Frethey v Anglo Coal (Dawson Services) Pty Ltd [2017] FWC 1026 (24 February 2017) [2017] FWC 1026 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Brett Frethey v Anglo Coal (Dawson Services) Pty Ltd (U2015/16477) DEPUTY PRESIDENT ASBURY BRISBANE, 24 FEBRUARY 2017 Application for unfair dismissal remedy – Dismissal for valid reason – Dismissal not harsh, unjust or unreasonable – Application dismissed. 1. BACKGROUND [1] Mr Brett Frethey applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal from his employment with Anglo Coal (Dawson Services) Pty Ltd (Anglo). Mr Frethey was employed by Anglo as an operator at the Dawson Mine in Moura, from 18 July 2011 until the day of his dismissal on 12 November 2015. [2] Mr Frethey was dismissed following an incident on 10 October 2015 involving a dump truck operated by Mr Frethey coming into contact with a centre bund (a safety barrier made of earth and rock) on a Mine haul road, causing damage to the bund and the truck. It is not in dispute that the bund was a critical safety control designed to prevent vehicles crossing to the wrong side of the haul road and that an employee who damaged a bund and failed to report such an incident would commit a serious breach of the Mine’s policy and procedure. [3] Mr Frethey generally accepts that he damaged the bund although he takes issue with some of the evidence about the extent of the damage and the manner in which it occurred. Mr Frethey also contends that he has no recollection of damaging the bund because while operating the truck he bit an apple and broke his tooth causing him to lose focus due to pain. Mr Frethey contends that his conduct in running over the bund and in not reporting the incident is explained by the injury to his tooth and his lack of awareness that the truck had run over the bund. Mr Frethey denies that he was dishonest in the investigation of the incident and contends that his conduct did not justify dismissal. Further, Mr Frethey contends that the investigation of the incident was flawed. Mr Frethey submits that his dismissal was unfair and seeks reinstatement. [4] Anglo contends that Mr Frethey was responsible for the incident; knew that he had damaged the bund; and failed to report it. This was said to be extremely serious because damage to a critical safety control exposed other mine workers to an unacceptable level of risk. It was also contended that Mr Frethey was not forthright in the investigation of the incident and that he knew that he had been involved in damaging the bund. In its closing submissions Anglo advanced an alternative proposition that even if he was not aware that he had damaged the bund, Mr Frethey’s failure to stop and notify his supervisor that he had lost focus while operating the truck was demonstrative of failure to apply the necessary level of care and attention. Anglo submits that the dismissal of Mr Frethey was for a valid reason and was not harsh, unjust or unreasonable and that his application should be dismissed. [5] Mr Frethey gave evidence on his own behalf. 1 Evidence on behalf of Mr Frethey was also given by Mr Brendan McDougall, Engineering Consultant employed by Intersafe who provided an expert report. Evidence on behalf of Anglo was given by: • Mr Clinton Selwyn Ross Dixon, Mining Supervisor; 2 • Mr Donovan Clifford Bellingham, Maintenance Supervisor; 3 • Mr Timothy Ross White, Managing Director, T. R. White Pty Ltd, Forensic Mechanical Engineers who also provided an expert report; 4 • Mr Tony Power, Mining Operations Manager; 5 • Mr Christopher Edward Beer, Open Cut Examiner; 6 and • Mr Mark Alan Jensen, Safety and Health Superintendent. 7 [6] It was also necessary for the Commission to hear evidence from Mr Niel Gordon Mathieson, an occupational health and safety nurse to whom Mr Frethey reported an injured tooth on 10 October 2015. 8 Mr Mathieson was not available at the time the matter was heard in Rockhampton and gave evidence at a later hearing in Brisbane conducted by telephone. A statement provided by Mr Frethey’s Dentist, Dr Kiran Kumar was also tendered without objection at that hearing. 9 [7] Section 396 of the Act requires that the Commission decide four specified matters before considering the merits of an application for an unfair dismissal remedy. There was no dispute between the parties about those matters and I find that: • Mr Frethey’s application was made within the time required in s. 394(2) of the Act; • Mr Frethey was a person protected from unfair dismissal as defined in s.382 of the Act; • Anglo was not a “small business employer” as defined in s. 23 of the Act and the Small Business Fair Dismissal Code was not applicable; and • Mr Frethey’s dismissal was not a case of genuine redundancy. [8] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course taking in to account the views of the parties. The hearing was conducted in Rockhampton over three days and two further days were listed for further evidence and submissions in Brisbane. LEGISLATION [9] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows: (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 the FWC considers relevant .” [10] The employer bears the onus of establishing that there was a valid reason for a dismissal. 10 A valid reason for dismissal is one that is “ sound, defensible or well founded ” and not “ capricious, fanciful, spiteful or prejudiced .” 11 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts, 12 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done. 13 The Commission is not limited to the reason given by the employer in considering whether there was a valid reason for the dismissal. 14 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship 15 or evinces an intention that the employee no longer intends to be bound by the employment contract. 16 [11] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. However, a minor failing on the part of an employee will not constitute a valid reason for dismissal simply because it is proven to have occurred. 17 In relation to the concept of valid reason for dismissal, Moore J in Edwards v Giudice 18 observed that: “ 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. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].” 19 [12] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be: 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; Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 20 2. EVIDENCE The incident on 10 October 2015 [13] It is not in dispute that Mr Frethey was a multi-skilled operator capable of operating trucks, dozers and shovels and had been trained in the operation of this equipment. Mr Frethey regarded himself as a skilled operator who had significant training. 21 Mr Frethey had been a member of the Mine’s Rescue Team since November 2012 and said in his evidence that he understood the importance of safely operating equipment and complying with applicable safety procedures and that those procedures are important steps that Anglo has in place to manage the risks at the workplace and to meet applicable safety obligations. 22 [14] On 9 October 2015, Mr Frethey was working a night shift that commenced at 6.45 pm. At the commencement of the shift Mr Frethey was operating a dozer on a dozer push. Mr Frethey states that at or around 8.30 pm he was assigned to operate a Caterpillar 797 rear dump truck designated as RD125, in an area of the Mine known as the Terrace, in order to collect overburden material excavated by a shovel and deliver it to an overburden dump site. According to Mr Jensen’s evidence, which was uncontested on this point, log on data from the truck’s on-board monitoring system shows that Mr Frethey logged on to RD125 at 8.03 pm and again at 11.10 pm. [15] Mr Frethey’s evidence, as set out in his witness statement 23 , was that at or around 1.30am on 10 October 2015 while he was operating RD125, he decided to eat an apple which was in his bag. At this point, Mr Frethey had dropped off a load and was approaching an intersection where he had to turn left and had right of way. Mr Frethey said that when he bit into the apple, just before entering the intersection, his incisor tooth broke. Mr Frethey described the incident as follows: “ I had an instant and stabbing pain shoot through my entire head and I completely lost focus as to what was happening. This lasted for approximately 5 – 10 seconds before I was able to gain control of my senses. By this time I had driven through the intersection. I recall that I grabbed the retarder to slow myself down but I cannot recall anything else during this period .” 24 [16] Mr Frethey said that he did not believe that he had hit or damaged anything and decided to continue to work although in considerable pain. Mr Frethey drove to the shovel before deciding to park up the truck to compose himself. Mr Frethey took some Nurofen, which he had in his bag, and did two more loads which took approximately 30 minutes each before deciding that the pain was too much and that he needed to stop work. Mr Frethey said that he twice drove past the intersection where he had broken his tooth and did not witness any damage to the centre bund leading up to the intersection. [17] Mr Frethey then informed despatch that he was parking up his truck and drove to the smoking hut. After parking the truck Mr Frethey called Mr Grant Barnes and informed him about what had occurred and that he could no longer work due to the pain. Mr Barnes came to where Mr Frethey had parked the truck and brought another employee to replace him. Mr Barnes then went with Mr Frethey to see Mr Dixon who told Mr Frethey that he could leave but should go to the Nurse’s Station first. Mr Frethey went to the Nurse’s station and told the Nurse on duty what had occurred. After discussing pain relief, Mr Frethey left the Mine Site. Mr Frethey maintained that when he left the Mine Site he was not aware that the bund had been damaged. Mr Frethey does not accept the allegation that he was aware of the damage he caused to the bund and that he deliberately failed to report it. Further, Mr Frethey said that due to the size of the bund and the incident with his tooth, he was simply unaware that he had driven over the bund during the shift and could not report an incident that he was not aware of. [18] Under cross-examination Mr Frethey said that the tooth broke while he was driving the truck down a ramp to the corner and that the ramp was relatively steep. 25 Mr Frethey also said that the injury on 10 October 2015 was as a result of a cap breaking off the tooth when he bit an apple. The tooth had been capped following a football injury years earlier. After the cap broke off on 10 October 2015, Mr Frethey had a condition he termed “a dry socket” and the tooth was removed. 26 [19] In his evidence to the Commission as set out in his witness statement 27 Mr Dixon confirmed that he received a telephone call from Mr Barnes at around 2.30 am informing him about Mr Frethey’s tooth and that he was bringing Mr Frethey to the Central Start Point (CSP). Mr Dixon had a discussion with Mr Frethey during which Mr Frethey told him he had broken a tooth while eating an apple and had taken a pain killer but needed to go home as the tooth was very painful. Mr Dixon told Mr Frethey that he could go home after seeing the nurse and that Mr Frethey should keep him informed of his fitness for work. In cross-examination, Mr Dixon said that he had no reason to doubt that Mr Frethey had broken his tooth. 28 [20] A file note recording that Mr Frethey reported the broken tooth was tendered by Mr Mathieson who said that he prepared the note while speaking with Mr Frethey and shortly thereafter. 29 Mr Mathieson said that Mr Frethey presented at the Nurse’s Station at 3.15 am and showed him a broken tooth which appeared to be either a first or second molar. There was no bleeding or other injury apparent. According to Mr Mathieson, Mr Frethey reported that he had broken the tooth while eating at second crib. Mr Mathieson further records that Mr Frethey reported pain levels of 8 or 9 out of 10. 30 It was put to Mr Mathieson in cross-examination that it was not possible for Mr Frethey to have taken a second crib break given the timing of the injury to his tooth and when he saw Mr Mathieson. Mr Mathieson said that his report accurately recorded what Mr Frethey told him and that he prepared the report contemporaneously. Mr Frethey then left the Mine site and was absent until 3 November 2015 during which period Mr Frethey received treatment for the broken tooth. A statement from Mr Frethey’s dentist Dr Kumar was tendered to the effect that Mr Frethey attended the practice on 19 October 2015 for an extraction of his upper right first premolar. 31 [21] The damage to the bund was discovered by Mr Dixon and reported by him to Mr Barnes at or around 4.45 am on 10 October 2015. Mr Dixon said in his evidence that he drove onto the shovel 1 circuit and found a bund on the Western Terrace haul road that looked like it had been hit by a truck. The bund was significantly flattened and there were tyre tracks running through it. Mr Dixon said he had driven that road earlier in his shift and had not observed the damage. Mr Dixon maintained that the damage was of such significance that he would have noticed it when he drove that road earlier in the evening. After consulting with other supervisors and managers, Mr Dixon stopped traffic on the shovel 1 circuit and re-diverted it because he believed that the absence of the centre bund was a safety risk to operators using the road and he wanted to isolate the area to preserve the scene of the incident. Mr Dixon took photographs of the damaged bund on his mobile telephone. [22] Mr Dixon said in his oral evidence that he did not observe skid marks and if RD125 reduced speed by braking from 41 km to 6 km per hour in a short period as recorded by its on-board GPS tracking unit, there would be skid marks or signs of heavy braking. In response to Mr Frethey’s evidence that he applied both the service brake and the retarder, Mr Dixon said that this would give 100% braking power and lock the wheels so that skid marks would be evident. 32 Under cross-examination, Mr Dixon agreed that there was a delay of approximately four hours between the incident and road being shut down to preserve the scene and that a water truck would have driven over the road and disturbed the integrity of the tracks. Mr Dixon also agreed that a lot of trucks would have driven on the road in that period. When asked how he could be sure that the tyre tracks from RD125 would still have been evident at the point he examined them, Mr Dixon said that the tracks in question were the only ones pointing directly at the bund. [23] In response to the proposition that he could not have known the speed the truck was travelling at when it hit the bund, Mr Dixon said that to reduce speed from 41 km to 6 km per hour in a big 797 truck you would have to apply a lot of braking without hitting the bund and if the brakes had been applied on the ramp the truck would not have hit the bund. Mr Dixon maintained that his evidence was based on his experience and the data that he had seen from the on-board GPS system in the truck, notwithstanding that he did not have experience in measuring tyre tracks or assessing speed based on tyre tracks. 