Cheetham v Helensburgh Coal Pty Ltd [2016] FWC 4607 (12 August 2016) [2016] FWC 4607 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Peter Cheetham v Helensburgh Coal Pty Ltd (U2016/997) COMMISSIONER RIORDAN WOLLONGONG, 12 AUGUST 2016 Application for relief from unfair dismissal. [1] This decision relates to an application by Mr Peter Cheetham for an unfair dismissal remedy against Helensburgh Coal Pty Ltd (Helensburgh Coal), which is a wholly owned subsidiary of Peabody Energy Australia (Peabody). [2] Mr Cheetham was employed at Helensburgh Coal to work at the Metropolitan Mine on 14 July 2008 as an Underground Operator. Mr Cheetham was summarily dismissed on 26 February 2016 for deliberately breaching the Metropolitan Mine Health Management System by placing other employees’ safety at risk. [3] Mr Cheetham was represented by the National Legal Officer of the Construction Forestry Mining and Energy Union (CFMEU), Mr Adam Walkaden. Leave was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act), to allow Mr Trent Forno and Ms McMillan from Minter Ellison to represent Helensburgh Coal. [4] The Metropolitan Mine is an underground coalmine at Helensburgh, in the Illawarra Region south of Sydney. [5] On behalf of the Applicant, Witness Statements were relied upon by; Mr Peter Cheetham – Underground Operator Mr Matthew Brian Brown – Underground Operator Mr James Patrick Bunker – Underground Operator Mr Andrew James Davey – Underground Operator Mr Zachary Kenneth Mayo – Fitter Mr James Matthew Ralphs – Electrical Tradesman [6] On behalf of Helensburgh Coal, Witness Statements were relied upon by; Mr Andrew Clough – Vice President of Health, Safety and Environment, Peabody Mr James Matthew Ralphs – Electrical Tradesman Mr Donald Howarth – Deputy Mr Martin Sedgwick – Underground Operator [7] As a result of discussions between the advocates, only Mr Cheetham, Mr Davey, Mr Clough, Mr Howarth and Mr Sedgwick were required for cross examination. Mr Rae and Mr Sedgwick were issued with Notices to Attend by the Fair Work Commission (FWC). Background [8] This case is unusual on the basis that Helensburgh Coal have admitted that the allegation which resulted in Mr Cheetham being dismissed cannot be sustained by the evidence in the case. However, Helensburgh Coal are now relying on Mr Cheetham’s conduct that occurred on the same night, which they were not aware of at the time of termination. [9] On 4 February 2016, Mr Cheetham was driving an underground personal carrier (otherwise known as an SMV, Driftrunner or bus) with approximately 11 of his colleagues on board at the conclusion of their shift and weekly roster at 11.50pm. These vehicles are robust looking 4 wheel drive vehicles that are obviously designed for the hazardous conditions in which they operate, ie, plenty of steel protection but not much comfort. The parties have conveniently agreed that this journey can be broken up into three phases. [10] It is appropriate that I provide a brief description of the three phases. I note that Mr Clough is only relying on Phase 3 of the journey as the source of the valid reason for Mr Cheetham’s termination. Phase 1 – Mr Cheetham was driving away (outbye) from the coalface in his SMV. As he approached a tag point he came across an incoming (inbye) SMV driven by Mr Brown. Mr Brown reversed his SMV into the side road of the intersection, known as 19 cut through, to allow Mr Cheetham’s SMV to pass. The allegation for which Mr Cheetham was dismissed was that he deliberately rammed Mr Brown’s SMV during this process thereby placing the employees in Mr Brown’s SMV at risk of being injured. Phase 2 – Whilst Mr Brown was reversing into the intersection, a third SMV, driven by Mr Ralphs, entered the intersection on Mr Cheetham’s left, turned left and proceeded to travel outbye towards Centenary Loop. This SMV contained another crew that had also concluded their shift. It is alleged that Mr Cheetham tailgated Mr Ralphs’ SMV for the 800 metre outward journey, repeatedly activating the horn on his vehicle in an unnecessary manner. A passenger in the back of Mr Ralphs’ vehicle, Mr Rae, repeatedly waved his arms and yelled at Mr Cheetham to back off. Mr Rae was of this view that Mr Cheetham’s SMV was too close. Phase 3 – The miners all alight their vehicles at Centenary Loop and change to a different mode of transport for the next part of their journey back to the surface. It is alleged that after Mr Rae got out of the back of his SMV, Mr Cheetham deliberately, recklessly and abruptly stopped his SMV very close to Mr Rae, causing Mr Rae to be either surprised or startled at the proximity of the SMV to himself. It is not in dispute that Centenary Loop is a wet area with water and diesel fuel prevalent on the ground. Helensburgh Coal claims that Mr Cheetham put Mr Rae at risk of serious injury or death as a result of his actions at Centenary Loop. Evidence [11] Mr Cheetham denied that he acted in a reckless or unsafe manner whilst driving on 4 February 2016. Mr Cheetham accepted that he may have been driving too close to Mr Ralphs’ SMV (Phase 2) at one stage but that when he saw Mr Rae motion for him to back off then he immediately decelerated and extended the gap between his SMV and the one being driven by Mr Ralphs. [12] Mr Cheetham testified that he was never closer than 10 metres to the back of Mr Ralphs’ SMV. [13] Mr Cheetham agreed with the proposition that an employee who has a reckless or deliberate disregard for safety does not take their safety obligations seriously. [14] Mr Cheetham denied that he tailgated Mr Ralphs’ SMV, denied that he used the horn of his vehicle unnecessarily, denied that he travelled too fast in Centenary Loop, denied that he pulled up suddenly in Centenary Loop, denied that he narrowly missed Mr Rae, denied that Mr Sedgwick confronted him immediately after the incident at Centenary Loop and denied that he simply laughed Mr Sedgwick off. [15] In response to a question from me, Mr Cheetham denied that he was acting in a frivolous manner. “PN605 So you're coming off a night shift?---Afternoon shift, yes. PN606 Did I read that it was the end of the roster?---It was the last day of the week, yes. PN607 So everyone is keen to get out?---Yes. PN608 Wouldn't it be normal practice for a bit of frivolity on the way out?---Yes, it would probably be a common practice, yes. PN609 You're not - - - ?---I wouldn't say it was - - - PN610 You're not on the open road, you're in a - - - ?---Underground coal mine. PN611 - - - enclosed road-like environment?---Mm-mm. PN612 You finish your productive function for your roster?---Mm-mm. PN613 Everyone is keen to get out. Wouldn't it be fairly normal to, you know, bip the car in front, "Come on, hurry up, you bludgers. Come on, we want to get out of here. We want to go and have a drink", or whatever it might be?---I've seen that happen before. And it, you know, it does happen, but that wasn't my - of the night that it happened.” 1 “PN617 And there was no such frivolity or joking or whatever along the way, this was you just driving - - - ?