended and remitted Appearances Appellant Ms C P Crawford (of Counsel), by leave, and with her Mr N Whitehead (of Counsel), by leave Respondent Mr A Cameron, as agent Reasons for Decision THE PRESIDENT: INTRODUCTION 1 The Full Bench heard and determined appeal No FBA 25 of 2003 making orders in the appeal dated 19 April 2004 as follows:- “(1) THAT appeal No FBA 25 of 2003 be and is hereby upheld. (2) THAT the decision made at first instance be and is hereby suspended and application No 1991 of 2002 be and is hereby remitted to the Commissioner at first instance to further hear and determine the question of loss, injury and any compensation therefor, in accordance with the law and the reasons for decision of the Full Bench.” (See the reasons for decision of the Full Bench, too, in Bilos v Aurion Gold (2004) 84 WAIG 1013 (FB)). 2 The respondent in the appeal, Aurion Gold, appealed against that decision to the Industrial Appeal Court. That Court delivered its reasons for decision on 22 November 2004 and by order dated 23 November 2004 allowed the appeal, set the Full Bench’s decision aside and remitted the matter to the Full Bench under s90(3) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) for further hearing and determination in accordance with the reasons for decision of the Full Bench. 3 The matter, having been remitted, was heard and determined by the Full Bench on 26 November 2004. 4 The Full Bench was required to determine whether the Commissioner at first instance had jurisdiction to hear and determine the application before it or whether the hearing was valid without an application under s29(3) of the Act, having been heard and determined. 5 S29(2) of the Act requires that a referral of a claim of an “unfair” dismissal under s29(1)(b)(i) be made “not later than 28 days after the day on which the employee’s employment is terminated”. 6 The question therefore is whether there was jurisdiction in the Commission to hear and determine the application, and that depended on whether the claim in the form of an application under s29(1)(b)(i) dated and filed in the Commission on 5 December 2002 had been referred within 28 days after the date of dismissal. It was common ground therefore before the Full Bench that if the dismissal occurred on 5 November 2002, the claim was referred later than 28 days after the day on which the employee’s employment was terminated. If, on the other hand, the dismissal occurred on 7 November 2002, the claim was referred no later than 28 days after the day on which the employee’s employment was terminated and the Commissioner at first instance had jurisdiction to determine the matter. I should add that the Full Bench found that Ms Bilos had been dismissed, and that was not a matter challenged upon appeal. 7 If the application was out of time, then the matter was a matter for application to the Full Bench that it accept the referral of the claim pursuant to s29(3) of the Act out of time. Alternatively, the Full Bench could remit that question to the Commissioner at first instance to determine. 8 Mr Cameron, for the respondent, however, foreshadowed a submission that if it were found that the claim had been referred out of time, then there was, as it were, no claim. The claim would then be a nullity from the outset, as I understood what the submission would be. 9 At first instance, the respondent, by its answer, admitted that the termination of Ms Bilos’ employment was effected on 7 November 2002. At the hearing at first instance, Mr Cameron referred to the dismissal as having taken place on 5 November 2002, and did so in the course of his submissions. 3786 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 10 The facts are simple. The respondent made to the appellant an offer of employment in the position of data base technician at Kundana which was a new position, her old position having been made redundant whilst she was on maternity leave. That offer was contained in a letter to her dated 29 October 2002 (see page 228 of the appeal book (hereinafter referred to as “AB”)). The offer is described as an offer of a transfer and the letter says, inter alia, “This offer will remain valid for one week from the date of this letter. If we do not receive a signed acceptance within this period the offer will lapse.” Therefore, one week “from” the date of the letter, the word “from” meaning after, the offer would lapse. Thus, the job had to be accepted on or before 5 November 2002. The start date for work in the new position was clearly expressed in the letter to be Monday, 7 November 2002. There was no position from which she could resign before 7 November 2002. Of course, as was undisputed, (and see her letter of 5 November 2002), the appellant was due to return to work on 7 November 2002 if she accepted the offer (see page 230 (AB)). 11 By letter dated 5 November 2002, the respondent wrote to Ms Delwyn Skinner of the respondent’s staff:- “Delwyn: As per our phone discussion today, I am writing to give notice that I will not be returning to work as planned on the 7th November due to the pay difference for the proposed position of Data Base Tech at Kundana.” 