33 [24] Mr Beer was the Open Cut Examiner on the night shift on 9 October 2015. At 9.30 pm that evening, Mr Beer drove along the Western Terrace haul road and did not observe any damage to the bund. At around 5.00 am on 10 October 2015, Mr Beer received a call from Mr Dixon over the two way radio informing him that someone had “taken out” the centre bund on the Western Terrace haul road. Mr Beer went to the location of the incident and met Mr Dixon there. Mr Beer observed that the centre bund had been damaged and the traffic delineators that are usually placed into bunds to reflect lights and indicate the location of the bund had been knocked over. Mr Beer told Mr Dixon to start looking at all the trucks on the circuit to see if any of them had damage or dirt or other material built up on the radiators or steps at the front of the truck. Mr Beer said that he thought it very likely that the truck that had hit the bund would show damage because even the biggest trucks on the circuit would not have been able to take out a centre bund without being damaged in some way. Mr Beer also photographed the damage to the bund and ensured the area was secured and traffic on that part of the haul road was diverted. [25] Mr Turner attended the scene at or about 7.00 am for the purpose of taking a survey. On arriving at the scene Mr Turner operated a scanner to capture six different scans of the haul road, the centre bund and the surrounding area from different angles and vantage points. Mr Turner then walked along each edge of the haul road, the centre bund and the intersection located to the left of the centre bund, for the purpose of taking and manually collating GPS co-ordinates. Mr Turner observed tyre marks on the haul road which indicated that a large machine had made its way around the corner of the haul road and had driven up the centre bund, along the bund for approximately 30 metres and back down to the haul road. According to Mr Turner, the position of the tyre marks indicated that they were created by tyres on the right hand side of the vehicle. Mr Turner recorded the location of the tyre marks by walking along the area and taking GPS co-ordinates. The process of collecting the scans and the GPS co-ordinates took approximately 1.5 hours. [26] Mr Turner then used the data he had collected to create a 3D model of the incident area and a survey plan. Mr Turner recorded the outline of the haul road, bunds and intersection and the tyre marks on the haul road and bund. Mr Turner also recorded the width of the haul road and that the tyre marks had been created by the tyres on position 5 and 6 on the rear of the right hand side of the truck. At the time of undertaking the survey, Mr Turner was not aware which worker had been involved in the incident which was being investigated. Damage to RD125 before 9 October 2015 [27] There are metal brackets bolted to the front of RD125 referred to as chock holders. These brackets hold chocks for the wheels of the truck. Mr Frethey states in his evidence to the Commission that when he performed pre-start and safety checks on RD125, he noted that the chock brackets on RD125 were “ worn and damaged ” and that the hydraulic cables looked like they had been poorly patched up with zip ties. Later in his witness statement Mr Frethey said that he told Mr Jensen that there was general wear and tear to the chock holder bracket. 34 In the pre-start checklist form (discussed in detail below) Mr Frethey stated that the chock bracket bolts were broken. 35 Mr Frethey took photos of the cables before he started to operate the truck but did not take photos of the chock brackets. Mr Frethey said that before operating the truck, he attempted to contact Mr Dixon to inform him about these matters, but when he was unable to do so, decided to start work because when he had previously reported similar matters to Mr Dixon he was told that they were ok and that he was “good to go”. [28] In a statement forwarded by email to Mr Jensen on 14 October 2015, Mr Frethey said that he had done a pre-start on RD125 at the CSP around 8.15 pm and noted the following: • Damage to tyres including cuts to side walls and poor tread; • Hydraulic hoses damaged and poorly repaired; • Hydraulic oil all over the bottom of the truck from poor repair; • Chocks bracket on front of truck with broken bolts; • Tray damage (old). 36 [29] That email also contained the photographs that Mr Frethey said he took of the hydraulic hoses during his pre-start on RD125 on 9 October 2015. In response to a question in cross-examination about why he photographed the hoses but not the bracket that he alleged had broken bolts, Mr Frethey said that the hoses are a major component for the truck and he wanted to verify that they had been properly repaired. Mr Frethey also agreed that he was not too concerned about the chock holder so did not bother taking photos of it and that he thought that the damage was just general wear and tear not warranting immediate attention or presenting a risk such that the truck should not be operated. 37 [30] Mr Jensen gave evidence that RD125 underwent maintenance on 9 October 2015 and tendered a work order recording that maintenance was performed on RD125 on that day, involving removal and replacement of the brake cooling hose on the vehicle. There is no reference in that work order to any other maintenance or repair issues for the vehicle. 38 That maintenance was performed on day shift before Mr Frethey commenced to operate the vehicle on the night shift on 9 October 2015. [31] On the morning of 10 October 2015, shortly after Mr Dixon became aware of the damage to the bund, he received a call from despatch informing him that there had been an issue with RD125. Mr Dixon drove to the area where RD125 was parked up and was told by an operator that while conducting a pre-start check he had observed that the wheel chock holders were broken and there were rocks in and around the wheel chock holders and the headlights of the truck. The operator told Mr Dixon that he did not think that the truck was safe to operate and had taken it to the workshop for immediate repairs. The operator later made a statement to this effect taken by Mr Dixon on 11 October 2015. 39 [32] On inspecting RD125 at that time, Mr Dixon observed that the chock holders had been repaired and that there were fresh welds where the chock holders were welded to the bumper bar. Mr Dixon also saw that there were scratches on the front bumper bar and the lights of the truck. Mr Dixon took photographs of the front of RD125 using his mobile telephone. 40 The work order for work undertaken on RD125 on 10 October 2015 was tendered by Mr Jensen and indicates that repairs were undertaken to broken chock holder lugs on RD125. 41 Mr Jensen also tendered a statement made by the maintenance tradesperson who repaired the chock holder lugs which stated that three of the four mounting bolts were sheared off and the holder was twisted. 42 Further, the pre-start check-list form completed by the day shift operator on 10 October 2015 states that there are minor oil leaks and that: “ Previous operator mention RD went into shop to have wheel chock frame welding scuff marks and caught up dirt on front of truck and around bottom lights. ” 43 [33] In cross-examination, Mr Frethey was shown the photographs of the front of RD125 taken by Mr Dixon after the truck came out of the work shop on 10 October and agreed that the photographs showed that there was rock and gravel embedded in the lights and on the two bar and stones on the platform under the chock bracket. Mr Frethey maintained that the photographs looked like photographs of the front of any truck on a mine site and that rock on the front of the truck could have been there as a result of normal operations. 44 Mr Frethey was also shown the statement made by the next operator of RD125 that on his pre-start walk around he had noted the cradle for the wheel chocks was broken and there were rocks around it and the lights and had taken the truck to the workshop 45 . In response to the proposition that the next operator had believed that the damage warranted taking the truck straight to the workshop, Mr Frethey said that the truck had been driven and the damage he observed had obviously worsened. 46 [34] Mr Frethey was also cross-examined about various statements he made in relation to the damage to RD125 that he claimed to have observed before commencing to operate the truck on 9 October. Mr Frethey said that “ damage ” and “ wear and tear ” are the same things. Mr Frethey also said that he did not consider the chocks to be damaged to the point where there was any risk arising from operating the truck and he did try to alert Mr Dixon to the issues with the truck but was unable to contact him. Mr Frethey agreed that he did not attempt to contact Mr Barnes in relation to his concerns about the damage to RD125 although he did contact Mr Barnes about his tooth. [35] In relation to the report he emailed to Mr Jensen on 14 October 2015 describing the damage to RD125 as “ chocks bracket on front of truck with broken bolts ”, 47 Mr Frethey said in cross-examination that when he inspected the truck before starting to operate it, the two left bolts on the chock holder were broken and that they could have sheared off while he was operating the truck. 48 In response to the proposition that the bolts in question are large and that it would take some force to shear them off, Mr Frethey said that he had never really looked at the bolts and could not give evidence about their size and that while he had used the wheel chocks on other occasions when he had operated the truck had not taken any notice of the holders. 49 It was also put to Mr Frethey that RD125 had been in the workshop on the day shift on 9 October and no damage to the chock holders had been observed. Mr Frethey said that it is possible that there was damage that was not noted by the maintenance employees. [36] Mr Frethey was also cross-examined about a written response in the “show cause” process where he stated that he parked the truck and walked it after damaging his tooth and did not observe any damage to the chock holder other than that he observed in his pre-start check. Mr Frethey said that the additional damage noted by the boilermaker who repaired the damaged chock holder could have occurred when he did two loads after he had parked up the truck and walked around it. 50 Pre inspection checklist [37] There are books kept in the cabins of machines containing forms headed “MOBILE EQUIPMENT PRE-START CHECKLIST” (pre-start checklist). The pre-start checklist is a form in triplicate comprising a white original copy and pink and yellow carbon copies and the pages are perforated to enable them to be torn out. The forms have a space for the operator to record the day, the date and the shift that the form was completed on. Mr Jensen’s evidence, which was not disputed, is that the first operator of a particular piece of mobile equipment on a shift completes the pre-start checklist form for that piece of equipment. On completing the form the operator is required to remove the white copy and hand it in at the end of the shift and the pink and yellow copies remain in the book. The forms are not numbered but the operator is required to insert the date on the top of the form and to indicate whether the form is being completed on a day shift or a night shift. The form contains a series of items that are required to be checked and an area for other defects to be reported. [38] The white original of the checklist form is kept in a filing cabinet in the Mine’s maintenance department. There is no evidence about what happens to completed pre-start books which contain the pink and yellow copies of the form and none of the witnesses for the Respondent was able to provide any information about this point. However, there is evidence that the books remain in the cabin of each vehicle for at least some period of time after the forms in them have been completed and subsequent operators can review the completed forms to ascertain whether there have been issues with the particular vehicle identified by the earlier operator. There is also a safety assessment process for employees at the Mine called: “Step Back Take Five”. The process is undertaken by employees completing a form where they assess factors such as their ability to undertake a task, the tools and equipment required and the hazards that they will encounter. [39] Mr Frethey said that before he commenced operating RD125 on 9 October 2015, there were a number of pre-start checklist books in the cab of the machine and he filled out one of the books and “ placed it in his bag ”. 51 Under cross-examination, Mr Frethey said that he placed the form in his bag and not the book with the form still in it. 52 Mr Frethey did not hand in the white form from the pre-start book before he left site on 10 October 2015 and states that he forgot to do this because of the injury to his tooth. [40] Mr Jensen said in his evidence that on 12 October he obtained the pre-start books from RD125. According to Mr Jensen, there were two books in the cabin and neither of the books had a pre-start checklist form completed by Mr Frethey for the night shift of 9 October 2015. Mr Jensen also said that there were pre-start checklists in one of the books for the day and night shifts on 8 October 2015 – before RD125 went in to maintenance for brake cooling hose repairs – and for the day shift on 10 October 2015, which was the shift immediately following the night shift of 9 October 2015 when the damage to RD125 occurred. [41] The original pre-start books removed from RD125 by Mr Jensen and referred to in his evidence were tendered at my request after Mr Jensen gave his evidence. Mr Newman was given an adjournment during the hearing to examine the original documents. I have also examined them. One book is completed 53 and the other book is partially completed. 