---Just wanting to get out, yes. PN618 - - - in compliance with the Peabody rules at the end of your swing or the end of your shift, going home, driving in a safe manner?---That's right.” 2 [16] Mr Cheetham stated that he did not talk to Mr Sedgwick as a result of a few verbal “run-ins” in the past. Mr Cheetham claimed that Mr Sedgwick has a vendetta against him. Mr Cheetham accused Mr Sedgwick of making up a story in relation to any confrontation on 4 February 2016 because he had no conversation with him that evening. [17] Mr Cheetham claimed that he brought his SMV to a normal stop approximately 2-3 meters behind the SMV of Mr Ralphs. [18] Mr Cheetham could not recall saying to Mr Rae when they were walking to the Diesel Main Car (DMC) that “your eyes were as wide as dinner plates." 3 He agreed with Mr Forno that there would be no need for him to make that comment because there was nothing untoward about the way that he drove the SMV. 4 [19] Mr Cheetham advised that he had spoken to Mr Rae in preparation for the hearing and claims that Mr Rae said to him; “PN751 …He wouldn’t have jumped out of the bus if he felt his life was in risk” 5 [20] Relevantly, Mr Cheetham agreed that if the accusation that he had driven inappropriately in Centenary Loop and had almost hit Mr Rae (Phase 3) had been put to him during the disciplinary process, then he would have denied that accusation. [21] Finally, Mr Cheetham agreed that he was not sorry or remorseful at all for what transpired on that evening because he had done nothing wrong. [22] Mr Davey is the Lodge President for the CFMEU at Helensburgh Coal. [23] Mr Davey agreed that Occupational Health and Safety is the number one priority for the CFMEU and every employee at the Mine. [24] Mr Davey acknowledged that he did not witness any of the incidents that occurred on 4 February 2016. [25] Mr Davey agreed that if Mr Cheetham behaved in a manner as described by Mr Howarth and Mr Sedgwick then it would be a serious matter. [26] Mr Davey, in response to a question from me, advised that the SMV’s are fitted with drum brakes, that the SMV’s don’t skid, nor do they stop like vehicles with disk brakes. He stated that it was just a matter of “pulling the machine up.” 6 [27] Mr Davey also advised me that he thought that a ten metre gap between SMV’s whilst travelling would be regarded as being close and that three to five metres would be an appropriate distance to stop behind an SMV if there were people getting out of the front vehicle. [28] Mr Rae only appeared as a witness in these proceedings based on an “Order to Attend” from the Commission. [29] Mr Rae’s evidence was spasmodic and contradictory. [30] In a response to a question from Mr Walkaden in relation to a conversation that he had with Mr Walkaden the week before Mr Rae said; “PN1012 Do you remember saying to me that if you thought there was a danger or that Peter was to close, that you would have got out of the SMV?---That's correct, yes, I wouldn't have stepped out.” 7 [31] Yet, in response to a series of questions from Mr Forno, Mr Rae said that when he got out of the SMV, Mr Cheetham was still 15 or 20 metres away from him 8 . Mr Rae clarified this evidence in response to a question from me when he said that the Cheetham’s bus (SMV) was 10 – 15 metres away when he stepped down from the bus. [32] Also, in relation to his own safety, Mr Rae said; “PN1036 Mr Rae, do you agree with the allegation that the manner in which Peter stopped the bus at the Centenary Loop area was that he stopped the bus abruptly and that his actions, that he may have seriously injured or killed you?---Like I said, I said I was surprised at the vehicle coming towards me and stopping, but I didn't feel that I was going to be killed there. PN 1037 THE COMMISSIONER: You didn't feel - - -?---That's my feeling is there. PN1038 You didn't feel like you were being threatened. Is that what you said?---At the time I was more surprised by it by anything. I didn't - I didn't try and jump out of the way because I thought I was going to die, I just - that's how I felt. I don't know - that's right or not.” 9 [33] But then said; “PN1057 And can I - just to be clear about this, do you say that the manner in which Peter stopped the bus in the Centenary Loop area may have resulted in a fatality to you?---I think I said there could be.” 10 “PN1064 Can you explain what you mean by that. Why were you surprised?---I guess we're normally last out of the pit, too. We don't have buses following us. I guess it was a totally different situation that we were in, and I guess I was surprised that - yes, like, I guess was surprised that the bus did come as close as it did, but, you know, I wasn't” 11 “PN1175 And isn't the reality that you're standing there as a pedestrian; and we've seen the photographs of the Driftrunner, it's a big piece of machinery with lots of metal, and it has pulled up a couple of metres away from you; that you were surprised, can I suggest to you, because you thought that this thing - - - ?---Yes, definitely there's potential, yes. There was, yes. That's probably why I was surprised. PN1176 The potential for what?---Well, there is potential, yes, to - if you - if I had have been hit, you know, like, that's right, there is potential there.” 12 [34] Mr Rae could not recall talking to Mr Sedgwick the following week about the incident; “PN1256 Mr Rae, you told Martin Sedgwick sometime after the incident that you thought Peter Cheetham's bus was going to hit you. Do you remember saying - - -?---To Martin Sedgwick? I don't remember. Like, he's not even in my panel to start with, but no. PN1257 And I would also suggest to you that you told Martin Sedgwick that when you stepped out the back of Mr Ralphs' bus, that you thought about jumping out of the way or jumping onto the bonnet in that split second reaction?---I don't remember. I'm not sure. I don't think - I don't think I can, but I may of.” 13 [35] Mr Rae thought that somebody had yelled out something to him after he began walking around the vehicle but had no recollection of what he had heard. Mr Forno asked him whether Mr Cheetham had said to him words along the lines of; “PN1293 Your eyes were as wide as dinner plates” [36] Relevantly, Mr Rae immediately recalled the phrase; “PN1293 You told Don Howarth that Peter Cheetham had said to you in the bath house or immediately after the incident that, "Your eyes were as wide as dinner plates" back when - - - ?---That was the comment. PN1294 Sorry, I will just finish the question, and then you can respond - back when his vehicle came to a stop and you were standing there as a pedestrian?