Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - valid reason for dismissal - long serving employee - no prior warnings or disciplinary action - dismissal harsh - reinstatement appropriate.

[1] After working for Centennial Myuna Pty Ltd (Centennial) and its predecessor for 40 years, Mr Geoffrey Dyson, an Undermanager with an impeccable safety and performance record, was summarily dismissed as a result of his involvement in a safety incident in which a worker strained his right leg. Mr Dyson contends that his dismissal was harsh, unjust and unreasonable. Centennial denies those allegations.

[2] I heard Mr Dyson's unfair dismissal case against Centennial on 22 and 23 September 2020. Mr Dyson gave evidence in support of his case. He also adduced evidence from a former work colleague, Mr Adam Cowen, Deputy and employee representative of the Colleries Staff Division of APESMA. Mr Cowen attended a number of meetings with Mr Dyson as his support person in the period leading up to his dismissal. Centennial adduced evidence from the following witnesses:

• Mr John Turner, Executive General Manager Northern Operations. Mr Turner is responsible for overseeing the safe, efficient and productive operations of Centennial Coal Company Limited's (Centennial Coal) mining operations in the northern region of New South Wales.

• Mr Peter Smith, General Manager Health, Safety, Training and Environment. Mr Smith is responsible for overseeing work health and safety across all of Centennial Coal's operations and across all of its mines.

• Mr Rod Leggett, Production Manager at Centennial's Myuna mine. Mr Dyson reported to Mr Leggett.

• Mr Derek Harrison, Compliance Manager at Centennial's Myuna mine.

[3] Mr Dyson worked for Centennial at its Myuna underground coal mine, which is located in Wangi Wangi, New South Wales. Mr Dyson is 61 years old and has spent his entire working career in the coal mining industry. He commenced an electrical trades apprenticeship at the Wallarah mine on or about 12 December 1976 with Coal and Allied. Mr Dyson completed his apprenticeship in about 1980 and became a qualified electrical fitter mechanic. He commenced employment with Powercoal on 1 December 1980 as an Electrician and was originally based at the Munmorah mine. In the mid 1980's Centennial Coal acquired Powercoal's businesses and Mr Dyson's employment transferred across to Centennial. His service was recognised by Centennial as having commenced in 1980. In about June 1986 Mr Dyson qualified as a Deputy. He then worked as a "step-up" Deputy at Munmorah for a few years. A "step up" is a situation where, from time to time, an employee such as Mr Dyson steps-up from his usual role as Electrician to work in the role of Deputy to cover another employee who is absent from work for some reason. On about 12 April 2001 Mr Dyson was successful in meeting the requirements to qualify as an Undermanager and was given an Undermanager certificate of competency. Mr Dyson undertook a four year diploma through TAFE to qualify for the position of Undermanager. On 14 June 2002 Mr Dyson was appointed to the statutory position of Undermanager pursuant to the Coal Mines Regulation Act 1982, Coal Mines (General Regulations) 1999 and the Coal Mines (Underground) Regulation 1999.

[4] On 18 July 2005 Mr Dyson transferred across to the Myuna underground mine and commenced his role as an Undermanager. At that time Mr Malcolm Yule was the Production Manager of the Myuna mine and Mr Terry O'Brien was the Mine Manager. Mr Dyson remained in the position of Undermanager until his dismissal on 21 April 2020. At the time of Mr Dyson's dismissal Mr Yule was the Mine Manager of the Myuna mine.

[5] The Myuna mine produces thermal coal for use at the nearby Eraring power station. The Myuna mine operates 24 hours a day, 7 days a week. It operates over three shifts per day from Monday to Thursday and two shifts per day from Friday to Sunday. Mr Dyson was employed on permanent afternoon shift.

[6] In his role as Undermanager, Mr Dyson was responsible for supervising mining operations on the shift on which he worked. An Undermanager is responsible for the overall safety of the mine and the persons working within it whilst on shift, and is required to give directions and exercise responsibility to ensure that tasks are undertaken safely. An Undermanager is required to work closely with the shift Deputy(s) who have their own independent obligations in relation to safety. A Deputy is often responsible for the more hands on management and supervision of mining workers. The Deputy reports to the Undermanager.

[7] Mr Dyson's rostered hours of work at the Myuna mine were from 2pm to midnight, but he often started early or finished late, depending on the requirements of the job.

[8] At about 4:30pm on 7 April 2020 Mr Dyson went down into the Myuna mine for the purpose of undertaking inspections and checking on the crews working at that time. After inspecting work undertaken on the 9 east production panel, Mr Dyson proceeded to the 1151 production panel. The Deputy on the 1151 production panel was Mr John McCarty. Mr Dyson worked with Mr McCarty on afternoon shift for about 10 years leading up to 7 April 2020.

[9] During his inspections around the 1151 panel, Mr Dyson noticed that six of the dust bat bags hanging from the roof of the underground mine were damaged. Dust bat bags are used as part of an explosion suppressant system. They are filled with stone dust and hung from the roof of the mine in rows (usually of 13) across a roadway. If there is an explosion in the mine, the explosion breaks the bag which disperses stone dust for the purpose of extinguishing any flames or fire caused by the explosion. Bat bags weigh about 4kg; they are about 20-30cm in width and about 30-40cm long.

[10] The width of the roadway across which the bat bags were hung is about 5.5m. The height of the roof is about 2.7m. A conveyor runs down the length of the roadway. Its purpose is to transport coal to the surface of the mine. The belt on the conveyor is about 1.2m wide. To the side of each edge of the belt is a gap and then a metal railing (known as a stringer). The stringer is apart from the belt by about 15cm. The height of the conveyor is about 1.2m. The overall width of the conveyor structure including the stringers is about 1.9m.[1]

[11] There is no dispute that four of the six damaged bat bags were located to the side of the conveyor and could be easily accessed by placing a ladder beneath them. There is a dispute about the location of the final two damaged bat bags. I address that dispute in paragraphs [23] and [24] below.