12 Her oral evidence, too, was, on a fair reading, that this was not a resignation, and, indeed, that was accepted by the Full Bench and not appealed against. Further, her evidence was that she wished to discuss further, alternative employment. 13 By letter signed by Mr Hadyn Hadlow dated 5 November 2002 (see pages 231-232 (AB)) the respondent acknowledged the appellant’s letter of 5 November 2002 in which she said that she would be unable to accept the position of data base technician at Kundana due to “the drop in salary package”. The letter says clearly that “The option of redundancy was then discussed” ((ie) after her advice that she would not accept the Kundana position). The letter also clearly states that “As advised, a draft calculation of your entitlements under our Redundancy Policy is attached for your perusal”. So a draft calculation only, not final calculations of redundancy entitlements, was forwarded with that letter and it was expressly said to be effective as of 7 November 2002 “as advised in your letter to us of 5 November 2002”. This I read as express acknowledgement that the termination of her employment effected by the respondent would be effective as at 7 November 2002, which is the date when Ms Bilos was due to start in her new position had she accepted it. She advised that she would not accept the transfer, and therefore would not commence work on that date. 14 It is quite clear then that 7 November 2002 is the date on which the employer regarded her dismissal as effective. That is the date on and from which the employer was to pay the amounts which it proposed to pay due on Ms Bilos’ termination of employment by the employer. By way of confirmation of that, the monies were not available for collection or collected until after 7 November 2002. In fact, Ms Bilos did not collect the monies until 21 November 2002 (see page 233 (AB)). When she did so, she made it clear in writing that she had not chosen to be made “redundant”, but had only “not accepted” the position offered on her return from maternity leave because she did not see the position as comparable to her original position. 15 In any event, once the Full Bench found as it did, that she was dismissed and did not resign, she was dismissed by the act of her employer, which, by its own expression and acts, did not take effect until 7 November 2002. 16 For all of those reasons, I would find that the dismissal of Ms Bilos took place on 7 November 2002. I would also find that the claim of “unfair” dismissal was therefore referred within the time prescribed by s29(2) of the Act, and there was no need to apply to extend it. As a result of that finding, the application was therefore, at all material times, valid or within jurisdiction if the latter characterisation is correct. In any event, however described, it was competent for the Commissioner at first instance to hear and determine the application under s29(1)(b)(i) of the Act by Ms Bilos. 17 For those reasons, I agreed to make the orders and directions which the Full Bench made. CHIEF COMMISSIONER W S COLEMAN: 18 I have had the benefit of reading the reasons for decision of His Honour, the President. I agree and have nothing to add. COMMISSIONER J L HARRISON: 19 I have had the benefit of reading the reasons for decision of His Honour, the President. I agree with those reasons and have nothing to add. THE PRESIDENT: 20 For those reasons, the appeal is upheld, the decision at first instance suspended and remitted back to the Commissioner at first instance. 2004 WAIRC 13426 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES IVY BILOS APPELLANT -and- AURION GOLD RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER J L HARRISON DELIVERED FRIDAY, 26 NOVEMBER 2004 FILE NO/S FBA 25 OF 2003 CITATION NO. 2004 WAIRC 13426 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3787 Decision Appeal upheld and decision at first instance suspended and remitted Appearances Appellant Ms C P Crawford (of Counsel), by leave, and with her Mr N Whitehead (of Counsel), by leave Respondent Mr A Cameron, as agent Order This matter having come on for hearing before the Full Bench on the 26th day of November 2004, and having heard Ms C P Crawford (of Counsel), by leave, and with her Mr N Whitehead (of Counsel), by leave, on behalf of the appellant, and Mr A Cameron, as agent, on behalf of the respondent, and the Full Bench having determined the matter, and that reasons for decision will issue at a future date, and the parties having waived the rights conferred on them by s.35 of the Industrial Relations Act 1979 (as amended), it is this day, the 26th day of November 2004, ordered and declared as follows:- (1) THAT the appeal No FBA 25 of 2003 be and is hereby upheld. (2) THAT the appellant Ivy Bilos was harshly, oppressively or unfairly dismissed by the respondent Aurion Gold on the 7th day of November 2002. (3) THAT the decision made at first instance be and is hereby suspended and application No 1991 of 2002 be and is hereby remitted to the Commission at first instance to further hear and determine the question of loss, injury and any compensation therefor in accordance with the law and with the reasons for decision of the Full Bench. By the Full Bench (Sgd.) P J SHARKEY, [L.S.] President. 