---That was the comment. That was the comment in question. That's - now, yes, that was what was said after - after Peter alighted from the bus, that was the comment he said to me. PN1295 Just so we're all clear on this, Peter Cheetham said to you at the time of the incident when you were standing still at Centenary Loop? Yes. PN1296 That your eyes were as wide as dinner plates? Yes. PN1297 Can you just tell us more about what you remember about? That was the conversation. That was - now that - yes, he hopped out and then said that to me. We walked off, and that was all that was said about it. That was the part that was said.” 14 [37] Mr Rae does not recall having a one on one conversation with Mr Howarth about the incident but acknowledged that the incident was discussed in the crib room the following week when Mr Howarth was present. [38] Mr Rae’s testimony was more forthright in relation to Phase 2 of the journey. Mr Rae recalled that Mr Cheetham’s SMV was travelling approximately 5 metres away from the back of his vehicle. Mr Rae claimed that he used arm signals and yelled at Mr Cheetham to back off because he was concerned that if his vehicle had to stop suddenly then Mr Cheetham’s vehicle would not be able to stop in time and that he could get hurt if there was a collision. [39] During the trip in Phase 2, Mr Rae recalled that Mr Howarth asked who was driving the vehicle behind their SMV. Mr Rae could not see the face of the driver at that time because of the headlights shining in his eyes. [40] Mr Rae was also confused as to whom he had spoken to in relation to his evidence; “PN 1407 Mr Rae, we know that you spoke with Mr Walkaden about the matter because he referred to that?---Yes, on the phone, that was all. I didn't - - - PN1408 And we know that you've spoken to Ms McMillan - - - ?---Ms McMillan, yes. PN1409 - - - who's sitting up here. Have you spoken to anybody else about this incident and the evidence that you would give in these proceedings?---In regards to - who do you mean? PN1410 I'm asking you, have you spoken to anybody else about the evidence that you will give in these proceedings?---Like a legal person? PN1411 Anybody. Have you spoken to anybody else about - - - ?---No. I spoke to - - - PN1412 - - - the evidence that you're giving. Sorry, just let me finish?---Yes. PN1413 The evidence that you're giving here today or that you will be giving. Have you spoken to anybody else?---I've probably spoken to people, yes. Like, yes, I don't know. PN1414 Did you speak to Mr Davey about your evidence?---Andy, no. I don't - have I? Andy - I had text messages to ask to give a statement to the union, which I had received- my brother-in-law is a lawyer, and they told me just to please don't talk to anyone, and that was the advice I was given, and I didn't. Even the statement regarding - like, with the company, too. Like, we were led by the union there. I was - you know, I asked the union their advice for what we do, and they said, "Just go in there and tell the truth." That was what I was told to do. But I haven't, no. I haven't spoken to any other legal, only by brother-in-law, who told me, yes, just don't - he told me, "Don't speak to anyone", and, yes, I didn't. That was all. I had a conversation with Adam on the phone on Friday, and then I haven't spoken to a soul until I came here today.” 15 [41] Mr Rae did not confirm that he had spoken to Mr Cheetham. [42] Mr Clough was, at the time, the Manager at Helensburgh Coal who made the decision to dismiss Mr Cheetham on 26 February 2016. [43] Mr Clough accepted that he did not have the evidence to sustain the allegations that were contained in Mr Cheetham’s show cause and termination letters but did not accept that he had made a mistake in dismissing Mr Cheetham, based on the additional information that had been supplied to him since Mr Cheetham’s dismissal. [44] Importantly, Mr Clough acknowledged that the investigation that was conducted by Helensburgh Coal could have been conducted more thoroughly. [45] Mr Clough testified that when he made the decision to terminate Mr Cheetham, he was unaware of the incident involving Mr Rae at Centenary Loop (Phase 3). Mr Clough claimed that he only became aware of this incident after he had read the witness statements of Mr Howarth and Mr Sedgwick on 19 May 2016. [46] Importantly, in response to a number of questions from me, Mr Clough made the following comments: “PN1573 Okay, so as you sit here today, can you tell me what are you relying on in termination of Mr Cheetham?---I would be relying on, I am relying on the evidence that has come out subsequent to the original termination letter. After reading the statements from Howarth and Sedgwick and subsequent information, I agree that there wasn't sufficient evidence in the first termination letter to support the decision. I'm sitting here now, saying that that's correct, there wasn't sufficient evidence to support that decision, however, there is subsequent evidence that has come out which I believe is actually of an even more serious nature. PN1574 That subsequent evidence is what transpired at centenary loop?---That's correct. PN1575 So that's what you're relying on?---That's what we're relying on.” 16 “PN1814 If I can just get you to reconfirm your evidence from yesterday that your new position in relation to the termination of Mr Cheetham is solely that issue?---That's correct.” 17 [47] Mr Clough highlighted his general focus on the need for a safe workplace; “PN1874 At the time of considering Mr Cheetham's show cause and the statements of Mr Brown and Mr Bunker that we have discussed, do you say that you still had an open mind about whether to terminate Mr Cheetham or not? Yes, yes, and certainly what comes out of the Commission, that - yes, I'm happy for the process and, look, if I may, my concern in this is actually the concern for the coal mine workers. In my previous role, I was actually the Chief Inspector of Mines for Queensland and I have had the unfortunate position of having to meet with next of kin of people that have been killed, and that is why I have taken a very strong position on this. I do want to table that. I don't mean any - I don't know Mr Cheetham, I mean no harm to Mr Cheetham, but my concern through this whole thing is the safety of the people underground and whether or not we are operating at an acceptable level of risk. Excuse me for saying that, but I had to say it.” 18 (my emphasis) [48] Mr Clough testified that, in his view, Mr Cheetham had breached the Peabody Energy Safety Rules and the Transport Rules; “ Peabody Energy Australia Policy for Commitment to Safety 3 Requirements 3.1 Commitment to Safety The safety and health of our most important asset, our personnel, is a core value that is integrated into all areas of our business. Peabody’s vision is to operate safe workplaces that are incident free… The Company cannot, and will not, tolerate unsafe work practices and will take appropriate measures to address unsafe acts. All personnel must comply with this policy… Management and all personnel have the full authority to correct any unsafe condition or practice…” 19 “ Peabody’s vision is to operate safe workplaces that are incident free. The following governing principles for safety and health apply to everyone at a Peabody workplace: The safety and health of our most important asset, our personnel, is a core value that is integrated into all areas of our business; All workplace incidents can be eliminated, including injuries, occupational illnesses, property damage and near misses; Management has the overall accountability for the safety and health of personnel; Personnel are responsible for their own safety and health, as well as promoting the safety of their co-workers; All personnel must comply with established safety rules and regulations; Open, honest and effective safety communication is essential; All safety and health efforts must be sustainable and will be continuously reviewed and improved; and The workplace is anywhere a Peabody employee or contracted person is on the job for Peabody.” 