[12] After identifying that the six bat bags were damaged and needed replacing, Mr Dyson completed what is known as a SLAM; the acronym stands for Stop, Look, Assess and Manage. It is part of a safety management system used at the Myuna mine.

[13] Both parties contend that the task of replacing damaged bat bags is not a complex one. I agree. It involves unhooking the damaged bat bags and replacing them with new bat bags.

[14] Mr Dyson began looking for Mr McCarty to assist him to find a ladder to use in the task of replacing the damaged bat bags. On the way to look for Mr McCarty, Mr Dyson saw Mr David McKinnon, who is also an Undermanager but he was undertaking other duties on 7 April 2020. Mr Dyson told Mr McKinnon that some bat bags needed replacing. Mr McKinnon offered to help. Mr Dyson then found Mr McCarty and asked him where a ladder was located because he needed a ladder to replace six damaged bat bags. Mr McCarty told Mr Dyson he knew where a ladder was located. Mr McCarty located a ladder. Mr Dyson located six new bat bags. They then met at the location of the damaged bat bags, together with Mr McKinnon. The ground at that location was a little bit wet and muddy, and partly uneven.[2]

[15] The ladder obtained by Mr McCarty was an A-frame step ladder. It was self-supporting. The ladder had about six steps and was about 1.6m high.

[16] Mr McCarty used the ladder to replace the four bat bags located on the roof and to the side of the conveyor. The ladder was then moved closer to the side of the conveyor for the purpose of replacing the final two damaged bat bags. Mr Dyson then said to Mr McKinnon and Mr McCarty, "I will walk up and turn off the belt switch at the tail end". The switch was located about 60m away. The belt starter was located about 480m away. In order to properly isolate the belt, it is necessary to go to the belt starter.

[17] When Mr Dyson left to walk to the belt switch, Mr McCarty was not on the ladder.

[18] Mr Dyson's purpose in walking to the belt switch to turn it off was to ensure the belt was not operating when Mr McCarty was on the ladder replacing the final two bat bags. Mr Dyson appreciated that there was a risk that Mr McCarty could fall off the ladder and come into contact with the belt when he was replacing the final two bat bags and he did not want the belt to be moving if that happened.[3]

[19] As Mr Dyson was walking to the belt switch, the belt stopped. Mr Dyson assumed that either Mr McCarty or Mr McKinnon had pulled the lanyard next to the conveyor belt to stop it. The lanyard next to the conveyor belt can stop the belt but it cannot restart it. Mr Dyson continued to walk to the belt switch. If the lanyard had been pulled, the belt switch should have been in the off position. Mr Dyson noticed that the belt switch did not appear to be fully in the off position. Mr Dyson turned the switch to the fully off position. He then stood next to the switch to ensure that nobody came past and turned it on.

[20] While Mr Dyson was standing next to the belt switch, he could not see Mr McCarty or Mr McKinnon; it was dark and he could only see their lights on their safety helmets. Mr Dyson then noticed a shuttle car pull up and it began to unload into the hopper. Mr Dyson waved his cap light at the operator for him to stop. The operator unloaded for about 30 seconds. After the operator stopped discharging his load, Mr Dyson heard the pre-start alarm for the conveyor belt. The pre-start alarm warns of the imminent commencement of the belt. Mr Dyson immediately turned to the belt switch to ensure it was in the off position and put his hand out to the switch to check it was off. Mr Dyson could not understand how the belt had been turned on. The belt was stopped a few seconds later. It was stopped by Mr McKinnon pulling on the lanyard.

[21] Mr Dyson then started walking back to where Mr McKinnon and Mr McCarty were positioned. As he arrived, Mr Dyson saw that Mr McCarty was holding his leg. Mr Dyson then said to Mr McKinnon, "What happened?" Mr McKinnon said, "He got on the belt." Mr Dyson responded, "What? Really?"

[22] As a result of his leg strain suffered on 7 April 2020, Mr McCarty was not able to undertake his full duties for a number of months.[4]

[23] Mr Dyson gave evidence that the final two damaged bat bags were in a different row to the other four damaged bat bags, and of the 13 bat bags hanging in that row across the roof of the mine the final two damaged bat bags were in positions 8 and 9 (counting from left to right) of the 13 bat bags. Using a photograph taken by Mr Smith after the incident[5] and having regard to the angle at which that photograph was taken, I find that the bat bag in position 9 was located approximately above the stringer on the side of the conveyor belt and bat bag 8 was located either above the gap between the belt and the stringer or above the edge of the belt.[6] There was no attempt in the investigation undertaken by Centennial to identify with any precision which bat bags were damaged and required replacing.[7] Notwithstanding that, Centennial submits that I should find that the two bat bags in question were located at positions 5 and 6, or 6 and 7, (counting from left to right) of the 13 bat bags.[8] In support of this submission, Centennial points to notes taken during the investigation where comments were made about the bat bags in question being "above the belt".[9] Centennial also relies on Mr Dyson's first witness statement in which he said that the width of the conveyor belt was about 1.2m. Mr Dyson agreed in cross examination that this width of 1.2m did not include the stringers on the side of the belt or the gaps between each side of the belt and the stringers. Mr Dyson also said in his witness statement (at [49]) that the final two bat bags were "hanging over the conveyor belt". Centennial submits that this evidence should be interpreted to mean that the two final bat bags were hanging over the conveyor belt, in the sense of being over the 1.2m width of the belt itself, which was in or near the centre of the conveyor structure having regard to the gaps and stringers on either side of the belt. Centennial also submits that Mr Dyson did not respond in his reply witness statement to Mr Smith's witness statement where he said (at [138]) that he tried to re-enact the incident and was "not able to reach the bat bags located directly above the centre of the conveyor belt while standing with both feet on the ladder". Centennial submits that it would have been simple for Mr Dyson to point out in his reply witness statement that Mr Smith's assumption that the bat bags were located above the centre of the conveyor belt was wrong. He did not do so. Centennial further submits that Mr Dyson gave evidence, for the first time, in cross examination about the precise location of the two bat bags in question.