2004 WAIRC 13424 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS APPELLANT -and- BHP BILLITON IRON ORE PTY LTD RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER S J KENNER DELIVERED FRIDAY, 26 NOVEMBER 2004 FILE NO/S FBA 20 OF 2004 CITATION NO. 2004 WAIRC 13424 Catchwords Industrial Law (WA) – Appeal against the decision of a single Commissioner – Harsh, oppressive or unfair dismissal – Matter not settled at conference and referred for hearing and determination – Breach of rules – Inconsistency of treatment of employees in disciplinary matters – Appeal dismissed - Industrial Relations Act 1979 (as amended), s44, s49 – Mines Safety and Inspection Regulations 1995. Decision Appeal dismissed. Appearances Appellant Mr D H Schapper (of Counsel), by leave Respondent Mr A D Lucev (of Counsel), by leave and Mr R Curry (of Counsel), by leave Reasons for Decision THE PRESIDENT AND CHIEF COMMISSIONER W S COLEMAN: INTRODUCTION 1 These are the joint reasons for decision of the President and the Chief Commissioner. 2 This is an appeal against the decision of the Commission, constituted by a single Commissioner, made at first instance on 10 May 2004 in application No CR 230 of 2003, and, indeed, against the whole of that decision. 3 By that decision, which was made in the form of an order, the Commissioner at first instance dismissed an application for relief by the above-named appellant arising out of s44 proceedings in the Commission. 4 The appeal is brought under s49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”). The order appealed against was made on 10 May 2004. 3788 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. GROUNDS OF APPEAL 5 The grounds of appeal, which were amended at the hearing, in paragraph 2 are as follows (see page 2 of the appeal book, volume 1 (hereinafter called “AB”)):- “1. The Commission failed to have any regard for the fact that there was no danger at all arising out of the manner in which the task was carried out. i) The Commission failed to have regard to the manner in which the respondent has dealt with other drivers who have engaged in more serious breaches of safe operating procedures. ii) The Commission erred in exercising its discretion on the basis of wrong facts viz; • that cutting out the air portion of the ATP was an extreme dangerous step when, in fact, it was not • that Burtenshaw did not offer any justification for conducting the weighbridge train task (“the task”) as he did when, in fact, he did offer such an explanation iii) The Commission failed to deal with or have any regard for Burtenshaw’s explanation that he believed he had authority to conduct the task in the manner in which he did. In fact, such a belief was, in all the circumstances, reasonably though mistakenly held and the Commission should have so held. The Appellant seeks an order quashing the decision appealed from and substituting therefor an order requiring Burtenshaw’s reinstatement plus compensation for loss of earnings.” BACKGROUND 6 The Commission, constituted by a single Commissioner, held a conference on 5 November 2003 pursuant to s44 of the Act in an attempt to resolve a dispute between the parties who are now the appellant and respondent respectively to this appeal. 7 The appellant (hereinafter called “the CFMEU”) is an organisation of employees having coverage industrially and constitutionally, inter alios, of locomotive drivers employed by the respondent, BHP Billiton Iron Ore Pty Ltd (hereinafter called “BHP”), on its railway lines in the Pilbara region of the State of Western Australia. As part of the iron ore mining and shipping operations carried on by BHP, it runs trains carrying iron ore to the Pilbara port of Port Hedland for shipment overseas. 8 In this case, the dispute was about the dismissal of a CFMEU member, and former union representative, Mr Ian Burtenshaw, a BHP employee. That dismissal is alleged to have occurred on 28 October 2003. In fact, it did. 9 The CFMEU alleged that the dismissal was harsh, oppressive or unfair. BHP denied that it was and opposed the claim and the order for reinstatement and compensation which was sought on behalf of Mr Burtenshaw. 10 After the conference in the Commission under s44 of the Act failed to resolve the dispute, the matter was referred for hearing and determination and duly heard and determined. 11 Disputes relating to the dismissal of locomotive drivers in the Pilbara involving breaches and alleged breaches of the “BHP Iron Ore – Pilbara District Railroad Rules and Regulations” (3rd Edition) (“the rules”) governing the rail operations and the conduct of locomotive drivers and train controllers in the Pilbara have been considered this year by a number of members of the Commission and by the Full Bench, in particular in CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 1033 (FB) (“Rudland’s Case”), CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3456 (FB) (“Hellmrich’s Case”), and BHP Billiton Iron Ore Pty Ltd v CFMEU (unreported) (2004 WAIRC 13308) delivered 15 November 2004 (FB) (“Cupak’s Case”). 