54 The first form in the completed book is dated 30 June 2015 and the last form in that book is dated 29 August 2015. The forms in the completed book are generally sequential although there is a form for 24 September between those for 8 August. There is nothing of relevance in that book, although it is notable that there is no book covering the period between 29 August and 26 September when entries in the second book that was tendered commences. [42] The first form in the partially completed pre-start book is dated 26 September 2015. The forms in that book are also generally sequential. Some of the forms have not been fully completed in that the space for the operator to tick whether the form relates to a day or night shift is blank or the day of the week on which the form was completed is blank. This is probably because the shifts spanned two days of the week in that they commence before midnight on one day and continue into the next day and the operator does not necessarily complete the form at the starting time of his or her shift but rather at the time that he or she starts to operate the piece of equipment. [43] It will be remembered that the night shift on which the incident occurred commenced at 6.25 pm on Thursday 9 October and went into Friday 10 October 2015 and that Mr Frethey commenced to operate RD125 some two hours after his shift commenced. The partially completed book contains pink and yellow copies of checklist forms for the week prior to the incident and it appears that there are two forms for each of the dates from 1 to 4 October which correlate to a day shift and a night shift on each of those dates. [44] There is one form dated Monday 5 October which has the day shift box checked indicating that the form was completed on day shift on that date. There are three forms dated 6 October. The first one has the box for night shift checked but does not state which day of the week the form relates to. I assume that this form relates to the night shift that started on Monday 5 October and went into Tuesday 6 October 2015. The next form indicates that it was completed on day shift on Tuesday 6 October and the one after that was completed on night shift on 6 October – ie. the night shift that commenced on Tuesday 6 October and finished on the morning of Wednesday 7 October 2015. There is then a form for day shift on Wednesday 7 October and a form dated 8 October indicating that it was completed on a night shift but without indicating the day of the week on which the shift started. That form probably relates to the night shift that started on Wednesday 7 October and finished on the morning of Thursday 8 October. [45] After that form there are blank pink and yellow carbon copies and no blank white original form. The next form is dated Thursday 8 October 2015 and the box for day shift is ticked. The next sequential form is dated Thursday 8 October 2015 and the box for night shift is ticked. The form after that is dated Saturday 10 October 2015 and the day shift box is ticked. The next form is dated 11 October 2015 and has the day shift box checked but no weekday indicated on the form. The last form in the pre-start book is dated Monday 12 October 2015 and has the night shift box checked. [46] The book is blank after the last entry above. I assume that it was at this point that Mr Jensen retrieved the books from RD125. Neither of the books that were tendered contains the pink and yellow carbon copies of the form that Mr Frethey maintains he completed on 9 October 2015. Mr Jensen did not give evidence about the blank pink and yellow carbon copies in the pre-start book. I also note that RD125 was in the workshop on the day shift on 9 October 2015 having maintenance undertaken on hydraulic hoses and this may explain why there was no pre-start checklist form for that shift in the book. [47] Mr Frethey was cross-examined about the pre-start books but was not shown the originals of those books given the point at which they were tendered. Mr Frethey maintained that he picked up a pre-start book from the dash of RD125 and filled it in without looking at the form completed by the previous operator. In response to the proposition that if he had completed an entry for the night shift on 9-10 October it would be in the book with the entry for 8 October, Mr Frethey said that there were several pre-start books in the cabin of the truck and he grabbed the first one. Mr Frethey maintained that despite the operator before him and the operator after him using the same book he had used a different book and that Mr Jensen was not able to find it. Further, Mr Frethey maintained that he had simply thrown the book he used onto the dashboard of the truck. 55 [48] When asked why it took until 3 November for him to provide to the Company the white original of the pre-start form he claimed to have completed on 9 October, Mr Frethey said that he was away until 3 November and was not aware of any issue involving RD125 until he got to work on that day. When it was put to him that this was inconsistent with his evidence that he was aware prior to 3 November that the Company was investigating an issue involving RD125 on 9 October, Mr Frethey conceded that he was aware of the investigation prior to 3 November. [49] Mr Jensen said that during telephone conversations with Mr Frethey on 13 and 14 October, Mr Frethey stated that he had photos of RD125 and a pre-start checklist for the vehicle at his accommodation in Moura. When Mr Frethey returned to work on 3 November, he attended a meeting with Mr Jensen about the incident on 10 October. During that meeting, Mr Jensen asked Mr Frethey about the damage to RD125 and Mr Frethey explained that he had broken his tooth and that the damage was all written in the pre-start checklist and his “Step Back Take Five”. Mr Frethey also told Mr Jensen that the documents were in his bag in town as he had forgotten about them due to what had happened to his tooth. Mr Vivian accompanied Mr Frethey to his accommodation in Moura to retrieve the documents and they returned to the Mine site an hour later when a further meeting was held. During that meeting, Mr Frethey handed Mr Jensen a completed pre-start check list dated 9 October 2015 on a white form. As previously stated the original of the form, which was tendered by Mr Dixon, states that Mr Frethey observed broken chock bracket bolts on RD125 before he operated the machine on 9 October 2015. 56 [50] A copy of the “Step Back Take Five” safety check handed to Mr Jensen by Mr Frethey on 3 November 2015 was also tendered by Mr Jensen. The form asks the employee completing it to consider whether the tools and equipment he or she is using are in good order and fit for purpose. Mr Frethey did not indicate on the form that he took issue with the state of RD125. 57 [51] Mr Frethey was cross-examined about the pre-start checklist form. Mr Frethey agreed that the purpose of the pre-start check is to check for damage or faults that might give rise to risk in operating the vehicle including ascertaining whether there is a need for the truck to be taken for immediate repairs. Mr Frethey also agreed that a record is maintained so that any incoming operator can be aware of problems identified on previous shifts in the event there is a later incident involving the truck. Mr Frethey was also asked about the absence of a Pre-Start Checklist Book with carbon copies of the form that he had completed on 9 October 2015. Mr Frethey maintained that on that occasion he grabbed the first book he saw and filled it in, put the white original in his bag and left the book in the truck. Mr Frethey also accepted that the effect of his evidence was that there was another book in the truck when he left site on 10 October 2015 and that Mr Jensen had not been able to find it. 58 [52] Mr Frethey rejected the proposition put to him in cross-examination that he did not complete a pre-start checklist on 9 October 2015 but had created the document at a later time. Mr Frethey maintained that this was not possible because when he left site on 9 October 2015 he did not have the Check-List Book, only the form that he had completed. 59 When asked why he had not provided the completed form before being asked to do so on 3 November, Mr Frethey said that the form was in his accommodation in Moura and he was in Rockhampton recovering from his broken tooth and that he did not bring the documents to site on 3 November when he returned because he was not working with his crew that day but was on overtime doing training. Mr Frethey also agreed that he was aware during his absence that an incident on 9 October was being investigated and that he told Mr Jensen prior to the meeting on 3 November that he had the pre-start checklist and the Step Back Take Five document at home. 60 [53] Mr Jensen gave evidence about a further investigation that he undertook into pre-start checks carried out by Mr Frethey during his employment. This investigation was carried out after Mr Jensen completed his initial investigation into the incident on 10 October 2015 but was not included in the Report on that incident because Mr Jensen believed that it was not relevant. The further investigation showed that Mr Frethey had logged into a range of equipment on eight occasions between 1 and 29 September 2015 including RD125 on 9 and 11 September. The logins were at times which corresponded with the beginning of a shift which meant that Mr Frethey would have been the first operator on the relevant piece of equipment and accordingly would have been required to complete a pre-start check before operating the equipment. Mr Jensen reviewed the white originals of the pre-start checklists in the maintenance filing cabinet and could not find a checklist for any of the equipment operated by Mr Frethey on those dates. In his oral evidence Mr Jensen said that he undertook this additional check because he had concerns that the checklist document produced by Mr Frethey on 3 November was fabricated. [54] Mr Jensen conceded in cross-examination that he did not put the allegation that the checklist had been fabricated to Mr Frethey during the interviews he conducted for the purpose of preparing his report. However, Mr Jensen maintained that he did show the prestart books to Mr Frethey and pointed out the missing checklist form for the night shift on 9-10 October 2015. 61 [55] Mr Jensen also said under cross-examination, that he did not know the location of the pre-start book containing carbon copies of checklist forms for the period 29 August 2015 to 26 September 2015 and that there was potentially a book lying around containing copies of all of those slips. 62 Mr Jensen also agreed that there were a number of other irregularities in the completion of forms in the books that were tendered. Mr Jensen did not accept that there was a third book in the cabin of RD125 but agreed that it was not unusual that there are two pre-start checklist books in the cabin of a vehicle and that entries can be out of chronological order. In response to the proposition that there is no process for collecting completed books, Mr Jensen said that there is a process for keeping the white forms torn from those books and that the white form is the official piece of paper. 63 The investigation of the incident and the “show cause” process [56] The mine has a fleet management system – the Leica system – which captures the movement of dump trucks and other vehicles on the mine circuit and keeps a record of equipment which has been operated by each worker. Mr Bellingham gave evidence about the Leica system. Each piece of equipment at the Mine has a GPS tracking unit and data logger on board. The GPS unit allows the location of the machine to be tracked at all times throughout a shift and the data logger processes information about the machine’s performance and activities including whether it is loading, idle, full, empty, moving or stationary. All data recorded by the data logger is transmitted to dispatch via a server which is connected to the Wi-Fi network at the Mine. Before commencing operations in the pit, each operator is required to sign on to the Leica system using an individual and confidential identification number. This allows dispatch to see where each piece of equipment is throughout a shift and who is operating it. [57] The Mine’s GPS pulse system collects data every three to four seconds. The Leica system can use two kinds of GPS. The first is accurate to within 30 cm and the second within 3 metres (although Mr Bellingham states that it is in his experience it is more accurate than this). The majority of equipment at the mine is monitored by the Leica system using the second kind of GPS as this is all that is required. On occasion there is a delay in data transmission due to lack of network coverage in some areas of the Mine. In this situation the data is stored in the machine and transmitted when the machine moves to a position where it can reconnect with the server and at that point the stored data is transmitted. This delay does not affect the accuracy of the data and the time an event occurred will still be accurately recorded. Data viewed in playback format also appears jumpy so that vehicles appear to jump from one location to the next, because of the time delay between the data moving from the server to the platform which displays it. [58] According to Mr Bellingham, Leica data received at dispatch after being processed by the data logger on board RD125 at around 1.05 am on 10 October 2015, indicates that while driving on the Western Terrace haul road, RD125 went from travelling at around 41 km per hour to around 6 km per hour very suddenly. As the speed of RD125 changed, the direction of the vehicle also abruptly changed and it veered towards the right then turned sharply towards the left as its speed reduced, then straightened up and continued down the haul road. Mr Bellingham states that the playback demonstrates that this movement was unusual as no other rear dump trucks travelling in the same direction as RD125 move in the same way. [59] Mr Jensen who was charged with preparing a report about the incident, commenced an investigation on Monday 12 October 2015. Mr Jensen looked at the Leica playback data and observed that it showed that at around 1.05 am on 10 October 2015, RD125 had, at the corner where the bund was damaged, slowed in speed over a very short period of time and changed direction suddenly as it drove around the corner. The Leica data also showed that the next operator to log on to RD125 did so at 3.40 am on 10 October 2015 and that RD125 had undergone service and repairs between 4.00 am until 4.23 am. Mr Jensen obtained copies of the relevant work order for 10 October 2015 and the records of the maintenance undertaken on RD125 on 9 October 2015 as discussed above. [60] Mr Jensen had telephone conversations with Mr Frethey on 13 and 14 October 2015 to request that he attend an interview about the damage to the bund and to RD125. In the conversation on 13 October 2015, Mr Jensen told Mr Frethey that he was investigating damage to RD125 on 9 – 10 October that was not reported and that he would like to interview Mr Frethey as one of the operators of the truck during that period. According to Mr Jensen’s notes of the discussion, Mr Frethey told him that he was confused and did not understand what had occurred. Mr Jensen states that he told Mr Frethey he needed to talk to him about whether there had been an incident while Mr Frethey was operating the vehicle. In response Mr Frethey stated that he had photos of the truck and a pre-start check list in his room in Moura. Mr Frethey also stated that he was unable to attend an interview on that day because he had a dental appointment. [61] In the discussion on 14 October 2015, Mr Frethey again indicated that he was unable to attend a meeting on site because of a family commitment and that he would send a written statement and the photographs that he had taken of the RD125. Mr Frethey provided the written statement and the photographs later on that day. As set out above, Mr Frethey asserted in that statement that RD125 had damage including broken bolts on the chock bracket and provided photographs of hydraulic hoses. [62] Mr Frethey’s evidence is that the day after the incident, while absent from work, he received calls from workmates informing him that during the shift when he broke his tooth Anglo found that a centre bund had been run over and believed that he was responsible. Two or three days later, Mr Frethey received a telephone call from Mr Jensen advising that he wanted to ask Mr Frethey a few questions about damage to RD125. Mr Frethey said that he recalled that Mr Jensen was asking about minor damage that did not require a phone call. [63] According to Mr Frethey, Mr Jensen was being “cagey” and trying to trick him into saying something incriminating. Mr Frethey said that he formed this view because he was aware that Anglo believed that he had run over the centre bund. When Mr Frethey asked Mr Jensen what the questions were about, Mr Jensen was vague and said that there was damage to the truck. Mr Frethey states that he told Mr Jensen that there was general wear and tear to the wheel chocks and there was some poor patchwork in the hydraulic lines. Mr Frethey states that he also told Mr Jensen that he had attempted to contact Mr Dixon about that damage but had been unable to reach him and had photographed the damage. [64] Mr Jensen’s evidence about the meeting on 3 November 2015, is that he asked Mr Frethey whether he had been involved