[24] I prefer Mr Dyson's evidence that the final two bat bags were located in positions 8 and 9 over Centennial's contention that they were located at positions 5 and 6 or 6 and 7. First, Mr Dyson is the only person present at the time of the incident who gave evidence in these proceedings. Mr McCarty, who remains employed by Centennial, did not give evidence, nor did Mr McKinnon, who resigned shortly after the incident. Secondly, I consider that Mr Dyson was a credible witness. In cross examination he provided direct and responsive answers to the questions put to him and made numerous concessions, without argument or evasion, contrary to his interests. I will address those concessions when I consider the question of whether there was a valid reason for the dismissal. There were no significant inconsistencies in the evidence given by Mr Dyson. Thirdly, Centennial did not investigate the precise location of the two bat bags in question. Accordingly, there are no contemporaneous records from the interviews with Mr Dyson, Mr McCarty and Mr McKinnon as to their recollection of the precise location of the two bat bags. The difficulty with the contemporaneous notes to which Centennial points is that they repeatedly refer to there being six bat bags above or over the belt.[10] On any view of it, four of the six bat bags were not above the belt. This lack of precision in the notes is most likely explicable on the basis that Centennial never investigated the precise location of the bat bags in question, but now seeks on rely on the location of the final two bat bags to support its argument that Mr Dyson was being dishonest when he consistently said that he did not believe Mr McCarty would step onto the belt while replacing the final two bat bags. Fourthly, given that Centennial did not investigate the precise location of the final two bat bags and did not ask Mr Dyson about that issue until his cross examination, it is not fair to criticise him for giving evidence, for the first time, in cross examination that the two bat bags were in positions 8 and 9. Fifthly and importantly, the notes taken of interviews with Mr McCarty reveal that he told Centennial during the investigation that he "did not consider getting on the belt at the start of the process but the task just flowed into that"[11] and "it was a split second decision".[12] If the two remaining bat bags were truly over or near the centre of the belt, it would have been obvious to Mr McCarty (and everyone else present) when the ladder was moved to the side of the conveyor belt structure that Mr McCarty would have to stand on the belt to replace the final bat bags. Sixthly, although there is some merit to Centennial's argument that Mr Dyson's witness statement (at [49]), together with the other evidence to which it points, supports its contention as to the location of the two bat bags, Mr Dyson gave a slightly different account earlier in his witness statement (at [43]), where he said the final two bat bags were "above the walkway side of the conveyor belt". Further, Mr Dyson prepared his witness statement at a time where there had been no investigation of the precise location of the two bat bags in question and he was not aware of any contention by Centennial that the two bat bags were at positions 5 and 6, or 6 and 7, in the row of bat bags. Submissions to that effect were made for the first time in Centennial's closing oral submissions. Having regard to these contextual matters, I consider that the answers given by Mr Dyson when the question of the precise location of the two bat bags was squarely put to him in cross examination to be more reliable evidence than his witness statement. Finally, it is true that Mr Dyson did not respond to the parts of Mr Smith's witness statement where he recounted his attempt to re-enact the incident, but that is understandable, in my view, in circumstances where the attempt to re-enact the incident was, on Mr Dyson's account, based on a false premise, namely that the location of the bat bags were "directly above the centre of the conveyor belt", and Mr Dyson was not present during the re-enactment. Mr Dyson was present when Mr Turner attempted to simulate the dimensions of the conveyor and the height of the roof in the investigation meeting on 17 April 2020. Mr Turner asked Mr Dyson how Mr McCarty could have reached the bat bags without stepping on the conveyor. Mr Dyson responded directly that he thought Mr McCarty "would do all the bags from the ladder. There was no intent to get on the belt." Mr Dyson consistently maintained this position throughout the investigation and his evidence before the Commission.

[25] Mr Dyson gave evidence, consistent with his explanations to Centennial following the incident, that he did not expect Mr McCarty to stand on the conveyor belt while he was replacing the final two bat bags. Mr Turner did not believe those explanations from Mr Dyson,[14] nor did he believe that Mr Dyson was telling the truth about whether he had a discussion with Mr McKinnon when the task was being undertaken, and what that discussion was.[15] Mr Dyson told Mr Turner during the investigation that he did not recall having a discussion with Mr McKinnon about how they would replace the final two bat bags, other than Mr Dyson telling Mr McKinnon and Mr McCarty that he would walk up and turn off the belt switch at the tail end.

[26] I accept Mr Dyson's consistent evidence that he did not expect Mr McCarty to stand on the conveyor belt while he was replacing the final two bat bags. First, there is no dispute that Mr Dyson did not instruct or tell Mr McCarty to stand on the belt while he was replacing the final two bat bags. Secondly, the file notes of Centennial's discussions with Mr McCarty during the investigation support Mr Dyson's account. In particular, it is apparent from those notes that Mr McCarty told Mr Turner that the "job evolved", there was "no clear break" between being "off belt to on belt".[16] Mr McCarty also said that he "did not consider getting on the belt at the start of the process but the task just flowed into that"[17] and "it was a split second decision".[18] Thirdly, the location of the two final bat bags was not such that it would have been obvious to Mr Dyson that Mr McCarty would have had to step onto the belt to replace them. As earlier found, one of those bat bags was above the stringer to the side of the belt and the other was either above the gap between the belt and the stringer or above the edge of the belt. Even having regard to Mr McCarty's height of about 170cm, with a 1.6m ladder there was no difficulty in Mr McCarty reaching the roof and given the location of the final two bat bags it was not unreasonable for Mr Dyson to believe that Mr McCarty could have reached to the side and upwards to replace the final two bat bags, while remaining with three points of contact on the ladder. That is so notwithstanding Mr Dyson's concession that the way to be most stable when changing a bat bag is to be directly underneath the bat bag.[19] Fourthly, for the reasons earlier given, I consider that Mr Dyson was a credible witness.