12 The operation of the railway and the duties of drivers and train (or traffic) controllers have been considered in those cases in a great deal of detail both at first instance and by the Full Bench. 13 The rules by which the railway is governed are rules made under the authority of the Mines Safety and Inspection Regulations 1995. They relate to the safe working of the trains and rail vehicles on the BHP railways in the Pilbara. 14 Drivers and train controllers are required to know the rules and to comply with them by the rules themselves. Indeed, there are examinations to test knowledge of the rules, and training in the knowledge and use of the rules. (The rules include the General Appendix to them). 15 The railways are controlled by the Automatic Train Protection System (“the ATP”), which is described by the Commissioner at first instance in his reasons for decision. We reproduce for convenience part of that description:- “The ATP is a fail safe track side system working in conjunction with equipment installed in the locomotive so arranged that its operation will automatically result in the application of the air brakes to stop or control the speed of the train in designated situations should the driver not respond. The ATP ensures compliance with signals and other parameters which are loaded into an onboard computer. It does this by applying the train air brake system. A screen in the locomotive cabin provides the driver with information on the train’s current speed and a target speed to be achieved in the time allowed by the ATP before there is a penalty brake application. This is called a count down and the screen displays a message which tracks the count down to zero. The penalties are applied in two sets of circumstances. The first is when there is an over speed. Where the train is not complying with established parameters for that part of the line a count down will begin and if the speed is not met within the count down period a brake application will be made at the full service application rate. The second circumstance is protection against a signal being accidentally passed at stop. In this case an emergency application occurs.” 16 Communication is maintained between drivers and drivers, and drivers and train controllers, by radio as the primary means of communication. There are three different channels. All the necessary instructions to drivers and the control of traffic on the lines occurs over the radio which covers all operations. 17 It is the duty of train controllers to manage and direct the traffic on the lines. They are situated in Port Hedland and do so by radio with a large screen to show where traffic is moving. Whilst the drivers have responsibility for their locomotives and trains, the controllers have overall responsibility for and control of movement on the lines, and, in fact, absolute authority and control. 18 The events, the subject of these proceedings, took place in relation to a weighbridge which is located at and within the Goldsworthy Junction (“the junction”). That junction is a main junction where the Goldsworthy line and the Newman-Port Hedland line intersect. 19 At page 15 (AB1)) there is a helpful diagram depicting the junction with tracks and signals shown. The junction is located between the 13.6 km mark and the 5 and 6 km marks on the main line. By the main line we mean the line between the mines at Newman and the port at Port Hedland. 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3789 20 Switches enable traffic on the Goldsworthy line to cross the main line and also allow traffic to move from one line to the other. 21 The main line is subject to Central Train Control (“CTC”) ((ie) movement is regulated by signals, and by directions from train controllers, inter alia, concerning those signals). 22 On the Goldsworthy line movement is primarily regulated by train orders which enable trains or traffic to enter and travel in sections of the line at a particular time, subject to the travel within being controlled by nodes and the ATP. 23 All movements within the junction, however, are controlled by the CTC safe working system and the rules. In the junction there were and are two railways signals, GJ1 and GJ2. Signal GJ1 is adjacent to the main line at the 14.38 km mark ((ie) inside the Goldsworthy Junction). That is the arrival signal for rail traffic travelling south on the main line. A switch enables trains and vehicles to go to the Goldsworthy line from the main line because the switch connects the section of the Goldsworthy line from Finucane Island to Goldsworthy Junction to the main line. Another switch connects that section of the Goldsworthy line which runs from Goldsworthy Junction to Yarri. Signal GJ2 was and is located within the Goldsworthy Junction adjacent to the main line at approximately the 14.71 km mark. It is the arrival signal for traffic moving north towards Port Hedland on the main line through switches 11 and 12. 