20 “ Underground Transport Management Plan 3.2 Conditions of Use of Transport 3.2.1 General Precautions Personnel operating transport shall do so in accordance with Transport Rules, signs and Traffic Control Lights. No person is to exit or enter a moving vehicle. When transports approach blind corners or intersections, the horn is to be sounded and the vehicle slowed. Transports will give way to Pedestrians. A Pedestrian will where possible retreat off the road into the nearest Cut Through and allow the Transport to proceed unhindered, however if this is not possible, the Transport will stop at the no-go zone limit and allow the person to walk past before proceeding. All drivers are to stop their vehicles if Pedestrians enter into a potentially hazardous location in relation to the transport. Rail vehicles are to slow down when travelling thru sets of points which are high risk areas. No person shall get onto or off a moving Locomotive or vehicle shall not exceed that which will allow the machine to be halted in a controlled stop in an emergency. Transport shall not be used unless: - It is fitted with a fire Extinguisher, having a minimum rating of 80B:E, ready for use; - It is fitted with an Audible Warning Device, in working condition; - It has lights and the lights are used when it is moving and; - It is free from any defect that may affect its safe operation.” 21 [49] Relevantly, Mr Clough acknowledged that Mr Cheetham has not been provided with the requisite procedural fairness as required by the Act in relation to the incident at Centenary Loop; “PN2150 … I understand I haven't given natural justice to allow him to respond to the allegations. I understand that.” 22 [50] Finally, Mr Clough gave evidence in relation to his extensive experience in the coal industry and the way in which employees prefer to deal with issues internally. “PN2206 … I would actually like to answer that in general terms for the industry given the number of mines I have worked at. Generally a worker will be very reluctant to bring an issue to management that may potentially get a workmate into trouble. They have to work with these people every day. My experience throughout my career is that's often the case and sometimes a worker - it has even been said to me they would prefer to sort their differences out without management being involved.” 23 [51] Mr Howarth has been a Deputy for a few years. A Deputy is a statutory Official who works in the underground crew and is required to supervise and inspect the work areas of the mine. [52] Mr Howarth was travelling in the SMV driven by Mr Ralphs on 4 February 2016. He was travelling in the back section of the vehicle with Mr Rae, but was sitting at the very front of the back section. During the drive to Centenary Loop (Phase 2), Mr Howarth asked Mr Rae who was driving the vehicle behind them. [53] Mr Howarth was of the view that the Peabody Energy Transport Rules 24 required a minimum distance of 50 metres to be kept between rubber tyre vehicles. Under cross examination, Mr Howarth accepted that the Rules were silent on this issue. [54] Mr Howarth testified that he was concerned about the way that Mr Cheetham had driven his SMV during Phase 1 and Phase 2. He claims that he stood up immediately after they had completed their journey so that he could identify the driver of the SMV that was following them. [55] Mr Howarth reported the incident (Phase 1 and Phase 2) the following day (Friday, 5 February 2016). Mr Howarth made a diary note on the morning of Monday 8 February 2016 after he was requested to attend a meeting in relation to his report before the start of his shift later that day. Mr Howarth’s diary note did not contain any mention of the incident with Mr Rae at Centenary Loop (Phase 3). [56] Mr Howarth was of the view that Mr Cheetham brought his SMV to an abrupt stop approximately one metre behind the SMV driven by Mr Ralphs. However, Mr Howarth accepted that he would have had an impeded view of that incident. [57] Mr Howarth claimed that Mr Sedgwick had advised him to report the “incident” a number of times in the following stages of their trip to the surface and in the shower. [58] Mr Howarth admitted that the commentary in his witness statement 25 on phase 3 was based on what Mr Rae had said at a later date, not his eyewitness account. Mr Howarth acknowledged that this conversation was a group conversation in the crib room. Relevantly, this is where Mr Howarth heard about the alleged comment from Mr Cheetham to Mr Rae that “your eyes were as wide as dinner plates.” [59] Mr Sedgwick commenced work as an Operator at the Helensburgh Coal Metropolitan Mine in mid 2014. Prior to that Mr Sedgwick worked for Energy Australia (now Ausgrid) as a Cable Jointer and as a Senior Rescuer in confined space rescue. From my past employment history, having worked both in and with the electricity distribution industry for 30 years’ I know that both of these roles require a very high awareness and focus on safety. [60] Mr Sedgwick acknowledged that he had a falling out with Mr Cheetham in relation to Mr Cheetham’s perceived lack of attention to safety. “PN3663 ---Peter and I have had a few conversations over the years about his reckless behaviour with machinery.” 26 “PN3694 It's not your role to chit Peter for his behaviour, is it?---Coalminers pretty much try and pull each other into line before it goes further, yes.” 27 [61] Mr Sedgwick was a passenger in the back of the SMV driven by Mr Cheetham. He claims that the manner in which Mr Cheetham drove during Phase 1 and Phase 2 of the trip was the subject of discussion and astonishment amongst his colleagues in the back of the SMV that night. [62] Mr Sedgwick provided a remarkable observation in relation to Mr Cheetham; “PN3706 You would agree with me though that you have a pretty negative view of Mr Cheetham?---I have a negative view of his behaviour to safety, yes. PN3707 You consider him to be unsafe, don't you?---In my 25 years in the workforce, he is probably the most dangerous bloke I've worked with, yes.” 28 [63] Again, Mr Sedgwick stated; “PN3719 The opinion you expressed a moment ago that Mr Cheetham is the most dangerous person you have worked with in 25 years - do you recall that answer?---I recall it, yes. PN3720 That is your honest belief?