[27] I also accept Mr Dyson's explanation to Mr Turner that he did not recall having a discussion with Mr McKinnon about how they would replace the final two bat bags, other than Mr Dyson telling Mr McKinnon and Mr McCarty that he would walk up and turn off the belt switch at the tail end. It was not suggested to Mr Dyson in cross examination that his evidence in relation to this topic was dishonest. No evidence was called from Mr McCarty, who remains employed by Centennial, or Mr McKinnon, who resigned shortly after this incident, to contradict Mr Dyson's account. I accept that Mr Dyson should have had a more detailed discussion with Mr McCarty and Mr McKinnon about how they would replace the final two bat bags and how they would address the risks associated with the task, but I am not satisfied on the evidence that additional conversations took place or that Mr Dyson was dishonest when he was asked about this issue.

[28] Mr Dyson initially gave evidence that he provided his SLAM book to Centennial after the incident on 7 April 2020 and never got it back.[20] Mr Dyson then accepted it was possible he may have been confused and he may have provided his SLAM book to Centennial on around 7 April 2020, which is how Mr Turner got a copy of it, and then it may have been given back to him and kept by him until he was stood down on 15 April 2020.[21] Later in his evidence, Mr Dyson said that after he came to the surface following the incident on 7 April 2020 he took a photocopy of the page from his SLAM book and attached it to the incident report form.[22] Mr Dyson says he then took the SLAM book and put it in his dirty clothes basket in the bathroom at work and it remained in that location until he gave it to Mr Townsend on about 15 April 2020.[23]

[29] At all times Mr Dyson has maintained that he only filled out the right hand page of his SLAM book prior to the incident (7 April 2020).[24] He has never asserted that he placed ticks in the left hand page of his SLAM book on 7 April 2020.[25]

[30] A copy of the relevant page from Mr Dyson's SLAM book was provided to Mr Turner on 15 April 2020. That copy has Mr Dyson's writing on the right hand page and no ticks on the left hand page.[26] The original SLAM book was tendered at the hearing.[27] The entry from the original SLAM book for 7 April 2020 has Mr Dyson's handwriting on the right hand page and ticks on the left hand page. Mr Dyson initially gave evidence that he recognised the ticks on the left hand page as being his[28] and later said they "appear to be mine".[29] Mr Dyson also accepted that the pen he used when filling out the SLAM book smudges and there were smudge marks corresponding to the ticks on the original of his SLAM book.[30] It was further accepted by Mr Dyson that it was possible that he had used the same pen when "doing those ticks".[31]

[31] Mr Dyson was asked to explain in cross examination how the original of the left hand page of his SLAM book for 7 April 2020 has ticks on it when the copy provided to Centennial did not have any ticks on that page. Mr Dyson was not able to offer any explanation for this discrepancy.[32] The following propositions were then put to Mr Dyson:[33]

"I put it to you, Mr Dyson, that the reason this document has ticks on it and the other document did not have ticks on it is that you put those ticks on it after the incident on the 7th?---No.

I put it to you that you did so in order to make it look as if you had completed a SLAM in a more comprehensive way than what you in fact did?---No."

[32] In re-examination Mr Dyson gave the following evidence in relation to the ticks:

"Yes. And after the day in question, so after 7 April, did you go back and put some further entries in the SLAM book?---I don't remember doing that, I don't.

Do you believe you did?---No, I don't believe I did."

[33] It is clear from Mr Dyson's evidence in relation to the SLAM book that he does not have a good recollection of what happened to his SLAM book after 7 April 2020. I accept it is possible that Mr Dyson may have placed ticks on the left hand page of his SLAM book after the incident on 7 April 2020. Regardless of that fact, however, I accept Mr Dyson's evidence that he did not put ticks on the left hand page of his SLAM book after the incident in order to make it look as if he had completed his SLAM in a more comprehensive way than what in fact he did. First, if Mr Dyson had done that, I consider it likely that he would, at some time, have contended that he completed the SLAM process correctly by placing ticks on the left hand page of the SLAM book prior to the incident. At no stage during the investigation process or during these proceedings has Mr Dyson advanced such a contention. To the contrary, from as early as the investigation meeting on 17 April 2020 Mr Dyson has always conceded that he did not complete the left hand side of the SLAM book at the time of the incident.[34] Secondly, I am satisfied on the basis of the evidence to which I have referred above that on the day of the incident Mr Dyson was aware that Centennial had either a copy of the relevant page from his SLAM book or had the original of his SLAM book for a period of time. In those circumstances, it would have been a foolhardy act for Mr Dyson to place ticks in his SLAM book at a later time for the purpose of trying to deceive Centennial into believing that he had completed that page of his SLAM book prior to the incident. I am satisfied on the evidence that Mr Dyson did not undertake such a foolhardy act.

[34] On 9 April 2020 Mr Dyson attended a meeting with Mr Yule, Mr Leggett and Mr Harrison as part of Centennial's investigation into the incident. The meeting lasted about 20 minutes. At the meeting Mr Dyson said that he did not know Mr McCarty was going to step on to the belt.[35]

[35] On 15 April 2020 Mr Dyson received a letter from Centennial, notifying him that he was to be stood down until midday on 17 April 2020.

[36] On 16 April 2020 Mr Dyson received a letter in which he was informed that the investigation into the incident on 7 April 2020 had concluded and it had been found that Mr Dyson was one of three statutory officials who had engaged in a process that was dangerous and in contravention of the "Site Energy Control Standard". Mr Dyson was informed that his actions amounted to a very serious safety breach and he was to be given an opportunity, in a meeting at midday on 17 April 2020, to "respond to the allegations and findings of the investigation, and to provide any other information as to why the Company should not proceed to terminate your employment".

[37] Mr Dyson attended the meeting on 17 April 2020, together with his staff representative, Mr Cowen. Mr Robert Culuccio, Senior Legal Officer of the Collieries Staff Division of APESMA, attended by telephone. Centennial was represented by Mr Turner, Mr Smith, Mr Yule, Mr Scott Ambrose, Human Resources Manager, and Mr Craig Gillard, General Manager of Human Resources. I accept Mr Dyson's evidence that he gave the following explanation at the meeting on 17 April 2020 as to why his employment should not be terminated:

• Mr Dyson explained that he had been an employee of Centennial for approximately 40 years and had always done his best for the safety of the employees that he had looked after. Mr Dyson emphasised that his service was lengthy in the mining industry and his track record was excellent. Mr Dyson explained that prior to his recent health problems, he had a good attendance record.