24 On 3 September 2003, Mr Ian Stuart Burtenshaw, a locomotive and train driver, was rostered to work a shift from 0300 to 1300 hours in the Port Hedland yard. He was directed by his supervisor there, Mr Trevor Hodson, at 6.00am to drive a work train consisting of a single locomotive (5665) (65 for short), pulling four wagons to Goldsworthy Junction and there to conduct calibration tests on the Goldsworthy Junction weighbridge which is located within the junction at the 14.56 km mark from the Hedland yard on the Newman line, the main line. The four wagons each contained different quantities of iron ore. 25 The weighbridge measures the tonnage of loaded iron ore trains and the results are used to calculate payments to contractors who load the trains at the mines. The weighbridge consists of a number of sensors attached to the rails which sense the weight of each car. They are connected to automatic identification readers. The weighbridge operates on the main line and whilst no signals govern its use it is (see the diagram at tab 2 (AB2)) located in that section of the railway between the signals GJ1 and GJ2. Therefore, the signals actually control movement over that section of rail and are vital to the control of movement over the weighbridge. GJ1 is located 172 metres from the weighbridge and GJ2 156 metres from the weighbridge. There are two directions from which the testing has to occur. One is the “empty” direction which is when a train is travelling south towards Newman. The other is the loaded direction when a train is travelling, having been loaded at the mines, north to Port Hedland where the ships are loaded with the iron ore. Testing is conducted from both directions to ensure correct calibration of the weighbridge. Weighbridge calibration is carried out about once a month. 26 There are no prescribed operating procedures for trains engaged in weighbridge testing. They are not exempt from the operation of the rules. The calibration must be conducted in accordance with the rules, and in accordance, in particular, with the signal authorities and the ATP system. 27 With Mr Burtenshaw, for the purposes of conducting the tests with instruments whilst he drove the train, was Mr Peter Collins, the communications supervisor of track and signals for Alstrom, which is a firm or company contracted to BHP to maintain signals and communications on the BHP lines. His task was to read the results which are electronically extracted from the sensors. As the driver of the train engaged in these calibration tests, Mr Burtenshaw was required to take the train a number of times over the sensors commencing at 30 kph and increasing by 5 kph on each pass until the last pass occurred at 60 kph. Then he had to conduct a number of passes, each decreasing in speed by approximately 5 kph until the last pass at 30 kph. As the passes occurred at faster speed, of course, he travelled further and had to reverse further back to the starting point. In order to conduct the test the train travels forward at the requisite speed over the weighbridge sensors, and having completed that pass the train is placed in “shunt mode” and reverses back over the sensors to its starting place, repeating the manoeuvre until the calibration is completed. 28 It was not in dispute that, in accordance with the rules, the driver, engaged in the calibrating exercise, is required to radio the traffic controller and obtain permission to use the ATP shunt mode switch to enable him to shunt backwards in this case. Mr Burtenshaw, on his evidence, sought and obtained that permission on two occasions, but gave evidence, too, that he did not think it was necessary to do so on every pass. 29 The ATP switch, in the view of BHP’s witnesses, must be engaged to allow the driver to complete what is called the propelling movement. Thus, the opinion expressed by witnesses for BHP was that once the train has passed in a forward direction over the weighbridge the driver must have permission from the train controller to use the shunt switch and a valid order to proceed from GJ1 to GJ2. When the propelling movement is completed, that is the reversing of the train or setting back, the shunt switch should be placed in the off position. 30 It is relevant to say, too, that on 1 September 2003, two days before this incident, which was not contradicted, and on his evidence, Mr Burtenshaw was told by his wife that she was leaving him and going to live with a close friend of his. This, he said, and it is understandable, had a devastating effect on him and although he was rostered to work on Monday, 2 September 2003, because of the state which he was in emotionally, he “booked off sick”. He had done that a number of times over some time preceding this incident because of on-going matrimonial difficulties. Further, he had been concerned that there might be such a relationship between his wife and his friend, and that was at the core of these problems. 31 He had been an engine driver since he was 24. At the time of the incident, he had worked for Robe River Iron Associates from 1978 to 1987 and with BHP continually from 1987 to 2003, a period of 17 years. 32 We now turn to the incident itself which was considered by the Commissioner at first instance in the course of a careful and detailed set of reasons. 