---Yes, he's reckless. PN3721 Okay?---He thinks it's funny, but it's not. PN3722 Would you agree that your negative opinion of Mr Cheetham has clouded your view as to his conduct?---No. The reason why I'm sitting here is because I was subpoenaed to come here to give evidence.” 29 [64] Further, Mr Sedgwick said; “Well, you said that he was the most dangerous person you had worked with in 25 years?---That's why Peter and I have had a few conversations underground about his behaviour on different machinery. It puts us in a situation and after this incident on 4 February, it was another incident that put us all in danger and I thought we had hit a bloke. That was enough. It was the end of the line. You can only give a bloke so many chances.” 30 [65] Mr Sedgwick testified that he also thought that the transport rules required a 50 metre gap between travelling SMV’s and that, on this occasion, the gap between Mr Ralph’s SMV and Mr Cheetham’s SMV during Phase 2 was 5-10 metres. [66] Mr Sedgwick claimed that the SMV being driven by Mr Cheetham stopped too close to Mr Rae. In fact, Mr Sedgwick, who testified that he was watching out the front of the vehicle, actually thought that the SMV had hit Mr Rae. [67] In response to a question from me, Mr Sedgwick said; “PN4314 You say that Mr Cheetham pulled up too close to MG27, in paragraph 22. I don't recall you telling me how close you got. How close did - - -?---Within a couple of metres. PN4315 Two, three?---Between me and you, as far as I could see and the distance I could make out. It was pretty close at speed. PN4316 So when you say "at speed", what do you mean by that?---Well, we weren't - we didn't pull up slowly and stop. We approached at speed and hit the anchors flat out. PN4317 So it was - - -?---A jolting braking. PN4318 - - - a jolting stop?---Yes. PN4319 But that could still be safe though, couldn't it?---Not in that area. That area is where we fill the diesel - machines up with diesel. There is a spillage of diesel that sits on the surface. There's a chance of slipping over and skidding. It's one of those areas that you really take it easy in the pit.” 31 “PN4326 You're not saying he has deliberately tried to run over Mr Rae or - - -?---No, I don't think Peter would deliberately try and run over anyone, but Peter does a lot of stupid things that could end up as in that situation again. It's reckless and enough is enough.” [68] Mr Sedgwick claims to have had a conversation with Mr Cheetham after he had gotten out of the SMV and they were walking to the next transport hub, the DMC; “24. I said to Peter 'that’s fucking stupid, I am sick of you being a dick head, you really could have hurt someone'. Peter then laughed at me which annoyed me even more. It annoyed me because he had a disregard for safety…” 32 [69] Mr Sedgwick also claims to have previously raised Mr Cheetham’s general safety performance with Mr Davey, the CFMEU Lodge President. [70] Mr Sedgwick acknowledged that he had discussed this incident with Mr Howarth on the night of 4 February 2016. [71] Mr Sedgwick testified that it was a regular practice for members of the crew to have lunch or a coffee at a local Helensburgh cafe every Thursday before starting work. The Thursday after the incident (which would have been 11 February 2016), Mr Sedgwick claimed the following conversation took place; “PN4360 …"Fuck, I thought we got ya." And he goes, "Yes, I shit myself. I didn't know if I should have jumped on the bonnet or not."” 33 [72] Mr Sedgwick also testified in relation to the investigation process. “PN4377 Were you there when Mr Howarth's notes were read out?---Yes - I don't think that the whole notes were read out. I think it was Mr Howarth's report of the incident and, "We'll be investigating", along those lines from what I can recall. PN4378 Do you recall any management representative ever talking about what occurred at the loop?---No. PN4379 Did you take that opportunity to raise with anybody the fact that there was another incident that occurred at the loop?---No, I didn't know what they knew and no-one was going to ask me anything and it's not the type of environment that you - I don't know how you say it. You try and keep everything in-house and sort it out and pull their behaviours in. I've been called - it's written all over the pit, "I'm a dobber", and stuff like that. So be it. (Indistinct) – (but my recollection is that Mr Sedgwick said “I can’t”) be a coward and watch Peter kill someone", and then try and tell their missus and kids I had a chance of stopping him, you know. And that's what frustrates me because he's got three kids himself and it's just, you know, it's reckless, it's stupid.” 34 Statutory Provisions [73] The relevant sections of the Fair Work Act, 2009 (the Act) for an unfair dismissal proceedings include; 381 Object of this Part (1) The object of this Part is: (a) to establish a framework for dealing with unfair dismissal that balances: (i) the needs of business (including small business); and (ii) the needs of employees; and (b) to establish procedures for dealing with unfair dismissal that: (i) are quick, flexible and informal; and (ii) address the needs of employers and employees; and (c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement (2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned. 382 When a person is protected from unfair dismissal A person is protected from unfair dismissal at a time if, at that time: (a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and (b) one or more of the following apply: (i) a modern award covers the person; (ii) an enterprise agreement applies to the person in relation to the employment; (iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. 385 What is an unfair dismissal A person has been unfairly dismissed if FWA is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that FWA considers relevant. FAIR WORK REGULATIONS 2009 - REG 1.07 Meaning of serious misconduct (1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning. (2) For subregulation (1), conduct that is serious misconduct includes both of the following: (a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the employer's business. Jurisprudence [74] In Edwards v Giudice 35 , in a different legislative framework, Moore J made the following observation in relation to the operation of s.170CG(3) of the Workplace Relation Act; “6…The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed. 7…The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination…” 36 (My emphasis) [75] In Byrne v Australian Airlines Limited 37 , the High Court endorsed the decision of Doussa J in Lane v Arrowcrest Group Pty Ltd (1990) ; 38 “In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred .” 39 (my emphasis) [76] Whilst this case is predominantly relied upon as support for an employer to rely on facts after the termination of employment, it also highlights the requirement for an employer to make an appropriate level of enquiry in relation to the facts of a case before an employee is terminated. [77] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne v Australian Airlines 40 sets the parameters for these types of determinations; “128. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ... Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...” [78] The Full Bench of the AIRC in Australia Meat Holdings Pty Ltd cited this decision in definitive terms; “The above extract is authority for the proposition that a termination of employment may be: unjust, because the employee was not guilty of the misconduct on which the employer acted; unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.” [79] The parties referred me to the principle of “on the balance of probabilities.” This phrase emanates from the High Court decision in Briginshaw v Briginshaw, 41 where Dixon J said; “The tribunal must feel an actual persuasion of its occurrence or existence before it can be found… Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved… In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” [80] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, 42 the High Court held; “2…The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove… authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found.” [81] In Brinks Australia Pty Ltd v Transport Workers’ Union of Australia, 43 a Full Bench of the AIRC said; “[7] It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes…” Consideration [82] I am obligated to consider each of the criteria in section 387 of the Act in reaching my conclusion as to whether Mr Cheetham’s termination was harsh, unjust or unreasonable. (a) Valid Reason [83] Helensburgh Coal are relying on information that was obtained some three months after Mr Cheetham’s termination as the valid reason for his dismissal. The CFMEU agreed that Helensburgh Coal could rely on the High Court principle in Shepherd v Felt and Textiles of Australia Ltd, 44 ie, Helensburgh Coal could rely on information discovered after Mr Cheetham’s termination in order to substantiate the existence of a valid reason. [84] It is well established that for a reason for an employee’s dismissal to be valid it must sound, defensible or well founded. A reason which is capricious, forceful, spiteful or prejudicial cannot be a valid reason. [85] This definition of ‘valid reason’ is drawn from the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd; 45 “In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.” [86] In Travis Northey v Badken Resources Pty Ltd 46 , Sams DP held: “[185]…that a serious breach of safety policies and procedures, whether deliberate or careless, will invariably result in a finding that a valid reason exists for the employees dismissal…” [87] In IGA Distribution (Vic) Pty Ltd v Nguyen, 47 the Full Bench held: “[13] Although the focus on the deliberateness of the conduct was understandable given the evidence as to the reasons for the dismissal, it is clear that the Commissioner considered a range of other factors. These quite properly included consideration of matters that the Commissioner found frustrated the Applicant, the assertion that there was oil on the warehouse floor, the disputed blood alcohol test and the health and safety issues. The Commissioner’s findings with respect to these matters were open to her on the evidence. However, we think that the Commissioner fell into error in that her conclusion that there was no valid reason to terminate the Applicant’s employment was fundamentally inconsistent with her acknowledgement of the recognised dangers associated with forklifts and this incident in particular. The recognition of those dangers, together with the finding that the collision was caused by the recklessness and carelessness of the Applicant, necessitated a finding that there was a valid reason for dismissal. The issue of whether the Applicant was improperly accused of deliberately colliding with the other forklift is a matter to be considered in the context whether the termination of his employment was fair. In this respect we think the Commissioner confused her assessment of whether there was a valid reason with the overall assessment as to fairness. [14] The characterisation of the Applicant’s conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. 48 The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable.” [88] I was encouraged by Mr Walkaden to accept Mr Rae’s evidence in its entirety. I find that Mr Cheetham said to Mr Rae “your eyes were as wide as dinner plates” immediately after they had disembarked from their vehicles at Centenary Loop. I accept Mr Sedgwick’s evidence that Mr Cheetham came to an abrupt stop very close to Mr Rae. I find that Mr Cheetham brought his SMV to a sudden halt approximately 2 metres from Mr Rae. I find that this incident could have resulted in a serious injury to Mr Rae. [89] I do not accept the submission of Mr Walkaden that Mr Cheetham’s comment could have been as a result of Mr Cheetham driving too close to the back of Mr Rae’s SMV. The trip from the intersection to the turnoff for Centenary Loop is approximately 800 metres. Whilst Mr Rae acknowledged that he was annoyed that the vehicle was so close, he gave no evidence that he was surprised or shocked at this behaviour. Mr Rae’s evidence was that he used his hands and yelled out to the driver of the SMV to “back off” or “fuck off”. Mr Cheetham’s evidence was that he immediately decelerated and created a bigger gap between the vehicles. [90] Based on all of the evidence I am satisfied that Mr Cheetham drove his SMV in a manner which could be described as being careless and reckless and caused an imminent safety risk to Mr Rae. There would be no other reason for Mr Rae to invent the “your eyes were as wide as dinner plates” statement. I accept Mr Howarth’s evidence that Mr Rae repeated these words when discussing the incident in the crib room the following week. [91] I have taken this into account. (b) Notified of reason [92] Mr Clough accepted that Mr Cheetham was not notified of the reason for his dismissal on the basis that the reason changed on 19 May 2016. Whilst the CFMEU accepted the capacity of Helensburgh Coal to vary the reason and rely on information obtained after the dismissal had taken place, the Union argued that Helensburgh Coal still denied Mr Cheetham with this basic pillar of natural justice. [93] In Crozier v Palazzo Corporation 49 the Full Bench said; “As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. [The legislation] would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” [94] I note that the Full Bench stated that each case is to be determined on its own facts. I have taken this into account. (c) Opportunity to Respond [95] Moore J, whilst sitting in the Industrial Relations Court of Australia said in Wadey v YMCA Canberra 50 ; “The opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” 51 [96] In Anthony Farquharson v Qantas Airways Limited 52 the Full Bench of the AIRC held that; “[41] The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.” [97] It