• Mr Dyson explained that he was upset about the incident and could not explain how the belt had restarted. He said there was never any intention for Mr McCarty to get onto the belt and he never directed him to do so. However, given that Mr McCarty had stood on the belt, Mr Dyson acknowledged a failure of communication and accepted that there had been a breakdown of process.

• Mr Dyson made the point that there was no specific procedure for hanging or replacing bat bags.

• Mr Dyson stated that he had been dealing with significant personal difficulties including the illness of his parents, the need for him to be the primary carer of his mother, and his separation from his long-term partner.

• Mr Dyson explained that he was in a high risk group for COVID-19 because of his previous illnesses and this was a concern for him when he returned to work on 30 March 2020.

• Mr Dyson said that he had significant illness as a result of the infection in his chest, the skin cancer removal and the recent infection of his foot associated with the lipoma removal.

• Mr Dyson also pointed out that he was due to go on holidays from the 9th of April 2020 but had agreed to cancel his leave at Mr Leggett's request. Mr Dyson said that this demonstrated his commitment to Centennial.

[38] Mr Smith asked Mr Dyson whether the extraneous matters raised by him had influenced his decision making on the day of the incident. Mr Dyson responded, "No".[36]

[39] There is no dispute that during the meeting on 17 April 2020 Mr Dyson frankly admitted that he "stuffed up" and "got it wrong".[37] Mr Smith gave evidence that when it was put to Mr Dyson that the Energy Control Standard required that he isolate fully, he said, "Well we didn't do that."[38] Mr Turner gave evidence in his witness statement that although Mr Dyson "stated that he had 'done the wrong thing', he did not acknowledge during the meeting (and refused to agree when the proposition was put to him) that there had been a breach of the Energy Control Standard or otherwise explained how it was he fucked up, demonstrating an understanding of what had gone wrong with how he supervised the task". Unlike other parts of Mr Turner's witness statement where conversations are set out in direct speech, including in relation to the meeting on 17 April 2020,[39] this part of Mr Turner's witness statement contains the bare conclusion that Mr Dyson "refused to agree when the proposition was put to him". Mr Dyson responded to this paragraph in Mr Turner's statement by disagreeing with the propositions that he did not regard the issue seriously and did not appreciate the significance of the issue.[40] No other witness contended that Mr Dyson refused to accept on 17 April 2020 that he had breached the Energy Control Standard. Mr Dyson was not cross examined about refusing to agree, on 17 April 2020, that he had breached the Energy Control Standard. There is no dispute that Mr Dyson readily made that concession when the direct question was asked of him in the meeting on 21 April 2020.[41] For all these reasons, I am satisfied on the balance of probabilities that during the meeting on 17 April 2020, Mr Dyson accepted that he had not isolated the conveyor belt and did not refuse to admit that he had breached the Energy Control Standard.

[40] Mr Smith contends that at the start of the meeting on 17 April 2020 Mr Dyson said he did not do anything wrong and towards the end of the meeting Mr Dyson changed his responses to statements such as "Yeah I stuffed up" and "I got it wrong".[42] Mr Dyson gave evidence that he does not recall saying that he did not do anything wrong.[43] Mr Dyson has always accepted that he admitted he made a mistake and apologised for it.[44] Mr Turner does not allege that during the meeting on 17 April 2020 Mr Dyson said he did not do anything wrong. Mr Turner contends that Mr Dyson repeatedly said during the meeting words to the effect that he had done the wrong thing.[45] The first entry in Mr Turner's notes from the meeting, after the words "Mal [Yule] intro", are "G.Dyson 'F' Up".[46] Mr Cowen's contemporaneous notes are consistent with Mr Turner's notes, in that, immediately after referring to Mr Yule's introduction, Mr Cowen wrote, "Geoff's - Stuffed up".[47] I consider the consistent contemporaneous notes made by Mr Cowen and Mr Turner to be a more reliable record of what Mr Dyson said towards the start of the meeting than Mr Smith's recollection. I find on the balance of probabilities that Mr Dyson did not say during the meeting on 17 April 2020 that he did not do anything wrong.

[41] Mr Dyson gave evidence that during the meeting on 17 April 2020 Mr Turner said:[48]

"I have had safety issues with you in the past. I could not be bothered dealing with the Union's lawyers shit about it so I just dropped it."

[42] Mr Turner gave evidence that he could not recall making this statement but acknowledged that he may have said words to that effect. Mr Turner accepted the issue was relevant to the discussion about Mr Dyson's approach to safety, which is why he says he may have said it.[49]

[43] Mr Cowen gave evidence that Mr Turner brought up the fact that he had previous concerns about the safety performance of Mr Dyson.[50]

[44] There is no dispute that Mr Turner did issue a warning to Mr Dyson in 2019 in relation to the way in which Mr Dyson dealt with an employee who had removed a filter from a vehicle, left it sitting in an unbagged state, and had not tagged out the piece of equipment. Mr Dyson disputed the warning and sought the involvement of his union to do so. Mr Turner accepts that he withdrew the warning.[51]

[45] Having regard to the matters set out in the previous three paragraphs, I find on the balance of probabilities that Mr Turner did make a statement to the effect of that which is set out in paragraph [41] above.

[46] Mr Turner took some notes during his meeting with Mr Dyson on 17 April 2020. Mr Turner had already interviewed Mr McCarty and Mr McKinnon earlier that day. About one third of the way down the first page of Mr Turner's notes from his interview with Mr Dyson, he wrote the words "blah blah". In cross examination Mr Turner accepted that Mr Dyson did not say the words "blah blah".[52] Mr Turner stated that he wrote those words because Mr Dyson was repeating himself.[53] I do not accept that evidence. It is plain from Mr Turner's evidence that he was unimpressed by the explanation being given by Mr Dyson and thought he was lying.[54] I am satisfied that Mr Turner's handwritten note ("blah blah") reflects that state of mind.