33 Mr Burtenshaw, having got onto the work train with Mr Collins, travelled to Goldsworthy Junction. A matter in contention in this matter was that Mr Burtenshaw thought that he had a “one off” authority to complete the work of calibration ((ie) that he did not think that before each pass he had to obtain authority to “shunt”). He thought that he had “possession” of the junction. This latter notion was one which, on the evidence of witnesses for BHP, no longer obtained and had not obtained for years on the BHP railway lines in the Pilbara. It was not in the end in dispute either that Mr Burtenshaw had to get permission to pass the red signals each time he made a pass and/or to place the train in shunt mode. 34 Mr Burtenshaw said that the main reason for his belief was because he asked the train controller where other traffic was, and also asked “Roughly how much time do you think we have to play out here?” This was at about 7.06am, according to the radio transcript, and he was told by the traffic controller, Mr John Mathews, that he had until about 8.20am. It would seem that, at least for some persons, calibrating is not and was not a popular task because Mr Hodson, the traffic controller, said to Mr Burtenshaw when telling him that he was allocating to him this task, “You’ll hate me but I have to send you out on a work train at 0600”. 3790 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 35 Having arrived at Goldsworthy Junction, Mr Burtenshaw turned the train towards Port Hedland, using the transfer line, into a position between the two signals GJ7 and GJ8. The train controller, Mr John Mathews, then turned signal GJ2 to green to allow movement of his train towards Nelson Point. Mr Burtenshaw then commenced the first pass over the weighbridge in the junction. After he had passed the signal GJ1, having passed over the weighbridge, Mr Mathews gave him permission by radio to place the train in shunt mode, which he did. He then propelled ((ie) reversed the train) back to the starting point to prepare for the next pass in forward motion. He obtained this permission twice, and thereafter did not seek it or obtain it. After the second pass, the next pass commenced and he proceeded through GJ2 which was still red because the controller had not cleared the signal for movement. In the next 30 minutes, the work train driven by Mr Burtenshaw passed the red signal at stop 10 or 11 times in the course of the calibration exercise. 36 At 0726 the train controller received a run-by alarm, which we understand is an alarm which informed him that the train was passing through the signal when it was set at red. Red signals require traffic on the railway line in the CTC territory to stop at the signal and one cannot proceed past them without the express direction of the train controller. 37 At 0736 and again at 0741 Mr Mathews, the train controller, tried to contact Mr Burtenshaw by radio. However, he could not get through. This, it turned out, was because Mr Burtenshaw alleged that he had turned the radio right down, but not off, so that he could not hear Mr Collins’ instructions to him. Eventually the train controller at the Port Hedland yard telephoned Mr Collins in the locomotive cab on Mr Collins’ own portable telephone and asked Mr Collins to tell Mr Burtenshaw to contact the main line controller. Mr Burtenshaw did so at 0741, whereupon the train controller told Mr Burtenshaw to bring his train to a stop. Mr Burtenshaw asked him whether he should complete what he was doing. The train controller, Mr Mathews, said “Yes”. By that Mr Burtenshaw understood that he should complete another pass and he did so then brought his train to a halt. 38 The BHP rail supervisor on duty, Mr Ronald Edwards, having been informed at 0730 about this incident instructed that the train be brought to an immediate halt. He obtained some details from the controller. At 0755 Mr Edwards arrived at Goldsworthy Junction and observed the locomotive controls. He saw that the ATP was in shunt mode and the ATP cut out switch had the safety seal broken. It is necessary to break the safety seal to reach the cut out switch. The switch itself was in the off position, but the ATP was still operating, according to Mr Edwards. In the locomotive log book there was a note that the cut out seal had been broken for tests and that the train controller had been notified. The train controller had not been notified. Mr Burtenshaw said that he had entered in the log the fact that he had used the cut out switch on the ATP, which he did do. According to Mr Edwards, Mr Burtenshaw admitted to him that he knew that he, Mr Burtenshaw, had been passing signals without authority. Mr Burtenshaw was taken off the train. The ATP was, in due course, put into shunt mode and the train was driven back to Port Hedland. 39 Mr Edwards prepared for an inquiry into the incident, and one of the things which he did was to listen to the radio transmissions between Mr Burtenshaw and Mr Mathews. He was conducting a preliminary inquiry on 4 September 2003. Mr Edwards concluded preliminarily that the train driven by Mr Burtenshaw had passed signals at red ((ie) stop) on 11 occasions after complying twice with those signals. The number of times when this occurred was not denied by Mr Burtenshaw. 