is not contested that Mr Cheetham was not given an opportunity to respond to the allegation in relation to his conduct during Phase 3 of the journey. [98] I do not agree with the submission of Mr Forno that Mr Cheetham was given his opportunity to respond in his Statement in Reply 53 and during his oral evidence. Section 387(c) concerns the conduct of the employer before the decision to terminate an employee’s employment has occurred. In my opinion, there are limited circumstances when an employee would not be entitled to their statutory provided “Fair Go” to respond to an allegation before an employer makes the decision to terminate an employee. [99] This case is not a scenario where the employer has simply dismissed the employee without a process. [100] Helensburgh Coal conducted an investigation, provided Mr Cheetham with a show cause letter and after careful deliberation by Mr Clough, decided to terminate Mr Cheetham. Mr Clough did not consider the circumstance or consequences of Phase 3 because he was not aware of them at the time of his determination. In part, this ignorance was due to the employee’s desire and strategy to deal with these type of matters in-house. I accept Mr Clough’s statement based on his wide experience throughout the industry, for this type of behaviour. I understand the reasoning for this type of “team” behaviour being established and maintained in a dangerous work environment. However, this behaviour, in part, allows for the decision in Lane v Arrowcrest to be distinguished insofar as the inadequate investigation. [101] I am conscious of the evidence of Mr Cheetham in relation to Phase 3. Put bluntly, Mr Cheetham denies that Phase 3 ever occurred. In response to a question from Mr Forno, Mr Cheetham basically said that if Helensburgh Coal had enquired into Phase 3, as part of their initial investigation, then he would have simply denied it, because it did not happen. [102] I have taken all of these issues into account. (d) Refusal of support person [103] Mr Cheetham was not refused the opportunity to have a support person present during the disciplinary process. (e) Unsatisfactory performance [104] Mr Cheetham’s termination was not due to his unsatisfactory performance. This issue is not relevant to these proceedings. (f) Size of employer [105] Helensburgh Coal is part of Peabody Energy Australia, which is a large mining company and has access to extensive financial and legal resources. I have taken this into account. (g) Human resource expertise [106] Helensburgh Coal, or Peabody, has a dedicated HR team and access to a very competent law firm. I am surprised at the deficient investigation of the incident on 4 February 2016. Mr Clough was being very charitable to his colleagues when he described the investigation as being one that “could have been done more thoroughly.” I have taken this into account. (h) Any other matter [107] I have given no weight to Mr Cheetham’s previous warnings that were given in 2009 and April 2014. The provisions of the Helensburgh Coal Enterprise Agreement have extinguished those warnings due to the passing of time. It would not be appropriate or fair for me to override the provisions of the Agreement. [108] I was impressed by the sound and forthright evidence that was provided by the CFMEU Lodge President, Mr Davey. I accept that safety is the number one priority of the CFMEU. Mr Davey gave evidence without fear or favour. I have taken into account Mr Davey’s advice that an appropriate distance to stop an SMV from another SMV would be 3 – 5 metres. [109] I have taken into account and accept the evidence of Mr Clough that Helensburgh Coal is only relying on the situation in relation to Phase 3 to provide the valid reason for Mr Cheetham’s termination. [110] I have taken into account that the only way that Mr Howarth could have heard the comment in relation to “your eyes were as wide as dinner plates” was from a group discussion in the crib room in the week after the incident on 4 February 2016. [111] I have taken into account Mr Sedgwick’s recollection of a discussion that he had with Mr Rae on 11 February 2016 where Mr Rae confided that he “almost shat himself.” [112] I have taken into account the inconsistency of the evidence between Mr Rae and Mr Cheetham. For example, Mr Cheetham testified that he had spoken to Mr Rae in relation to his evidence. Mr Rae did not confirm that this conversation had ever occurred. Also, Mr Cheetham claimed that his SMV got no closer than 10 metres from the back of Mr Ralphs’ SMV but Mr Rae said that it was as close as 5 metres. [113] I have taken into account that Mr Cheetham did not take up my invitation to say that he was just indulging in a “bit of fun” after a long week of work. [114] I have taken into account Mr Cheetham’s claim that he did absolutely nothing wrong on the evening of 4 February 2016, except when he initially drove too close to Mr Ralphs’ SMV. [115] I have taken into account Mr Cheetham’s evidence that had the accusation in relation to Phase 3 been put to him during the investigation then he would have denied the allegation. [116] I have taken into account the employment history and safety consciousness of Mr Sedgwick. I accept his evidence that he has previously spoken to Mr Davey, in general terms, in relation to Mr Cheetham’s capacity to work safely. [117] I have taken into account the employees’ preference to deal with matters such as these “in house” and a reluctance to raise these types of issues with management. [118] I have taken into account the definition of serious misconduct in the Act and the submissions from Helensburgh Coal in relation to Regulation 1.07(2)(a) and (b). [119] I have taken into account the evidence of Mr Rae that he thought that he may have been over-reacting to the incident at Centenary Loop because no other employee made mention of the incident immediately after it had occurred. [120] I have taken into account Mr Cheetham’s personal circumstances and the impact of the dismissal on his financial position. [121] I have taken into account the proposition put forward by Helensburgh Coal that Mr Cheetham’s conduct was serious misconduct and that Helensburgh Coal has real concerns about Mr Cheetham’s capacity to follow the necessary and compulsory safety rules of the Mine. In Owen Sharp v BCS Infrastructure Support Pty Limited 54 , a Full Bench of the FWC said; “[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd 55 Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” 56 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.18 57 “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd 58 Buchanan J said: “[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii) ; Workers Compensation Act 1987 (NSW) s 14(2). ” [122] I have taken into account the submission from Helensburgh Coal that it no longer has trust and confidence in Mr Cheetham. [123] I have taken into account the confident and forthright evidence of Mr Sedgwick. [124] I have taken into account