[47] On 21 April 2020 Mr Dyson attended a further meeting with the same attendees as the meeting on 17 April 2020. Mr Dyson was again asked to show cause why his employment should not be terminated. Mr Dyson gave reasons consistent with those given by him on 17 April 2020. At the meeting on 21 April 2020 Mr Turner asked Mr Dyson whether "what occurred was a breach of the Energy Control Standard?" Mr Dyson replied, "Yes, in hindsight. But I didn't know McCarty would get on the belt."[55] Mr Dyson also apologised again for his conduct and said he would comply in the future.[56]

[48] Centennial's management representatives broke away from the meeting on 21 April 2020 and had a discussion amongst themselves about the disciplinary outcome that should be imposed. Mr Yule, the Mine Manager at the Myuna mine, initially expressed the view that he thought the appropriate sanction for Mr Dyson should be a two week suspension and a warning.[57] Mr Turner disagreed. He argued that Mr Dyson should be dismissed. Mr Turner's view prevailed. In the end, Mr Yule agreed with Mr Turner and signed the letter of termination for Mr Dyson.[58] They returned to the meeting about 15 minutes later and gave Mr Dyson the letter of termination.

[49] As Mr Dyson and Mr Cowen were leaving the meeting, Mr Yule followed them out and offered to shake hands with Mr Dyson, who reciprocated. Mr Yule then said, "I am sorry mate it should not have ended this way. My hands are tied."[59]

[50] A few days after his dismissal, Mr Dyson called Mr Yule to organise to collect his personal belongings from the workplace. Mr Dyson said, "I did not want it to go this way." Mr Yule replied, "Neither did I."[60]

[51] During Centennial's investigation into the incident, Mr McCarty and Mr McKinnon raised the fact that in 2002 a risk assessment had been undertaken at the Myuna mine in relation to crossing over the conveyor belt and the recommended control in the risk assessment was "lanyard isolation".[61] The 2002 risk assessment was still available on Centennial's computer system at the time of the incident on 7 April 2020. Importantly, Mr Dyson did not contend in his evidence that there was a practice, let alone an acceptable practice supported by a risk assessment, of employees standing on, or walking across, a conveyor belt without full isolation of the belt. Full isolation is to be contrasted to pulling on the lanyard or pressing the belt switch to the off position. Full isolation ensures that no power can get to the belt, with the result that it cannot move unless all isolation locks are removed from the device. Pulling on the lanyard or pressing the belt switch to the off position simply turns the belt off, but does not prevent the belt becoming energised in some way and moving, as happened on 7 April 2020. The evidence adduced in relation to the practice of using the lanyard or belt control switch to cross the belt was limited, partly because the issue was not identified in Mr Dyson's submissions or his witness statements, as a result of which Centennial, reasonably enough, did not address it in its witness statements. In any event, I am satisfied that the limited evidence on this topic did not establish anything beyond a practice, on the part of at least some employees at the Myuna mine, which existed up until about two years ago, of crossing the belt without full isolation.[62] Further, the practice was inconsistent with the terms of the Energy Control Standard (ECS) and the Conveyor Belt Isolation & Restoration of Power (CBIP) procedure, which makes it clear that an employee cannot use a risk assessment tool known as a job safety analysis (JSA) to alter or vary the Energy Control Standard or an Isolation Procedure.[63] Accordingly, I find on the balance of probabilities that at the time of the incident on 7 April 2020 there was not any practice of employees standing on, or walking across, a conveyor belt without full isolation of the belt. Centennial did not tolerate or condone the action that Messrs Dyson, McCarty and McKinnon took on 7 April 2020 in undertaking a task associated with plant and equipment where a person (Mr McCarty) was exposed to hazardous energy sources without isolating the plant and equipment.[64]

[52] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the Application.

[53] There is no dispute between the parties and I am satisfied on the evidence that:

• (a) Mr Dyson's application for unfair dismissal was made within the period required in s 394(2) of the Act;

• (b) Mr Dyson was a person protected from unfair dismissal;

• (c) the Small Business Fair Dismissal Code did not apply to Mr Dyson's dismissal; and

• (d) Mr Dyson's dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[54] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Dyson's dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

[55] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[65] In order to be "valid", the reason for the dismissal should be "sound, defensible and well founded"[66] and should not be "capricious, fanciful, spiteful or prejudiced."[67]

[56] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[68] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[69]

[57] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[70] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[71]

[58] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[72] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[73]

[59] In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[74] Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:

"Fact Finding and the State of Satisfaction Required

1. It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.

2. Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.

3. It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

Even though he spoke of the common law position, Dixon J's classic discussion in _Briginshaw..._at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):

'No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).

1. It is also clear that so-called "Briginshaw principles" apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)..."

[60] It follows that for Centennial to succeed in relation to its allegations of misconduct against Mr Dyson I am required to reach a state of satisfaction or an actual persuasion that Centennial has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.[75]

[61] I accept Centennial's submissions that:

• At the time of the incident Mr Dyson was the most senior mining official in the Myuna mine. He had statutory responsibilities and functions as a result of holding the position of Undermanager.

• At all relevant times, Centennial has strict health and safety obligations at the Myuna mine. It has a duty of care to ensure, so far as is reasonably practicable, the health and safety of its employees at the mine. To effect this primary obligation, Centennial must necessarily rely upon its senior mining officials at the Myuna mine to take care to ensure safety at the mine is maintained and to ensure current safe work procedures are upheld.

• Mr Dyson has held the statutory position of Undermanager since 2005. At the time of the incident, Mr Dyson knew that he had statutory competencies he had to maintain which included, amongst other things:

  • applying specialised knowledge and skills in the assessment of hazards and potential risks to support a safe workplace;

  • using his own judgment and experience to anticipate and identify potential issues and hazardous situations;

  • responsibility to use clear and effective communication to ensure hazards and risks are effectively communicated;

  • ensuring others have access to relevant documentation and information to apply standards and processes and systems;

  • demonstration of judgment and autonomy in their actions and decision-making in known or changing contexts;

  • sustaining a commitment to safety and ability to model high standards of behaviours for others through his own behaviour;

  • guiding others to comply with existing standards and procedures;

  • demonstrating behavioural tendencies that do not condone work shortcuts that compromise safety;

  • demonstrating an ability to admit mistakes and be open and transparent with others in a timely manner; and

  • understanding in depth and applying advanced technical concepts to guide his own work and the work of others when at the Myuna mine.