in an incident on 9 October 2015 that had caused damage to RD125. Mr Frethey denied that there had been an incident during his shift. Mr Frethey also stated that he had observed damage to RD125 during his pre-start inspection including damage to the wheel chock holders and oil leaks under the truck. Mr Jensen asked Mr Frethey why he had taken photos of the oil leaks and not the broken chock holders and Mr Frethey stated in response that he did not see the damage to the chock holders as a big issue because it is common. [65] Mr Jensen also states that he asked Mr Frethey which pre-start book he had recorded the damage in and Mr Frethey said that he had used one of the books in the truck which was “tatty”. Mr Jensen showed Mr Frethey the pre-start books he had taken from the cabin of RD125 and pointed out that the completed checklists were in chronological order, except that the pre-start checklist for the night shift on 9 October was missing. Mr Frethey stated that the pre-start check list he had completed was in another book and that he had the check list and “step back take five” safety assessments he had completed in his accommodation in Moura. [66] In response to a question about whether anything else had happened on the shift, Mr Frethey told Mr Jensen that he had bitten an apple and broken his tooth. Mr Frethey also stated that when this occurred he lost concentration for a short period on the approach to the left bend in the road, and that he had slammed on the brakes and then kept going to the shovel. In response to a further question from Mr Jensen about whether he hit the bund, Mr Frethey said: “ I’m not sure. I don’t think so .” After this meeting, Mr Vivian escorted Mr Frethey back to his accommodation in Moura to retrieve the pre-start documentation. [67] Mr Jensen said that in a second meeting with Mr Frethey on 3 November 2015, after he returned with the pre-start checklist form and the take five document, Mr Jensen played the video footage captured from the Leica system for Mr Frethey, showing the movements of RD125 at around 1.05am on 10 October 2015. After viewing the footage, Mr Frethey stated that he could have hit the bund but did not remember it. Under cross-examination Mr Jensen agreed that he did not tell Mr Frethey about the damage to the bund until the second meeting he held with him on 3 November, and initially only told Mr Frethey that there was damage to RD125 and asked him whether there had been any incident on the night shift on 9 – 10 October. [68] Mr Frethey’s evidence about the meeting on 3 November is that Mr Jensen told him that Anglo believed that he had driven over the centre bund on the evening of 10 October 2015 and asked him what had happened that night. Mr Frethey explained that he had broken his tooth and was in severe pain and did not recall seeing or noticing that he had driven over a centre bund. In response to a question about damage to RD125, Mr Frethey states that he told Mr Jensen that it was all written in the pre-start check list and the Take Five. In response to a statement from Mr Jensen that the documents were not in the truck, Mr Frethey stated that this was because they were in his bag in town and he had forgotten about them because of his tooth. Mr Jensen then told Mr Frethey that there was GPS footage to show that he was responsible for the damage to the bund and Mr Frethey asked to be shown the footage. On viewing the footage Mr Frethey states that he told Mr Jensen that before seeing the footage he would have sworn that he did not drive over the bund but now was not sure. [69] Mr Jensen said that following his discussions with Mr Frethey on 3 November, he completed an investigation report which he had been preparing since 20 October 2015 and updating as the investigation progressed. Mr Jensen made findings that: • RD125 was in the workshop on the day of 9 October 2015 for minor repairs to hoses; • Mr Frethey was the first operator to drive RD125 after it was released from the workshop; • Mr Frethey operated RD125 for the entire shift until he left the site at 3.17 am; • No previous records of damage to the wheel chock holder were found; • Mr Frethey took the time to photograph oil leaks under RD125 at the pre-start inspection but did not consider the chock holder damage [alleged by Mr Frethey to have been noted in his pre-start inspection] worthy of a photograph; • The centre bund where the damage occurred was in place at 9.30 pm and 12.10 am on that shift; • RD125 was travelling past the centre bund where the damage occurred; • RD125 was the only truck during the entire night shift to show significant speed change and deviation off course; • RD125 chock holder was found damaged and with dirt around it and around the lights during walk around inspection by new operator at 3.30 am; • RD125 path of travel at time of speed change and deviation aligns with damage to centre bund; • The centre bund damage was significant and the shovel circuit continued to operate post the incident without any crew operator notifying the Supervisor or the OCE of the damaged centre bund; • The haul road was not wet and was watered one hour and three minutes prior to RD125 deviating off path and changing speed; • Road width on bend was greater than the minimum 15 metres required for Caterpillar 797B truck. 64 [70] After completing his report, Mr Jensen had no further involvement in the disciplinary process. Mr Jensen was cross-examined about the method by which witness statements were gathered for the purposes of his report and the fact that he had not obtained a witness statement from Mr Frethey. Mr Jensen said that at the point he commenced to prepare the report no-one knew which truck had hit the bund and who was driving the particular truck. Mr Jensen conceded that at some point on Monday, 12 October 2015 he became aware that Mr Frethey was the driver of RD125 at the time the bund was damaged and agreed that when he spoke to Mr Frethey on 13 and 14 October he could have been clearer about the incident and the subject of his investigation. Mr Jensen said that during the telephone conversations on those dates, he did ask Mr Frethey whether there had been an incident during the night shift on 9-10 October. In response to Mr Frethey’s evidence that he had been “cagey” during the conversation, Mr Jensen said that Mr Frethey had also been “cagey”. Mr Jensen rejected the proposition that his investigation had been conducted in an appalling manner and said that he waited to interview Mr Frethey on his return to work, before providing details of the allegation that he had damaged the bund and RD125. [71] Mr Jensen agreed that his Report stated that Mr Frethey denied hitting the bund when Mr Frethey’s actual response to that allegation had been that he did not remember hitting the bund. Mr Jensen also stated in cross-examination that following a discussion with Mr Mathieson he doubted that Mr Frethey had actually broken his tooth as claimed. Mr Jensen said that he had not given evidence of this conversation in his witness statement because it slipped his mind. 65 Mr Dixon agreed under cross-examination that he was the responsible supervisor for the purposes of the incident reporting and investigation process in effect at the Mine, and that he had not interviewed and taken a statement from Mr Frethey at the earliest convenience. Mr Dixon said that this was because Mr Frethey had a broken tooth and had stated that he was in pain and left the site so that it was not convenient to take a statement from him. [72] Mr Power agreed under cross-examination that a witness statement of the kind used by Anglo in formal investigations, was not taken from Mr Frethey before it was decided that he should be stood down and required to “show cause” as to why he should not be disciplined in relation to the incident. Mr Power also agreed that a breach of the policy requiring incidents to be reported would only occur if the employee was aware of the incident. In response to the proposition that Mr Jensen’s report was flawed because it did not take account of Mr Frethey’s broken tooth contributing to the incident, Mr Power said that an operator who broke a tooth and was in that much pain, should stop and not continue to drive. [73] Mr Frethey states that he attended further meetings on 3 November with Mr Peter Murphy and Mr Nick Matzos during which he again stated that before viewing the footage he would have sworn that he did not run into the bund but was no longer sure after viewing the GPS. Mr Frethey queried whether the bund in question was the standard height and was told that it was, but was not shown any photographs to prove that this was the case. After a further break, Mr Frethey was informed that he was stood down pending further investigation, and was given a “show cause” letter. [74] The “show cause” letter tendered by Mr Frethey under the signature of Mr Vivian, states that despite the evidence that Mr Frethey was the operator of RD125 at the time it made contact with the centre bund, he had refused to take responsibility for his actions. The “show cause” letter also asserts that Mr Vivian does not accept that Mr Frethey did not know that he came into contact with the centre bund and that Mr Frethey has been less than forthright with his responses as part of the investigation. The letter states that Mr Frethey is required to attend a meeting with Mr Power on 6 November 2015 to respond to the allegations and “show cause” as to why disciplinary action, including termination of his employment, should not be taken. [75] Mr Power said that he instructed Mr Vivian to send the “show cause” letter to Mr Frethey after reviewing the report prepared by Mr Jensen and analysing the evidence that had been collected in the investigation process, because he formed the view that Mr Frethey’s conduct as described in the investigation report was in breach of his obligations as an employee to: • Comply with all relevant statutory obligations; • Comply with lawful and reasonable directions of Anglo Coal; • Work as required according to his skills, training, experience and knowledge; • Comply with Anglo Coal’s policies and procedures including those relating to safety and health; and Behave in accordance with the Employee Code of Conduct. [76] Mr Power also said that the Dawson Mine Induction – Incident Reporting is delivered to all employees as part of their induction and requires all incidents, including damage to equipment, to be reported to supervisors. 66 Incident reporting requirements are also contained in the Mine’s Incident and Reporting and Investigation Procedure. 67 The Mine Traffic Rules Procedure requires employees to operate mobile equipment in a way that ensures that the risk of injury to the operator and others is as low as reasonably achievable. 68 The Code of Conduct requires employees to operate in an honest an ethical manner and to comply with conditions of employment and company policies and ensure the safety of themselves and others. 69 [77] The meeting between Mr Power and Mr Frethey was held on 9 November 2015 due to Mr Frethey being unavailable on 6 November. The meeting was also attended by Mr Murphy, Human Resource Manager at the Mine, and Mr Ian Commerford, Mr Frethey’s support person. At the meeting Mr Frethey handed a letter to Mr Power containing his response to the “show cause” letter. Mr Power tendered a copy of the letter handed to him in that meeting by Mr Frethey. 70 In that response Mr Frethey states that he disagrees with the assertions that he is not prepared to take responsibility for his actions and that he has been less than forthright in the investigation. The response goes on to state that until he viewed the GPS footage Mr Frethey was convinced that he had not hit the bund but concedes it is possible that he did drive over it and was not aware of this because of the accident suffered when his tooth broke while eating an apple as he travelled down the ramp. Mr Frethey states that this caused a significant amount of pain and he lost focus for a brief moment. [78] Mr Frethey also states in his written response that he pulled on the retarder and thinks that he applied the service brake as well. Further, the version of Mr Frethey’s response tendered by Mr Power states: “ I started to regain my focus and proceeded to the shovel. I pulled up short of the truck in front of me, and took some Nurofen that I had in my bag. After I got loaded I went to the dump. I let dispatch know that I would be pulling up for a few minutes. I parked the truck as per the procedure and walked around the truck, trying to take my mind off the pain. ” [79] Another version of Mr Frethey’s response to the “show cause” letter was appended to his witness statement in these proceedings. 71 The version of the “show cause” response appended to Mr Frethey’s witness statement contains the paragraph set out above with the following additional sentence: “ I looked around the truck and could not see any damage other than what I had reported in my pre-start. ” [80] Both versions of the response to the “show cause” letter state that had he known of the damage to the bund Mr Frethey would have reported it, and that he had told Mr Jensen that the only damage he knew about with respect to RD125 was recorded in the pre-start check list. The “show cause” response also states that the reason Mr Frethey is still not 100% convinced that he damaged the bund is because some questions he asked about the GPS footage have not been answered and he has not seen photos of the damaged bund or the damage to the truck. Further, Mr Frethey states that he has been informed that the bund is not up to the standard height and since it has been repaired is higher than it was at the time of the incident. Mr Frethey states that he does accept that it is possible that he was responsible for the damage to the bund wall and apologises if he did damage the bund and maintains that the reasons he did so are obvious and justifiable. [81] Under cross-examination, Mr Frethey could not explain why there are two versions of his response to the “show cause” letter, but maintained that he did walk around RD125 when he parked it after breaking his tooth, and could not see any damage other than what he noted in his pre-start inspection. 72 Mr Frethey also said that he was focused on his pain at that time and that it was dark. 73 The height of the bund [82] Mr Beer gave evidence about the requirements for mine roads and safety bunds which are set out in a procedure entitled the Design and Construction of Mine Roads Procedure . 