the evidence of Mr Clough. Whilst it was obviously embarrassing for Mr Clough that the show cause and termination letters could not be sustained due to a lack of evidence, I appreciate his honesty in dealing with this deficiency. I was impressed by Mr Clough’s unsurprising expertise in safety and his even handed and complimentary approach in answering questions in relation to the conduct of the CFMEU. [125] I have taken into account the submission that Mr Forno himself described as being “bold”, ie, that it would be unfair to the employer to find that Mr Cheetham’s termination was harsh, unjust or unreasonable based on a technical breach of the procedural fairness provisions of the Act. Determination [126] I have taken into account all of the submissions and evidence that have been submitted by the parties. [127] There can be no reason or excuse for any employee to act in a deliberate manner which could be identified as being careless or reckless. An underground mine has so many inherent dangers that the employer and every employee should feel assured that these dangers will not be amplified due to the reckless actions of a single employee. I do not agree that Mr Sedgwick fabricated his evidence as a result of a vendetta against Mr Cheetham. I accept Mr Sedgwick’s evidence that Mr Cheetham’s conduct at Centenary Loop was reckless and unsafe. [128] I provided Mr Cheetham with an opportunity to characterise this whole incident as a bit of “horseplay” on the basis that it was the end of the shift and the end of his crew’s roster. Mr Cheetham, whilst admitting that he had witnessed this type of behaviour in the past, denied that this was the case in this circumstance. Mr Cheetham’s denial was unfortunate. A less stringent denial, coupled with an appropriate level of remorse and the provision of future guarantees in relation to his conduct may have resulted in an alternate outcome. [129] I agree with the views of Mr Clough that the behaviour of Mr Cheetham at Centenary Loop was far more serious than his conduct which occurred during Phase 1 and Phase 2. I find that Helensburgh Coal has satisfied the Briggenshaw test. I am satisfied and find that Mr Cheetham breached the provisions of the Peabody Safety Rules and Transport Rules when he recklessly and carelessly brought his SMV to a sudden and jolting stop in close proximity to Mr Rae. [130] I find that the conduct of Mr Cheetham as being serious misconduct in accordance with Regulation 1.07 of the Act. I find that Mr Cheetham’s conduct at Centenary Loop (Phase 3), ie, coming to an abrupt halt in front of Mr Rae created an imminent risk to the health and safety of Mr Rae. I agree with the comments of Sams DP in Northey. 59 [131] I find that Mr Cheetham’s conduct constitutes a valid reason for his termination. If the SMV that he was driving had skidded or slid on the wet surface then Mr Rae may have been seriously injured or even killed. [132] The investigation undertaken by Helensburgh Coal was incompetent and inadequate. I was embarrassed for Mr Clough, a recently appointed Vice President of Peabody, that he had to endure the probing cross-examination of Mr Walkaden on this issue. If not for the evidence of Mr Howarth and Mr Sedgwick, Helensburgh Coal would have been left to present a severely deficient defence in relation to the termination of Mr Cheeetham based on what occurred at Phase 1 of the journey. [133] I have previously found that Helensburgh Coal had a valid reason to terminate Mr Cheetham. I have long held the view that a lack of procedural fairness, as admitted by Helensburgh Coal in this matter, would invariably lead to a decision that the termination was harsh and unfair. However, when it comes to a fundamental breach of safety, where an employee has wilfully, recklessly and carelessly placed the safety of another employee at risk, I am of the opinion that such a scenario provides the necessary circumstance to distinguish the decision in Crozier 60 . I agree with Mr Clough that the principal focus must be on the “ongoing safety of the people underground.” The “horse has bolted” analogy mentioned in Crozier , applies equally to the scenario raised by Mr Sedgwick in relation to the possibility of a future accident that may have been caused by another example of Mr Cheetham’s reckless behaviour. [134] I find that Mr Cheetham did not suffer any detriment due to the lack of procedural fairness that was afforded to him during the disciplinary process. Mr Cheetham forthrightly stated that, if the Phase 3 accusations had been put to him during the investigation, he would have denied driving in a reckless and careless manner at Centenary Loop and that he would have denied that his actions almost resulted in him coming into contact with Mr Rae. [135] As a result, I find that Mr Cheetham’s termination was not harsh, unjust or unreasonable. [136] The application is dismissed. COMMISSIONER 1 PN605 – 613 – Transcript 7 June 2016 2 PN617-618 – Transcript 7 June 2016 3 PN722 – Transcript 7 June 2016 4 PN725 – Transcript 7 June 2016 5 PN751 - Transcript 7 June 2016 6 PN914 – Transcript 7 June 2016 7 PN1012 – Transcript 7 June 2016 8 PN1212-1213 – Transcript 7 June 2016 9 PN1036-1038 – Transcript 7 June 2016 10 PN1057 – Transcript 7 June 2016 11 PN1064 – Transcript 7 June 2016 12 PN1175 - PN1176 – Transcript 7 June 2016 13 PN1256 - 1257 – Transcript 7 June 2016 14 PN1293 – PN1297 – Transcript 7 June 2016 15 PN1407 – 1414 – Transcript 7 June 2016 16 PN1573 – Transcript 7 June 2016 17 PN1814 – Transcript 8 June 2016 18 PN1784 – Transcript 8 June 2016 19 Exhibit H2 – AC1 Peabody Energy Australia Policy for commitment to safety 20 Exhibit H2 – AC1 7.1 Appendix A – Peabody Energy Australia Safety Vision 21 Exhibit H2 – Peabody Energy Management Plan – Underground Transport 22 PN2150 – Transcript 8 June 2016 23 PN2206 – Transcript 8 June 2016 24 Exhibit H2 - AC1 25 Exhibit H4 26 PN3663 – Transcript 10 June 2016 27 PN3694 – Transcript 10 June 2016 28 PN3706-3707 Transcript 10 June 2016 29 PN3719 – 3722 Transcript 10 June 2016 30 PN3869 – Transcript 10 June 2016 31 PN4314 – 3419 Transcript 10 June 2016 32 Exhibit H5 – Witness Statement Mr Martin Sedgwick 33 PN4360 – Transcript 10 June 2016 34 PN4377 - 4379 Transcript 10 June 2016 35 [1999] FCA 1836 36 [1999] FCA 1836 at para 6 - 7 37 (1995) 185 CLR 410 38 (1990) 27 FCR 427 39 (1995) 185 CLR at 467 40 (1995) 185 CLR 410 at 465 - 468 41 (1938) HCA 34 42 [1992] HCA 66 43 PR922612 44 [1931] HCA 21 ; (1931) 45 CLR 359 45 (1995) 62 IR 371 46 [2013] FWC 6423 at 185 47 [2011] FWAFB 4070 48 See also Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at paragraph 26. 49 (2000) 98 IR 137 50 [1996] IRCA 568 ; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85] 51 Ibid. 52 PR971685 53 Exhibit C2 54 [2015] FWCFB 1033 55 [2001] VSC 150 ; (2001) 107 IR 117 56 Ibid at [240] 57 Ibid at [250]-[257] 58 [2007] FCA 1903 ; (2007) 168 IR 375 59 [2013] FWC 6423 60 S5897 Printed by authority of the Commonwealth Government Printer <Price code G, PR582604>