• Mr Dyson acknowledged that he knew he was required to know and be familiar with Centennial's safety policies. He was taken through the policies relevant to the incident and accepted, in relation to each one, that he knew about those policies at the time of the incident. He agreed in cross-examination that he knew (amongst other things):

  • that the Mechanical Engineering Control Plan (MECP) applied to conveyor belts;

o that when procedures for a task are not available, the principles of JSA will be applied to control risks associated with the task;[76]

• that the ECS applied to all tasks associated with plant and equipment where persons are exposed to hazardous energy sources;

o that isolation could only be achieved by removing the equipment from all relevant energy sources;[77]

o that isolation could not be achieved by using an auxiliary device, and that an auxiliary device included a conveyor lanyard and belt-switch;[78]

• that under the CBIP if there is a potential hazard of injury from moving equipment then an employee must isolate in accordance with that procedure;

• that under the CBIP, an employee could not use a JSA to vary the ECS or an Isolation Procedure;

• that under the CBIP once the conveyor belt had been isolated it was still necessary to check complete isolation by way of trying to start the conveyor belt;

• that he knew he was obligated to minimise any risks present to the lowest level as far as reasonably practicable, including by isolating the hazard from the person at risk;

• that he knew that common hazards include any uncontrolled energy release, and other common hazards include slipping, tripping, falling and falling from heights;

• that he had been trained on matters as identified in his training record;

• that he understood that under analogous policies if a person is within the confines of a conveyor belt then the conveyor belt needs be isolated; and

• that he understood that if a person was leaning over a conveyor belt or stringer, they were within the confines of the belt, including with regard to slip, trip or fall.

• At all relevant times, Mr Dyson was an Isolator Permit Holder, having completed training on isolation procedures. Mr Dyson agreed that he had had training on isolation procedures and was familiar with and knew the ECS and the CBIP.

• When cross-examined about the incident, Mr Dyson agreed that there were clear hazards involved in the task of changing the bat bags including of slipping, falling and tripping. Those hazards, with which Mr Dyson agreed, in practicable terms were (amongst other things):

• leaning across the ladder over the conveyor belt structure, including the stringer or the conveyor belt;

• losing balance whilst leaning over the conveyor belt structure from the ladder;

• the difficulty in holding and replacing a 4-5 kg dust bat bag with one hand, in order to maintain three points of contact with the ladder;

• falling into the gap between the stringer and the conveyor belt;

• entanglement.
• Mr Dyson admitted that he breached numerous policies and procedures in place at the time of the incident, including that:
  • he knew that the ECS applied to the incident;

• he knew that that the CBIP applied to the incident;

• he knew that that the hazard management policy applied to the incident;

• he knew that that he had an obligation to ensure, so far as is practicable, that tasks were undertaken safely;

• he failed to conduct a JSA, and he should have;

• he failed to complete his SLAM in a proper manner;

• he failed to undertake a careful risk assessment;

• he failed to turn his mind to all the possible hazards;

• he failed to turn his mind to how to minimise or eliminate the hazards;

• he failed to consider whether, having regard to the risks, Mr McCarty was exposed to a hazardous energy source;

o he failed to consider or comply with the ECP. It required isolation procedures to be applied because Mr McCarty was undertaking a task associated with plant and equipment where he was exposed to hazardous energy sources;[79]

o he failed to consider or comply with CBIP. It required isolation procedures to be applied as a control measure because Mr McCarty was subjected to a potential hazard of an injury from moving equipment;[80]

• he failed to consider the U/S roller or removing a belt procedures;

• he failed to consider the hazard management procedure;

• he failed to have a communication with Mr McCarty about how to manage or eliminate the hazards to him;

• he failed to request that the group fill out their SLAMs together and discuss them;

• he had an obligation to effectively communicate with people to ensure they knew how to stay safe, and that despite that obligation, he did not discuss any aspect of how the task was to be carried out with the group at all before walking away to the belt-switch; and

• the fact that there was no specific procedure for changing dust bat bags over a conveyor belt meant that it was all the more important to have had clear and effective communication with Mr McCarty about how he would undertake the task.

[62] Mr Dyson's failure to isolate the belt, comply with Centennial's relevant policies, and comply with his obligations as an Undermanager were serious matters and gave Centennial a sound, defensible and well-founded reason for the termination of his employment.[81] Accordingly, my evaluative assessment is that Centennial had a valid reason for Mr Dyson's dismissal related to his conduct (including its effect on the safety and welfare of other employees).

[63] I do not accept Centennial's submission that it had a valid reason for Mr Dyson's dismissal by reason of dishonesty, or a lack of candour, on his part during the investigation. For the reasons given above, I have found that Mr Dyson was not dishonest and did not display a lack of candour during the investigation into the incident.

[64] Mr Dyson was notified of the reason for his dismissal, both orally and in writing, during the investigation process and in the letter of termination dated 21 April 2020.

[65] During the investigation process Mr Dyson was given opportunities to respond, and did in fact respond, to the reason for his dismissal.

Unreasonable refusal to allow a support person (s 387(d))

[66] Mr Dyson did not have a support person with him in the meeting on 9 April 2020. He did not request a support person in that meeting.

[67] Mr Dyson had a support person with him in the meetings on 17 and 21 April 2020.

[68] There is no evidence to support a finding that Centennial refused to allow Mr Dyson to have a support person present at any meeting relating to his dismissal.

[69] Accordingly, I am satisfied that there was not any unreasonable refusal by Centennial to allow Mr Dyson to have a support person present to assist in any discussions relating to his dismissal.