40 Mr Edwards interviewed Mr Mathews. Mr Mathews told him that he had a continuous run of alarms and tried to call Mr Burtenshaw on the radio. Mr Burtenshaw rang Mr Mathews and asked what was going on. Mr Mathews told Mr Edwards that Mr Burtenshaw had been passing signals at stop. Mr Mathews told Mr Edwards that Mr Burtenshaw replied when queried “Oh no, they will hang me”. Mr Burtenshaw then said that he asked permission to enter the shunt mode, but Mr Mathews said that he answered that he did not give Mr Burtenshaw permission to pass red signals. 41 Mr Edwards also said that Mr Burtenshaw insisted to him that he thought he had permission to conduct the operation in the manner that he did. He also alleged to Mr Edwards that he had the radio turned down so that he could hear Mr Collins. Safety Inquiry and ICAM 42 Mr Edwards prepared a Preliminary Incident Cause Method analysis report (“ICAM”) for the investigation, and, if necessary, disciplinary process which did in fact ensue. There was a safety inquiry first. This took place on 4 September 2003 on the instruction of Mr John Ireland. Mr Burtenshaw was interviewed but mentioned nothing about the emotional difficulties caused by his wife leaving him, but he did mention it later on in the course of the disciplinary inquiries and later in a letter to Mr Michael Darby, vice president rail operations. However, that was after he was told that he was to be dismissed. In fact, there were two disciplinary inquiries, one on 5 September 2003, and one on 12 September 2003. 43 Mr Collins was interviewed on 9 September 2003. However, he did not give evidence in the Commission. Mr Mathews did not give evidence in the Commission. 44 On 9 September 2003 Mr Burtenshaw mentioned that he was “under stress”. 45 The inquiry, as we have said, took place on 5 and 12 September 2003 and present were Mr Burtenshaw, Mr John Dorotich, BHP’s superintendent regulation and accreditation, Mr Warren Johncock, and later, instead of Mr Johncock, Mr Shane Thomas as union representatives, Mr Edwards and Mr Michael Hoare, senior human resources adviser to BHP. 46 Mr Mathews, the traffic controller, said in the course of the ICAM investigation that, when he first became aware of the unauthorised occupation of the junction, he thought that it might have been a “glitch” with the controller’s display panel. 47 He also stated that, after attempting to establish contact with the driver on two occasions, he did not continue, as his supervisor was handling the situation, and there were no other traffic movements within the area at the time. Thus, he was not overly concerned (see page 317 (AB5)). 48 On the same page the executive summary reads:- “Considering the illogical, irrational and continuing actions of the Driver of Locomotive 5665, the attempt to establish communications with the Driver should have become the highest priority.” (See the interview of Mr Mathews at page 323 (AB5)). 49 This remark was a criticism of Mr Mathews. 50 Mr Collins, in a written statement, whilst he confirmed that after train control approved Mr Burtenshaw operating in shunt mode, the driver disabled the ATP switch and the runs continued. 51 Mr Mathews at page 323 (AB5) also said this:- “Someone was on the way out there, he couldn’t do any harm going backwards and forwards, I thought it was all bullshit, you can’t believe what you see on the board.” 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3791 52 There was, too, he said, significantly, no movement for miles (see page 323 (AB5)). 53 On 12 September 2003 (see page 346 at page 353 (AB5)) there is a note that Mr Mathews said “It was going past red signals but he thought he was doing the right thing”. 54 Mr Mathews received a written warning for not following up as required by the rules, the failure of Mr Burtenshaw to answer radio calls. All persons are required to ensure their radios are in working order and set to the correct channels. Radio users are required to monitor all radio communications on their respective channels (see rule 3.4). Mr Mathews did not give evidence, and the evidence of what he said was contained in statements and records of interview, and records of radio transmissions. 55 On 5 September 2003 in the disciplinary inquiry and after the safety inquiry was completed, he, Mr Burtenshaw, admitted that on 3rd September 2003 whilst in control of locomotive 5665 at Goldsworthy he passed signals GJ1 and GJ2 at stop without authority, on numerous occasions, but he added that he believed he had authority to pass the signals, until later when he was told that he did not have that authority. He pleaded that he had not committed a wilful breach of the rules. 56 In his witness statement (exhibit S1, tab 1 (AB2)), Mr Burtenshaw gave evidence that, when he first arrived at the junction he sought permission to go into shunt mode for the testing runs, which permission was granted. The effect of the shunt mode is that it allows the train to go through a red signal up to a speed of 35 kph without the ATP giving a penalty, 35 kph being the speed limit for a train or rail vehicle in shunt mode. In fact, the evidence was that the passes were not required to be made at a speed in excess of 30 kph. Mr Burtenshaw explained that, because some of the passes required the train to be driven at speeds greater