74 This procedure provides that single direction traffic roads should be no less than 1.5 times the wider than the largest vehicle that uses them. A centre bund on a haul road effectively divides the road into two lanes of traffic with each usually considered a single direction traffic road. Where a Caterpillar 797 regularly uses the road, each lane must be at least 15 metres wide. [83] Safety bunds are constructed of overburden material and consist largely of rocks, as the bunds must be heavy and strong enough to stop or significantly slow a vehicle, provided it is being operated in accordance with the Mine’s safety rules. There was an attempt during cross-examination to introduce evidence to the effect that the bund included material known as GOB, which is a waste product from coal that is softer than dirt or rock. The Procedure provides that as a general guide safety bunds should be at least half the wheel height of the largest vehicle regularly being driven on the road and nominally three times as wide as they are high. The procedure also provides that centre bunds must be installed on permanent haul road corners and bends. They are not constructed as high as edge bunds so as not to block the line of sight for light vehicles being used on the road. The evidence is that bunds taper at the corners of haul roads. [84] As previously noted, it is not in dispute that bunds are critical safety controls. It is also not in dispute that an operator who damages a bund and knows that the bund is damaged, is obligated to report it and that a failure in such circumstances to report damage would be a serious safety breach by the operator or any person who was aware of damage to a bund. [85] Mr Beer was cross-examined about the height of the bund on the Western Terrace haul road and said it was satisfactory. Mr Beer said that he has a height recorded on the flag on his vehicle but could not remember specifically measuring the height of the bund in question. Mr Beer agreed that bunds are tapered near intersections to allow for light vehicle visibility but said that the point at which the truck hit the bund was before the tapered section of the bund. Mr Turner said that while drafting his witness statement in this case, he had cause to consider the scan data and was able to determine the height of the centre bund using individual data points. According to the calculations undertaken by Mr Turner, the bund height before it was disturbed was 1.824 metres. The bund height after it was disturbed was 0.538 metres. [86] In his evidence to the Commission and during discussions about the incident prior to his dismissal, Mr Frethey questioned whether the bund was the correct or standard height and said that if it was it should have acted as a critical control and stopped his truck. According to Mr Frethey, the bund at the intersection where the damage was found, was not very high – approximately 1.5 metres. Most bunds will be twice as high as this. Mr Frethey also said that most bunds at the mine site are higher and that the height of the bund in question had been increased after the incident. Mr Dixon and Mr Beer disputed Mr Frethey’s assertion that the bund was not the required height maintaining that most bunds at the mine are around 1.8 metres high and that the bund did act as a critical control because Mr Frethey’s truck did not cross to the other side of the road. [87] Under cross-examination Mr Frethey agreed that as a result of RD125 hitting the bund its effectiveness was compromised. Mr Frethey disagreed with the proposition that the reduction in height of the bund to just over half a metre as a result of the incident created a risk and said that if the bund had been at the correct height it would have pulled him up. 75 Mr Frethey also maintained that the bund was not the correct height because it was tapering off at the corner. 76 [88] Mr Dixon said that in his six years’ experience as an operator of rear dump trucks, including the Caterpillar 797, it would not be possible for a truck to hit a bund the size of the bund on the Western Terrace haul road without the operator realising what had happened. Bunds are made of overburden material consisting predominantly of rocks, some of which are large. Mr Dixon said that in his experience, the impact of hitting the centre bund would have caused the operator to be violently jolted in the truck carriage. Mr Dixon also said that the bund did act as a critical control because RD125 did not cross to the other side of the haul road despite the fact that it hit the bund. Under cross-examination, Mr Dixon agreed that when the bund was replaced, it was built to a greater height than it was on 10 October when the incident occurred. Mr Dixon also agreed that the bund in question contained GOB, but maintained that there was a lot of good rock in the bund. 77 [89] Mr Beer said that in his experience and from his knowledge of coal mining operations, the collision with the bund would have resulted in Mr Frethey experiencing a very significant jolt while operating the truck. Mr Beer did not accept that Mr Frethey could have failed to notice that he had come into contact with the bund. Based on his observations of the scene and the tyre tracks, Mr Beer said that it would not be possible for the driver of a rear dump truck not to feel the impact of such a collision including the impact on the truck and its driver as it mounted the bund, drove on the bund and then left the bund. [90] Under cross-examination, Mr Beer said that the 1.8 metres is a general guideline with respect to the height of centre bunds and that he does not jump out of his vehicle to measure them but rather relies on the height of his vehicle and a height indicator on the vehicle as a reference point. Mr Beer agreed that bunds at corners can be flattened or tapered down to allow for light vehicle visibility to a height of around half a metre but maintained that the truck mounted the bund before the intersection. [91] Mr Beer also agreed that he had not driven a Caterpillar 797 and that he had no experience of the sensation involved in driving through a bund. Mr Beer said he has broken a tooth and that it was painful in the short term. In response to the proposition that such pain might have distracted him had he experienced it while driving a dump truck, Mr Beer maintained that he would have kept his concentration on driving the truck. In response to questions from the Commission, Mr Beer said that the truck initially hit the part of the bund that was not tapered and went off the bund at the point that it was tapered. Mr Beer also said that two or three of the centre delineators on the bund in question had been knocked over. According to Mr Beer’s evidence, these delineators were made of conduit piping placed over sticks driven into the ground in the centre of the bund, and stood approximately 1.8 metres above the top of bund. A photograph of the bund after it had been damaged shows that at least one delineator has been damaged by being bent at a right angle. 78 [92] As well as raising issues about the height of the bund, in response to questions put to him in cross-examination about the front of RD125 coming into contact with the bund, Mr Frethey said that he did not collide with the bund. Mr Frethey agreed that the height of the chock holder is 1.5 metres from the ground, but maintained that rocks collected on the front of the truck as evidenced in the photo tendered by Mr Dixon of the truck after it was repaired, were not the result of a collision with the bund because he did not collide with the bund. Mr Frethey maintained that the tyres in position 5 and 6 – at the rear of the truck – had come into contact with the bund rather than the front of the truck. In this regard, Mr Frethey said that it appeared that he had come through the intersection and clipped the bund with those tyres. Mr Frethey was unable to explain how tyres at the rear of the truck could have gone 30 metres along the bund without the front of the truck also going in the same direction, and stated that he was focused on other issues. 79 [93] Mr Frethey also said that he lost all focus and agreed that the pain in his tooth may have made him oblivious to what had occurred. 80 In response to the proposition that after seeing the evidence of witnesses for Anglo he did not now dispute that it was RD125 operated by him that had made contact with the bund, Mr Frethey said: “ I’m willing to admit after the evidence that yes, it may have been my truck, yes ” before agreeing that it was his truck that hit the bund. 81 When asked why he did not alert Anglo to the fact that he had lost focus due to the pain of his broken tooth and had no idea what his truck was doing, Mr Frethey said that he was not aware of any issue as he was dealing with his tooth at that stage. [94] Mr Frethey agreed that after seeing the evidence, his truck had deviated from its normal operation at or around 1.05 am on 10 October 2015. In response to the proposition that an experienced driver would have noted this, Mr Frethey said that this would be the case if the driver was not focused on other issues. 82 Decision to dismiss Frethey [95] Mr Power’s evidence was that following the “show cause” meeting, he considered Mr Frethey’s responses. Mr Power said that: • Centre bunds are a critical safety control at the Mine; • Mr Frethey’s failure to report the damage to a centre bund posed a serious safety risk to himself and others; • Mr Frethey did not appear to take responsibility for the incident and did not accept that he ran over the centre bund until presented with video evidence; • He was not confident that Mr Frethey would be accountable for and take responsibility for his actions as an employee of the mine; and • He did not accept that Mr Frethey did not know that he hit the bund and found his story to be totally implausible. [96] Mr Power obtained information about Mr Frethey’s disciplinary history during his deliberations and did not think that these matters were particularly serious although he did consider that Mr Frethey would have been aware that failing to comply with Anglo policy would result in disciplinary action. Mr Power formed a view that the misconduct in relation to the centre bund incident must have been at the forefront of Mr Frethey’s mind at the relevant time and it concerned Mr Power that Mr Frethey did not report the incident. Mr Power decided to terminate Mr Frethey’s employment and caused a termination letter to be prepared. A further meeting was held on 12 November at which Mr Power read the termination letter to Mr Frethey and gave him the letter. [97] The termination letter sets out the findings in relation to Mr Frethey’s conduct and the reasons for dismissal as follows: “I note that in your response to the “show cause” letter you conceded, after having been shown the GPS footage, that it is possible that you may have driven over the centre bund while operating RD 125 on 10 October 2015. You maintain however that you cannot remember doing so because you were suffering from tooth pain. I have considered your response at great length, including the concerns that you have raised in your response. I have also considered the mitigating factors that you have raised in your response, including your length of service with the Company and your family circumstances. I have also given consideration to your disciplinary history, namely: • The written warning that was issued to you following an incident on 31 January 2014 whereby you spoke to your supervisor in an inappropriate manner and refused to operate a dozer assigned to you without a valid reason; and • The written warning that was issued to you following an incident on 9 September 2015 in which RD 125 made contact with a shovel, resulting in damage to the shovel. I note that on both occasions the written warning made it clear that further misconduct, or otherwise acting in an unsafe or negligent manner in the future, could result in further disciplinary action, including dismissal. Despite the matters stated in your “show cause” response, I do not accept that you did not know that you came into contact with the centre bund and I have determined that you have been less than forthright in your responses as part of the investigation regarding your knowledge of your involvement in the damage to the bund. Your conduct on 10 October 2015 was extremely serious. The incident resulted in damage being caused to RD 125 as well as damage to a critical control. By failing to immediately report the incident and preserve the scene of an incident, you left a critical control damaged and ineffective, exposing all coal mine workers operating on the circuit to an unacceptable level of risk. Based on the information available to the Company, I have determined that your conduct on 10 October 2015 amounts to misconduct and is in breach of your contract of employment, the Dawson Mine Site Induction – Incident reporting, MOP 0021 – Mine Traffic Rules and the AAMC Code of Conduct. As a result of your misconduct on 10 October 2015, and having regard to your previous disciplinary history, the Company cannot be confident that you can work safely and in accordance with the AAMC Code of Conduct and the Company’s policies and procedures going forward. The Company is also concerned about your ability to learn from and take responsibility for your actions. Your conduct has irreparably damaged the relationship of trust and confidence between yourself and the Company. Given the above matters, the Company has decided to terminate your employment, effective immediately.” 83 [98] While Mr Frethey was absent from the workplace an investigation was carried out in relation to the incident by Mr Jensen, with input from Mr Dixon and Mr Turner. Mr Jensen had a number of telephone discussions with Mr Frethey on 13 and 14 October 2015 and received a brief statement from Mr Frethey about the events on the shift. When Mr Frethey returned to work on 3 November he had further discussions with Mr Jensen and was handed a letter requiring him to “show cause” in relation to why he should not be subjected to disciplinary action as a result of the incident. Mr Frethey responded to the “show cause” letter and his explanation was not accepted. He was dismissed on 12 November 2015 and paid three weeks wages in lieu of notice. Earlier warnings [99] There was evidence that Mr Frethey had been subject to two earlier written warnings in relation to an incident on 31 January 2014 and an incident on 9 September 2015. Mr Frethey said that these are the only breaches of company policy that he has been involved in. In relation to the first of these incidents Mr Frethey states that he was instructed to operate a dozer on the dozer push with five other operators. The shift was a night shift and it was raining heavily. Mr Frethey said that at the time he had not operated a dozer for approximately seven months and he did not feel comfortable or safe operating that evening. Mr Frethey was then directed to do other work but was subsequently stood down and given a warning, which he disputed. The warning also stated that Mr Frethey had used inappropriate language, which he disputed. After escalating the dispute through the dispute settlement procedure, the warning was reduced by the then Mine Manager from a moderate to a minor breach. Mr Frethey maintains that he raised a reasonable safety concern and did not use bad language. [100] Mr Dixon states that Mr Frethey had operated a dozer the day before when he had “hotseated” for a driver and was competent and authorised to operate a dozer. Mr Dixon also said that Mr Frethey spoke to him aggressively during a discussion about the matter. [101] In relation to the incident on 9 September 2015, Mr Frethey states that he received a minor breach warning as a result of the tray of a truck he was operating being caught on a bollard while he was backing it in and avoiding an electrical cable. It is not in dispute that Mr Frethey reported this incident in accordance with the requirements of Anglo’s reporting policy. [102] Mr Dixon also gave evidence about other matters in relation to Mr Frethey’s disciplinary history involving a file note for failing to follow procedure in tagging out a machine (5 March 2012) and refusal of duty (21 August 2015). As previously noted, Mr Power did not rely on the substance of these matters in deciding to dismiss Mr Frethey but rather considered that these matters indicated that Mr Frethey had been made aware of the implications of failing to comply with Company policy. 3. EXPERT EVIDENCE [103] Both parties called expert evidence in relation to the incident on 10 October 2015. Mr McDougall was requested by the CFMEU to comment on the potential for Mr Frethey to fail to detect that he had driven into the centre bund and prepared a Report in response to that request. Mr McDougall based his report on information provided by the CFMEU including the witness statements of Mr Frethey, Mr Bellingham and Mr Turner in these proceedings. Mr McDougall noted that he had not been provided with raw data showing GPS co-ordinates and any other captured information for RD125. Mr McDougall also noted that he had not been provided with the GPS co-ordinates for the centre bund. Further, Mr McDougall did not see any of the photographs of RD125 after the incident. [104] Mr McDougall said that whether or not the image of the rear dump truck displayed in the Leica system animation is accurate to the map scale is not stated and the overall dimensions of a rear dump truck will typically be of the order of 12.7 metres long and 7 metres wide. The precise location on the image of a rear dump truck which corresponds to the actual GPS coordinates captured, is also not stated. In his oral evidence Mr McDougall said that RD125 is a bigger vehicle than he had assumed being almost twice the capacity of the typical vehicle described in his Report. [105] Mr McDougall notes that the height of the undamaged bund at the point on the Leica image marked with a green dot and captioned Range: 120.065 is identified as 1.8 metres above the adjacent road. The height of the bund closer to the intersection prior to it being damaged, has not been quantified. Typically bund heights close to intersections are reduced to facilitate vision above the bund by drivers of light vehicles where eye height is usually in the 1.2 to 1.3 metre range. Mr McDougall makes a number of observations including that the truck ran on to the bund while doing a left hand turn rather than hitting it at a 90 degree angle; after initial contact ran almost parallel to the bund; and travelled along the bund for a distance of approximately 40 metres. [106] In relation to the Leica system playback, Mr McDougall’s report concludes that it is not possible to determine whether RD125 has run up on to the bund as it negotiated the left hand turn at the incident location at approximately 1:04:58 am on 10 October 2015. The relative lateral positions for RD125 and RD101 at 00:56:58 and 1:04:58 are not at large variance. Mr McDougall observes that had the actual GPS co-ordinates of RD125 been made available at around the relevant time, and had the GPS co-ordinates of the centre bund been provided, there is an increased likelihood that a conclusive statement could be made – limited only by the accuracy of the GPS measurements. Dr McDougall agrees that: • The Leica system data does identify that RD125 was descending the ramp at about 47km per hour reducing to 41km per hour over the 15 second period prior to turning left; • RD125’s speed is recorded as reducing to 6km per hour over the next 5 seconds and 3km per hour as it completed an abrupt left turn; and • This does suggest sudden deceleration occurred for RD125 either as a consequence of braking or running into the bund. [107] Mr McDougall also said that braking from 41 km per hour to 6km per hour is readily achievable by the braking system of an unloaded rear dump truck. Mr McDougall disagrees with Mr Bellingham’s statement that RD125 veered towards the right and then sharply turned to the left as its speed reduced. An approach to the left hand curve for RD125 of 41km per hour is not excessive as RD101 is recorded as negotiating the same curve at 40km per hour. Mr McDougall also detailed multiple inconsistencies with respect to recorded vehicle movement whilst viewing the Leica system playback and said no logical explanation could be provided by him for these and the reliability of the information presented must be challenged. [108] Further, Mr McDougall detailed the significant restrictions to vision experienced by operators of large mining equipment such as rear dump trucks and the range of the area in which operators cannot see obstacles or objects at up to 1.5 metres from the ground. Objects of up to 1.5 metres high which are directly ahead of the driver can be observed when more than 10 metres distant from the truck. However when the object is more than 40 degrees to the driver’s right, 1.5 metre objects within 20 metres cannot be observed. The height of the undamaged centre bund was recorded as 1.8 metres which is not significantly above 1.5 metres. In relation to the incident involving Mr Frethey, Mr McDougall stated that the angle between the heading direction of the tyre marks of RD125 and the alignment of the undamaged section of the bund where contact was first made was approximately 33 degrees. As the roadway width was approximately 17.5 metres, the bund location would be beyond 40 degrees to the driver’s right at the time contact was made by the right steer tyre (and for a significant time frame prior to the impact) the centre bund would not have been visible to the operator. This is particularly likely given the limited forward illumination provided by the truck’s headlights on low beam at night. [109] Mr McDougall also said that no sudden longitudinal or lateral tilting of the truck would have been felt by the driver as the truck ran up onto the bund. Based on the angle of the tyre marks and the alignment with the undamaged section of the bund and the width of the bund, the maximum elevation would be approximately 5.3 degrees and when both wheels on the right hand side of the haul truck were on the bund, the right side of the vehicle would have been elevated 0.538 metres relative to the wheels on the left of the vehicle. Mr McDougall also calculated that the truck would have had to travel forward 5.3 metres forward before the right side steer tyre reached maximum elevation of 0.538 metres. Due to suspension effects the driver seated on the left side of the vehicle would not experience any sudden or significant front to rear tilting as the vehicle ran up on to the bund. The vehicle would experience an almost identical tilt when driving through the left hand curve if the haul truck is positioned on the left side of the roadway. [110] Mr McDougall’s conclusions are that based on the information provided it cannot be concluded that RD125 did run up the centre bund on 10 October 2015. The centre bund would not have been visible to the driver when contact was made with the bund by the right steer tyre and for a significant time frame prior to the impact. This is particularly likely given the limited forward illumination provided by the truck’s headlights on low beam at night. The driver of the haul truck who did run up the bund would not have experienced any sudden longitudinal or lateral tilting in comparison with what would occur during normal negotiation of the left hand curve. The deceleration of RD125 identified by the Leica system is readily achievable by the braking system of an unloaded rear dump truck. While RD125 did decelerate rapidly as it negotiated the left hand turn at the incident location, it cannot be concluded that RD125 did run up onto the centre bund and if it did it is Mr McDougall’s opinion that the driver may not have identified that the truck had in fact run up the bund. [111] In his oral evidence, Mr McDougall said that typically, the height of a bund is reduced to 1.2 metres near an intersection to allow for visibility. Based on the photographs taken by Mr Dixon, Mr McDougall agreed that the truck in those photographs had run onto the bund and that the damage to the truck was consistent with it having bulldozed or graded across the top of the bund. Mr McDougall also said that the height of the bund may have been lower than the bracket for the chocks on the front of the truck and the material had been pushed up onto the front of the truck by the bulldozing effect as it ran along the bund. Mr McDougall agreed that even if the bund was 1.5 metres high, both the front and back tyres of the truck drove up the bund and compressed it although the compression would have been gradual. 84 Further, Mr McDougall agreed that the truck travelled for a distance of between 30 and 40 metres along the bund. [112] Mr White prepared an expert report at the request of Ashurst Australia Lawyers in response to four key matters in Mr McDougall’s report. Mr White said that he generally agreed with Mr McDougall’s analysis in relation to the driver’s field of vision and that at a particular point during the travel of the truck it would have been beyond a 40 degree radial to the driver’s right. However, Mr White notes that as the driver approached the left hand turn, the area of the bund that he ran over (in Mr White’s opinion) was directly in front of him. In relation to the elevation of the truck, Mr White accepted that the height to which the bund was squashed down was 0.538 metres above the adjacent road surface after being driven over by both the front and rear tyres on the right hand side of the truck. This meant that the rear tyres were likely elevated to the height of 0.538 metres. However, in Mr White’s opinion the front tyres did not do all of the squashing of the bund down to 0.538 metres. [113] Mr White also generally accepted the angle of 33 degrees as determined by Mr McDougall. However, Mr White’s opinion is that scaling indicates that the width of the bund in the location where the truck first commenced to mount it was 9 metres. The front right hand side wheel of the truck needed to travel 4.5 metres onto the bund (i.e. half of the overall width of the bund) to be centred on the bund. Then, assuming the truck’s wheelbase was approximately 7.2 metres, then Mr White’s calculations are that the truck would have had to travel forward approximately 8.4 metres (rather than the 5.3 metres calculated by Mr McDougall) to have moved “sideways” 4.5 metres up the bund. At a speed of 40 km per hour, the truck would have taken � of a second to travel up the bund. [114] In relation to Mr McDougall’s view about the maximum elevation angle of the right front tyre of the truck, Mr White said that in his opinion the front track of the truck as calculated by Mr McDougall appears to be less than the actual track based on the overall width of the truck being 10 metres. Further, Mr White concludes that the right hand side of the truck reached a higher level than 0.538 metres on the basis of his view that the right hand front tyre did not do all of the squashing down of the bund. Mr McDougall concludes that when these factors are combined it is likely that the angle of 5.3 degrees is a reasonable approximation for the lateral tilt angle achieved by the truck’s chassis and hence, the driver’s seat. [115] Mr White agreed with the view of Mr McDougall that the rear tilting of the truck may have been damped by the truck’s suspension but maintained that sideways tilting of at least 5 degrees would still have occurred. The sideways tilting – for a truck speed of over 40 km per hour – would have occurred over a period of less than one second, and in Mr White’s view an experienced driver would have detected this sideways tilt. Mr White also maintained that the rear tyres on the right hand side of the truck elevated to 0.538 metres but the front tyres were likely elevated to a materially higher position, given that the front tyres alone did not do all of the squashing down of the bund. In relation to Mr McDougall’s opinion that the vehicle would experience an almost identical side tilt when driving through the left hand curve if it was positioned on the left hand side of the road, Mr White said that for the truck to have made the marks on the bund, it would have been positioned approximately ten metres further to the right. [116] With respect to Mr McDougall’s view that the driver of the truck who ran on to the bund would not have experienced any sudden longitudinal or lateral tilting in comparison to that experienced in a normal left hand turn, Mr White said that the driver would have experienced lateral tilting of 5 degrees or more over a period of less than one second and an experienced driver operating with reasonable skill and care would have detected the combination of longitudinal (albeit damped) and lateral tilting as not being representative of what could have been reasonably expected during normal negotiation of the curve. This is particularly so given that the direction of the roadway is generally downhill in the section of interest and the tilting of the truck as it drove onto the bund would have been uphill. [117] In relation to the perception of the driver, Mr White said that an experienced driver operating with reasonable skill and care would have identified that the truck ran up onto the bund because of: • Lateral tilt of the truck; • A change in the throw of the headlights because of the beam being blocked by the bund and the change because of tilt to the left; • The height of the driver’s cab above the ground would have resulted in a material lateral translation – ie. a 5 degree lateral tilt would result in a 500 mm sideways translation which may be able to be detected by an experience driver; and • The position of the truck would have been further right than it would usually have been when negotiating the curve. [118] Mr White also noted that in contrast with what might be considered as a path that gradually climbed onto the bund, the tyres rolled off the bund from an elevation of approximately half a metre, over a longitudinal distance of approximately one metre. This means that the downhill gradient is between ten and twenty times greater than the uphill gradient. It is therefore intuitive that the movement of the truck as it came off the bund would have been more noticeable than its movement as it went up the bund. If it was marginal whether or not the driver would perceive the truck going up onto the bund it would be clearly perceptible to the driver that he had come down off the bund. In particular the change in the throw of the truck’s headlight beams would be particularly noticeable as the truck came off the bund even considering some damping afforded by the truck’s suspension. [119] Mr White’s conclusion is that it is more probable than not that RD125 ran up onto the bund on the basis of the anomaly in the speed of the truck identified on the Leica playback system; the damage reported to the front of the truck after the driver’s shift and not before; and the damage to the truck being consistent with the truck bulldozing or grading the top of the bund. [120] In his oral evidence, Mr White observed that there was no smudging evident in the photos taken by Mr Dixon that would be expected if a truck was under a material amount of braking and in his view the truck was not under a significant amount of braking. Mr White also said that while the bund may not have been squashed down to a uniform .538 metres, the truck travelled along the bund for 30 or 40 metres squashing it and that this would have involved a lot of dirt. As the truck bulldozed the dirt, it would have slowed it considerably and caused a noticeable decrease in the speed of the truck also causing the driver to feel movement forward in the driver’s seat. In cross-examination, Mr White said that driving over the bund even with no brakes would have provided the same sensation as braking but conceded it is possible that the driver did not notice that this had occurred. 85 Mr White also said that either the chock holder came into contact with the bund or the dirt built up from the bulldozer effect and pushed the chock holder back so as to break the bolts holding it to the truck. The bulldozing effect, according to Mr White, would have resulted in either greater deceleration or greater height of the truck above the haul road. Mr White could not say whether the driver would have heard the scraping and rocks hitting the front of the truck as the dirt was displaced. 4. CONSIDERATION Was there a valid reason for Frethey’s dismissal? [121] The CFMEU submits that in deciding whether there was a valid reason for the dismissal, the Commission must determine: whether Mr Frethey broke his tooth; and if so was he aware that he had driven over the bund. If the Commission is satisfied that Mr Frethey did break his tooth and that he was not aware that he had driven over the bund, then it is submitted that there was no valid reason for the dismissal. In my view there is more to the question of valid reason than is encompassed in the matters asserted by the CFMEU. [122] On the basis of the evidence I am satisfied of the following facts: • At or around 1.05 am on 10 October 2015, RD125, while travelling down the Western Terrace haul road, slowed from 41 km per hour to 6 km per hour and changed direction veering to the right and left before continuing down the haul road; • The front of RD125 contacted the bund and the vehicle travelled for 30 – 40 metres along the bund; • The bund was at least 1.5 metres high for most of the distance that the truck travelled along the bund and also had delineators that stood on top of it an additional 1.8 metres above the highest point of the bund; and • As a result the bund was compressed to a height of just over .5 metre where the truck contacted it and at least two and possibly three delineators were dislodged and bent. [123] The bund was a critical safety control and the damage to the bund put persons driving vehicles down the road at risk. An operator who knowingly damaged the bund and failed to report the damage, would commit a serious breach of the Mine’s policies and procedures and this would be a valid reason for dismissal. [124] After considering all of the evidence in great detail, I have concluded that it is probable that Mr Frethey knew that he had damaged the bund or at very least, that his vehicle had sustained damage that he was required to report. Mr Frethey’s evidence to the Commission and his explanation for his failure to notice that he had damaged the bund and/or RD125 contains significant inconsistencies. The nature and extent of those inconsistencies compels me to conclude that Mr Frethey was at best not entirely forthright and at worst dishonest in giving evidence to the Commission and during the investigation of the events of 9 – 10 October 2015. [125] I accept that Mr Frethey suffered an injury to a tooth at some point on the night shift of 9 – 10 October 2015. However, I do not accept that Mr Frethey was entirely honest about this injury for the following reasons. There was significant inconsistency about the nature of the injury and when and where it occurred. Mr Frethey stated in the investigation and in his evidence to the Commission that he broke an incisor tooth and that this injury occurred as a result of biting an apple while he was driving RD125. Initially Mr Frethey said that the tooth broke as he was approaching an intersection. In cross-examination Mr Frethey said that the tooth broke when he was driving down a relatively steep ramp. Mr Frethey also said in his statement that he broke a tooth and under cross-examination, changed his story and stated that a cap on the tooth broke off. [126] Further, there is inconsistency in the statements that Mr Frethey made about which tooth broke. Mr Mathieson’s evidence, as documented in his report of the injury prepared at the time he examined Mr Frethey, is that Mr Frethey said that he had broken a molar and that the injury occurred during second crib. I find it improbable that Mr Mathieson would have made such significant errors in his report. The assertion that Mr Frethey did not take a second crib break in his shift was made to Mr Mathieson in cross-examination and Mr Frethey did not give evidence about this matter. Regardless of whether Mr Frethey told Mr Mathieson that the tooth broke during second crib, what is clear is that Mr Frethey did not tell Mr Mathieson that the tooth broke while he was operating a truck on the haul road and that the pain caused him to lose focus for 5 – 10 seconds. [127] It is also notable that during the telephone discussions with Mr Jensen on 13 and 14 October and in the first written statement provided by Mr Frethey to Mr Jensen on 14 October 2015, there is no mention made about a broken tooth or a loss of focus while driving RD125 during the night shift on 9 – 10 October 2015. This omission is significant given that Mr Jensen had asked whether there was any incident that occurred during Mr Frethey’s night shift on 9 - 10 October 2015 and that Mr Frethey alleges that his work colleagues had already warned him that Anglo believed he had run over a centre bund. It is also significant given Mr Frethey’s evidence to the Commission that the pain from the injured tooth caused him to completely lose focus for 5 – 10 seconds. It would be expected that an experienced operator such as Mr Frethey would have reported this loss of focus at the point it occurred or at very least, when questioned about whether there was any incident that occurred on the night shift when the tooth broke. [128] Even if the tooth broke at the time and in the manner asserted by Mr Frethey, I do not accept that it prevented him from noticing that the truck he was driving had contacted the centre bund on the haul road. The evidence establishes that the truck dislodged a significant amount of dirt by having a bull-dozing effect as it travelled along the bund for a distance of 30 – 40 metres. The bund was compressed from a height of at least 1.5 metres to .5 of a metre. The dirt was pushed up under the front of the truck or to the side. It is more probable than not that the impact of the dirt slowed the truck. Mr Dixon said that he did not observe skid marks at the scene. Notwithstanding that a water truck had gone past and other trucks had driven on the haul road, Mr Dixon was adamant that no other tyre tracks were pointing straight at the bund and I accept his evidence. Even if Mr Frethey did apply the brakes, the dirt was still bull-dozed by the truck and must have slowed its speed. I also accept Mr White’s evidence which in simple terms is that the dirt either slowed the truck or lifted it up and that either result would have been noted by a reasonably competent operator. [129] Mr Frethey also made several inconsistent statements about the braking that he applied. In his witness statement Mr Frethey said that he pulled on the retarder to slow himself down. In his response to the show cause letter, Mr Frethey said that he also thinks he applied the service brake as well. Mr Jensen states that Mr Frethey told him that he thinks that he “slammed on the brakes”. Mr McDougall said that the deceleration of the truck from 41 to 6 km per hour could have been achieved by using the vehicle’s braking system. I think it improbable that the retarder alone could have slowed the truck to the extent that occurred in the short space of time. If I accept Mr Frethey’s evidence in his witness statement that he applied the retarder, then the truck must also have been slowed by the dirt. [130] Notwithstanding a broken tooth and the pain and distraction it may have caused, I am unable to accept that Mr Frethey did not notice that the truck had contacted the bund. Even with the added factor that the incident occurred at night, it is improbable that an experienced operator would have failed to notice the dirt being pushed up in the manner that must have occurred, the resulting slowing of the truck (even allowing for braking) and other signals such as the tilting of the truck and the changes to the throw of its headlights. If the dirt did not slow the truck then it lifted the truck. The attempt – during cross-examination of witnesses for Anglo – to introduce the proposition that the bund was comprised of a softer substance known as GOB was not convincing. The composition of the bund included a significant amount of rock and I accept the evidence of Anglo’s witnesses on that point. It is improbable that the distraction of a broken tooth, which on Mr Frethey’s evidence caused him to lose focus for 5 to 10 seconds, was such that Mr Frethey would not have noticed that the truck he was driving had run up onto the bund and bulldozed a significant amount of dirt before coming down off the bund at an intersection. [131] If, as he states in his evidence, Mr Frethey completely lost focus and took 5 – 10 seconds to gain control of his senses, he should have stopped the truck rather than driving on to the shovel before deciding to park the truck. [132] Mr Frethey’s attempts to suggest that there was damage to the front of RD125 before he started to operate it were also completely unconvincing and there was inconsistency between various statements made by Mr Frethey on this point. In his witness statement to the Commission, Mr Frethey said that on performing his pre-start checks on 9 October 2015 he noted that the chocks were “ worn and damaged ”. On the pre-start checklist form that Mr Frethey said he completed on 9 October 2015 and which he handed to Mr Jensen on 3 November 2015, Mr Frethey noted that the bolts holding the brackets to the truck were broken and repeated this in a written statement he provided to Mr Jensen on 14 October 2015. In my view, it is improbable that Mr Frethey would have taken the time on 9 October 2015 to photograph hydraulic hoses which he also claimed were damaged and poorly patched, and not photograph bolts which he asserts were broken. [133] It is also notable that in another part of his witness statement and in his oral evidence to the Commission, Mr Frethey said that the damage to the bolts and the chock holder was wear and tear. This is not an apt description of broken bolts and certainly not a description that would be expected from an experienced operator. Further, Mr Frethey said that as the bolts were already worn they could have sheared off as a consequence of normal operation of the truck when he did the two loads after breaking his tooth rather than as a result of the truck contacting the bund. [134] Mr Frethey’s explanation for not reporting the damage he alleges that he observed on 9 October 2015 to a supervisor before starting to operate the truck is also not convincing. If Mr Frethey was not able to contact Mr Dixon, he could have attempted to contact Mr Barnes to report the matter. This is what Mr Frethey did when he reported the injury to his tooth some hours later. Having observed Mr Dixon and Mr Barnes giving their evidence, I think it unlikely that either of them would have required Mr Frethey to operate a truck which had broken bolts holding a bracket to the front of the truck or that Mr Frethey would have had any concern about raising a genuine safety issue such as broken bolts had he observed that they were broken. I also found Mr Frethey’s evidence that he did not know what size the bolts holding the brackets to the truck were as he had never taken much notice of them, to strain credibility. If Mr Frethey could note that they were broken or had sustained wear and tear, he must have known the size of the bolts and his failure to answer a simple question about this in cross-examination indicates that he was attempting to deflect the focus on the source of damage to the bolts and the bracket – that he drove the truck into the bund. [135] It is also the case that the truck was in the maintenance workshop for the shift immediately prior to the night shift on 9 – 10 October 2015. If the bolts were broken or damaged or were showing significant wear and tear it is probable that the tradesperson working on the vehicle would have noted this. Further, I am of the view that Mr Frethey’s evidence about the damage to the front of the truck including the dirt and rocks in and around the chock holders and the headlights that were observable in the photographs taken by Mr Dixon after the truck had contacted the bund, was not credible. Mr Frethey said that the front of the truck in the photographs looked like any other truck on a mine site. This is at odds with the evidence that the presence of dirt and rocks was of such significance that the operator of the truck after Mr Frethey took the truck to the maintenance workshop after observing damage to the chock holder and caught up dirt on the front of the truck. I am also of the view that the pre-start checklist and maintenance records speak for themselves and the fact that the operators and the maintenance employees who worked on RD125 before and after the incident were not called to give evidence, does not lessen the significance of those documents or the conclusions that I have drawn from them. [136] There is also the matter of the two versions of Mr Frethey’s response to the “show cause” letter. In the version given to Anglo, Mr Frethey states that after he broke his tooth he got out of the truck and walked around it trying to take his mind off the pain. In the version appended to his witness statement, Mr Frethey states that he also looked around the truck and could not see any damage other than what he had reported in his pre-start checklist form. When cross-examined about this inconsistency, Mr Frethey confirmed in his oral evidence that he actually did walk around the truck and maintained that he did not observe any damage other than what he had previously observed during the pre-start. [137] It is highly improbable that the truck was not damaged at the point Mr Frethey walked around it. The truck hit the bund in the manner described above. After stopping the truck and walking around it Mr Frethey did two more loads and then parked the truck and left the workplace. The truck was not operated after that point because the next operator noted the damaged chock holder bracket and took the truck to the maintenance workshop where it was noted that the truck had sustained damage including three mounting bolts being sheared off and the chock holder being twisted. The only possible options for that damage to have occurred – even if Mr Frethey’s evidence is accepted – is when the truck hit the bund or during the two loads undertaken by Mr Frethey before he parked up the truck and left the workplace. It is highly improbable that the damage occurred while those final two loads were undertaken by Mr Frethey. This means that the truck must have been damaged when Mr Frethey walked around it after it had hit the bund. [138] The omission of this statement that Mr Frethey looked around the truck and did not observe damage from the version given to the Company is significant. The omitted statement and Mr Frethey’s entirely unconvincing evidence about the matter leads me to conclude that it is probable that Mr Frethey was either looking for damage knowing that he had contacted the bund or was concerned at what might have occurred during his loss of focus for 5 – 10 seconds while operating the truck. Even if Mr Frethey was motivated to walk around the truck to distract himself from the pain of his tooth, it is improbable that he would not have noticed the broken bolts. If he did not then his negligence in checking for damage to RD125 is inexcusable in circumstances where he had lost focus for 5 -10 seconds while operating the truck. [139] The inconsistencies in Mr Frethey’s evidence about the damage to the truck make it more probable than not that the bolts holding the brackets to the front of the truck broke when Mr Frethey drove the truck into the bund, as a result of the truck contacting the bund and bulldozing dirt with sufficient force for the bolts to shear off. I am also of the view that the inconsistencies in Mr Frethey’s evidence are so significant that it is more probable than not that he knew that he had contacted the bund at the point when he drove the truck along the top of the bund and/or Mr Frethey realised that the truck was damaged when he parked it up after it had hit the bund. The failure to report any of these events was a serious breach of Anglo’s workplace health and safety procedure and provided a reasonable basis for Anglo to conclude that Mr Frethey was not honest in the investigation of the incident. [140] It is also of concern that with full knowledge of the case Anglo advanced against him in these proceedings, including the expert report of Mr White, Mr Frethey continued to downplay the severity of the incident and to make assertions that were unsustainable. In this regard Mr Frethey maintained that he “clipped the bund” with the rear wheels of the truck rather than collided with it. In the face of photographic evidence of rocks lodged in the front of RD125 – which was accepted by his own expert witness Mr McDougall as conclusive that RD125 contacted the bund and compressed the dirt with its front and back wheels – Mr Frethey maintained that the truck when driven by him did not collide with the bund. By no stretch of the imagination could a truck driven 30 metres on the top of a bund compressing and bulldozing at least a metre of dirt in its path, be described as having “clipped” the bund. Mr Frethy’s evidence that it was only the rear wheels that contacted the bund strains credibility and is completely at odds with the evidence of his own expert evidence, Mr McDougall. [141] Further Mr Frethey’s contention that the bund was not the correct height and had not acted as a critical safety control by stopping his truck, strained credibility. The truck driven by Mr Frethey did not go over the top of the bund to the other side of the haul road and the bund was at least 1.5 metres high. In short, the bund did act as a critical safety control. The fact that the bund was built to a greater height when it was repaired is irrelevant and does not change the fact that the height of the bund was adequate for its purpose as a critical safety control. [142] I also note that Mr McDougall’s evidence was directed at attempting to establish that evidence put forward by Anglo in the “show cause” process to support the allegation that RD125 contacted the bund, was inconclusive. This is surprising given Mr Frethey’s acceptance during the show cause process that it was RD125 driven by him that contacted the bund. It was only in cross-examination when Mr McDougall was shown photos of the front of RD125 taken by Mr Dixon after the incident, that he accepted that the truck did contact the bund. Those photos were appended to Mr Dixon’s witness statement which was filed in advance of the hearing and I can see no reason why Mr McDougall was not shown those photos before he gave his evidence. [143] I have considered the expert evidence about the tilt of the truck as it went up the bund and Mr McDougall’s evidence that it is a similar angle to that experienced when the truck turns a corner. However, the truck was not turning a corner when Mr Frethey claims that his tooth broke. On Mr Frethey’s evidence, the tooth broke when he was driving down a ramp or when he was approaching a corner. For the reasons set out above, there is nothing in Mr McDougall’s evidence that compels me to a different view. Mr McDougall did not have all relevant information when he prepared his report and did not know the size of the truck. Further he had not considered the photographs tendered through Mr Dixon and appeared to have directed his report to establishing that it could not be proven that RD125 did contact the bund. [144] Given that Counsel for Anglo did not tender the original pre-start checklist books until after Mr Frethey had given his evidence and did not cross-examine him on the basis of the original books, I have not placed significant weight on the somewhat strange co-incidence of the missing white form in the partly completed book around the time that the incident occurred. It is surprising that it was not noted in the investigation. In any event, the fact that the originals of the books were not tendered before Mr Frethey was cross-examined and that the matter of the missing white form was not put to him, results in a situation where I have disregarded this matter. [145] However, as previously noted, I have given consideration to the fact that the white form given to Mr Jensen by Mr Frethey contains assertions about the condition of RD125 before Mr Frethey started to operate it, which are inconsistent with his evidence in the Commission and other statements that he made during the investigation. [146] On balance, I am satisfied and find that there was a valid reason for Mr Frethey’s dismissal – Mr Frethey was aware that he had driven his truck onto a safety bund damaging both the truck and the bund and failed to report it or failed to report damage to his truck which he must have noticed when he parked it up after contacting the bund. I am also satisfied that Mr Frethey was not forthright during the investigation of the incident. Mr Frethey was also not forthright in his evidence to the Commission and some aspects of that evidence were potentially dishonest. Was Frethey notified of the reason for his dismissal? [147] I am satisfied and find that Mr Frethey was notified of the reason for his dismissal in the “show cause” letter and the letter that gave effect to the dismissal. I do not accept the submission that deficiencies in the investigation carried out by Anglo resulted in a situation where Mr Frethey was not provided with adequate notification of the reasons for his dismissal. After the incident, Mr Frethey was absent from the workplace for several weeks and was receiving treatment for his broken tooth. Mr Jensen made two attempts to arrange meetings with Mr Frethey to discuss the damage to the bund and the truck. When Mr Frethey was unable to attend because he was receiving treatment or had family commitments on his scheduled days off, Mr Jensen acted in an appropriate manner by waiting for Mr Frethey to return to work. On the day of his return, Mr Jensen met several times with Mr Frethey and gave him a show cause letter. That letter clearly set out the allegations against Mr Frethey. Was Frethey given an opportunity to respond to the reasons for his dismissal? [148] I am satisfied that Mr Frethey was given an opportunity to respond to the reasons for his dismissal. The show cause letter set out those reasons and Mr Frethey responded to it in writing and at a meeting. Mr Frethey’s explanations were considered and were not accepted. For the reasons set out above, I take no issue with Anglo’s conclusions about the incident and Mr Frethey’s conduct. [149] It is true that the investigation process left something to be desired. A number of matters, such as the allegation that Mr Frethey had falsified the pre-start checklist and that there was doubt about the impact of the injury to his tooth, were not put to Mr Frethey. It is also the case that Mr Frethey was not told in the days after the incident that the investigation being conducted by Mr Jensen included allegations that he had damaged the bund and failed to report it. Significantly, there was no witness statement or interview with Mr Frethey prior to the preparation of the bulk of the report. [150] However, in the discussions and the show cause process, the substance of the allegations was outlined and Mr Frethey had an opportunity to respond to those allegations. I do not accept the submission that Mr Jensen was deceitful in the manner in which he conducted his investigation. I also do not accept that in the circumstances of Mr Frethey’s absence from work after the incident, Mr Jensen can be said to have failed to follow the matter up with Mr Frethey. Mr Jensen made two attempts to arrange a meeting with Mr Frethey. [151] I do not accept the submission that at the end of the meeting with Mr Frethey on 3 November 2015, the suggestion that Mr Frethey was covering his tracks about the damaged truck was redundant because Mr Frethey admitted that it was him driving the truck. The issue was not only whether Mr Frethey was driving the truck. Of greater significance was the belief that he had known that the bund was damaged and failed to report it. That allegation was clearly conveyed in the “show cause” letter. [152] Mr Jensen said that he did not complete his report until after he had interviewed Mr Frethey on 3 November 2015. Even if the report was substantially completed before the discussions with Mr Frethey on that date, the report was not the only material on which the decision to dismiss Mr Frethey was based. Rather the report formed a basis for the “show cause” letter which set out the allegations. Mr Frethey had an opportunity to respond to those allegations and availed himself of that opportunity. I do not accept that Mr Power’s decision to dismiss was coloured by any incorrect statements in the report that Mr Frethey denied hitting the bund. The issue was that Mr Frethey claimed not to have been aware that he hit the bund and Mr Power ultimately did not accept that this was true. Was there an unreasonable refusal by Anglo to allow Frethey to have a support person present to assist at any discussions relating to dismissal? [153] Mr Frethey had the assistance of a support person at discussions relating to the dismissal. If the dismissal related to unsatisfactory performance —whether Frethey had been warned about that unsatisfactory performance before the dismissal? [154] The dismissal was not based on unsatisfactory work performance and this criteria is not relevant. Did the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise impact on the procedures followed in effecting the dismissal? [155] I accept that the investigation of the incident involving Mr Frethey was not carried out strictly in accordance with Anglo’s policy and procedure in relation to the investigation of safety breaches. However, in the present case, any procedural defect does not over-ride the substantive matters which provided a valid reason for Mr Frethey’s dismissal. Are there any other matters that the FWC considers relevant? [156] In my view it is relevant that Mr Frethey had previously been warned about the implications of failing to follow Anglo policies and procedures. Whether or not the earlier warnings were valid, Mr Frethey knew that any breach of those policies and procedures would have implications for his future employment. [157] I am also of the view that notwithstanding the procedural issues with the investigation process conducted by Mr Jensen, Anglo has put its case to the Commission as to why Mr Power concluded that Mr Frethey had engaged in misconduct and not been forthright in the investigation of the incident involving RD125 on 10 October 2015. Anglo has also put its case as to why Mr Power believed that Anglo could not be confident that Mr Frethey could work safely and in accordance with its code of conduct and policy and procedures going forward. [158] Mr Frethey has advanced his case in the hearing of his unfair dismissal application as to why he asserts that this conclusion was wrong and why the Commission should accept his version of events. For the reasons set out above, I do not accept Mr Frethey’s contentions. I have considered Mr Frethey’s evidence about the impact that the dismissal has had on his personal and financial circumstances. However those matters do not outweigh the fact that Mr Frethey was involved in a significant safety breach and was not honest and forthright in the investigation of that breach or in his evidence to the Commission. 5. CONCLUSION [159] Mr Frethey’s dismissal was not unfair and his application for an unfair dismissal remedy is dismissed. An Order to that effect will issue with this Decision. DEPUTY PRESIDENT Appearances : Mr C Newman for the Applicant. Mr B Rauf for the Respondent. Hearing details: 2016. 27 and 28 July. Rockhampton 26 August. 13 October. Brisbane. 1 Exhibit 1 Witness Statement of Brett Frethey; Exhibit 2 Reply Witness Statement of Brett Frethey. 2 Exhibit 5 Statement of Clinton Selwyn Ross Dixon. 3 Exhibit 7 Statement of Donovan Clifford Bellingham. 4 Exhibit 8 Statement of Mr Timothy Ross White. 5 Exhibit 10 Statement of Tony Power. 6 Exhibit 12 Statement of Christopher Edward Beer. 7 Exhibit 13 Statement of Mark Alan Jensen. 8 Exhibit 18 Statement of Niel Gordon Mathieson. 9 Exhibit 17 Witness Statement of Kr Kiran Kumar. 10 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204. 11 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. 12 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C. 13 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J. 14 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000. 15 Culpeper v Intercontinental Ship Management (2004) 134 IR 243 ; [2004] AIRC 261 ; Print RP 944547. 16 North v Television Corporation Ltd (1976) 11 ALR 599. 17 Bista v Glad Group Pty Ltd [2016] FWC 3009 . 18 [1999] FCA 1836 ; (1999) 94 FCR 561. 19 Ibid at 572. 20 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ. 21 Transcript PN115 – 122. 22 Transcript PN141 – 148. 23 Exhibit 1 Statement of Brett Frethey. 24 Exhibit 1 – paragraph 57 – 60. 25 PN552 and 574. 26 PN565-575. 27 Exhibit 5 –Statement of Clinton Selwyn Ross Dixon. 28 PN1352-1353. 29 Exhibit 18 – Statement of Neil Mathieson. 30 Exhibit 18. 31 Exhibit 17. 32 PN1297-1301. 33 PN1442 – 1476. 34 Exhibit 1 Statement of Brett Frethey paragraph 50s and 71. 35 Exhibit 16. 36 Exhibit 13 Statement of Mark Jensen Annexure “MJ-20”. 37 PN276 – 288. 38 Statement of Mark Jensen paragraph 35 – 36 and Annexure “MJ-5”. 39 Exhibit 5 Statement of Clinton Dixon Annexure “CD-5”. 40 Exhibit 5 Statement of Clinton Selwyn Ross Dixon Annexures “CD-1” and “CD-2”. 41 Ibid. 42 Exhibit 13 Statement of Mark Jensen Annexure “MJ-6”. 43 Exhibit 13 Statement of Mark Jensen Annexure “MJ-8”. 44 PN396 – 409. 45 Exhibit 13 Statement of Mark Jensen Annexure “MJ-7”. 46 PN328. 47 Exhibit 13 Statement of Mark Jensen Annexure “MJ-19”. 48 PN342. 49 PN343 – 347. 50 PN377 – 383. 51 Exhibit 1 Statement of Brett Frethey paragraph 53. 52 PN483. 53 Exhibit 14. 54 Exhibit 15. 55 PN533-538. 56 Exhibit 16. 57 Exhibit 13 Statement of Mark Jensen Annexure “MJ-20”. 58 PN537. 59 PN539 – 540. 60 PN542 – 549. 61 PN3116-3120. 62 PN2900-2905. 63 PN2888-2894. 64 Exhibit 13 Statement of Mark Jensen Annexure “MJ-22”. 65 PN3213 – 3219. 66 Exhibit 10 Statement of Tony Power Annexure “TP-5”. 67 Exhibit 10 Statement of Tony Power Annexure “TP-6”. 68 Exhibit 10 Statement of Tony Power Annexure “TP-7”. 69 Exhibit 10 Statement of Tony Power Annexure “TP-8”. 70 Exhibit 10 Statement of Tony Power Annexure “TP-10”. 71 Exhibit 1 Statement of Brett Frethey Annexure “BF-5”. 72 PN395. 73 PN376; PN446-447. 74 Exhibit 12 Statement of Christopher Edward Beer Annexure “CB-1”. 75 PN673-678. 76 PN682-684. 77 PN1480 – 1490. 78 Exhibit 5 Statement of Clinton Selwyn Ross Dixon Annexure “CD-1”. 79 PN582; PN591; PN621-623. 80 PN622-625. 81 PN671-672. 82 PN698 – 700; PN706 – 707. 83 Exhibit 1 – BF6 . 84 PN1099. 85 PN1903. Printed by authority of the Commonwealth Government Printer <Price code G, PR590398>