Warnings of unsatisfactory performance (s 387(e))

[70] Mr Dyson was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[71] Centennial is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of Centennial's enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Dyson's dismissal.

[72] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[73] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:[82]

"[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal": Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee's disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a "valid reason" proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as "substantive fairness" from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason".

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

"Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer's policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13]."

[74] In my assessment, Mr Dyson's dismissal was "harsh" in both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd.[83] That is, the dismissal was "harsh in its consequences for the personal and economic situation of the employee" and "because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." I have reached that conclusion by having regard to the facts and circumstances set out above, together with the other "relevant matters" discussed below.

[75] The first relevant matter is the length and quality of Mr Dyson's employment record with Centennial. As stated above, Mr Dyson had about 40 years' service with Centennial and its predecessor prior to his dismissal. He had an exemplary employment record throughout that time. He did not receive any warnings, or have any disciplinary action taken against him, at any time during his employment with Centennial, save for his conduct on 7 April 2020 and the earlier warning to which I referred in paragraphs [41] to [45] above, which was withdrawn by Centennial. The present case is clearly distinguishable from cases such as BlueScope Steel Limited v Habak,[84] where the employee had a lengthy period of service (39 years) but had breached the same critical safety procedure on two occasions prior to the occasion which resulted in his dismissal. In all the circumstances, the length and quality of Mr Dyson's employment record with Centennial weighs in favour of his argument that his dismissal was harsh.

[76] The second relevant matter is the gravity of Mr Dyson's misconduct on 7 April 2020. I have no hesitation in finding that Mr Dyson's conduct on 7 April 2020 was serious as were his failures to comply with Centennial's policies and procedures and his contractual and statutory obligations as an Undermanager. It is vitally important for an employer such as Centennial in an inherently dangerous industry such as underground mining to be able to have the utmost confidence that its employees, particularly senior employees (such as Mr Dyson) with supervisory and managerial responsibilities and statutory duties, will, at all times, conduct themselves safely and in accordance with the employer's policies and their statutory and contractual obligations. One of the most important ways an employer in the coal mining industry can protect its employees is to require its employees to apply isolation procedures to all tasks associated with plant and equipment where persons are exposed to hazardous energy sources. That is precisely what Mr Dyson was required to do to comply with clause 3.0 of the ECS. Mr Dyson failed to comply with that obligation on 7 April 2020. He also failed to comply with his anterior obligations to complete his SLAM properly and together with Messrs McCarty and McKinnon, undertake a JSA, assess all the risks, and communicate effectively with Messrs McCarty and McKinnon. Mr Dyson's failures are more fully set out in paragraph [61] above. However, when considering whether Mr Dyson's dismissal was disproportionate to the gravity of his misconduct, it is relevant to have regard to the following factors which bear on the seriousness of the matter:

• First, although Mr Dyson conceded in cross examination that he failed to consider whether, having regard to the risks, Mr McCarty was exposed to a hazardous energy source, and failed to turn his mind how to minimise or eliminate the hazards,[85] he plainly considered there was a risk that Mr McCarty may fall from the ladder and end up on the conveyor belt or some part of the conveyor belt structure. So much is clear from the fact that Mr Dyson told Messrs McCarty and McKinnon that he was going to turn the belt switch off, and he did so. The only reason he took that action was because he did not want the belt to be running in the event that Mr McCarty fell onto it.[86] Having identified one of the potential hazards, Mr Dyson failed to adopt the required control measure, namely, isolation. Instead, he adopted a lesser control measure, namely, turning off the belt switch. That was a serious failure on Mr Dyson's part, particularly given his role as the most senior employee on the shift, but his conduct would have been more serious if he had not taken any steps to identify or address the hazard.

• Secondly, for the reasons earlier given, I have found that Mr Dyson did not instruct Mr McCarty to get onto the belt and did not know that he would do so. Had Mr Dyson known that Mr McCarty was going to step on to the belt to replace the final two bat bags, Mr Dyson's conduct and in particular his failure to isolate the belt would have been objectively more serious because the risk associated with the belt moving was higher with Mr McCarty standing on the belt than it was if Mr McCarty was standing on the ladder with the possibility he could fall off the ladder onto the belt.

• Thirdly, one does not assess the seriousness of an incident by reason of the actual injury incurred. A proper assessment requires consideration of all the circumstances, including the seniority, training and experience of the employees involved, the employer's safety systems and procedures (which were clear in this case), and both the risk of injury together with the range of potential injuries that could arise from such risks. Mr McCarty strained his right leg when the belt came on unexpectedly on 7 April 2020. He was unable to undertake all his usual duties at work for a number of months thereafter as a result of his injury. Mr McCarty's injury was serious, but it could have been far more serious. By way of example, he could have fallen off the belt and onto the ground about 1.2m below or into the gap between the belt and stringer, thereby suffering a lost time injury or even a serious head injury. The fact that Mr McKinnon was present and could have pulled on the lanyard (as he did) to stop the belt and Mr Dyson was at the belt switch and could have turned the belt switch off meant that there was not a realistic prospect of Mr McCarty being carried along by a moving belt for any considerable distance or period of time. Having regard to all the circumstances, I consider it was possible that Mr McCarty may have been fatally injured or permanently injured in a serious way, but the prospects of such an outcome were low. The most likely outcome of the belt moving unexpectedly, in my assessment, was a lost time injury. This may be contrasted, as part of an assessment of the gravity of Mr Dyson's misconduct, to other circumstances in heavy industry where the failure to isolate plant or equipment gives rise to a high risk of fatal injury, loss of body parts or other serious, permanent injury. I have heard and been involved in a number of such cases.

[77] The analysis in the foregoing paragraph has not been undertaken for the purpose of reasoning that Mr Dyson's misconduct was not of the most serious kind that could be imagined, with the result that his dismissal was harsh. That would be an erroneous approach to the question of determining harshness in the sense of the dismissal being disproportionate to the gravity of the misconduct. My approach has been to consider the gravity of Mr Dyson's misconduct in all the circumstances and to reach an evaluative assessment as to whether Mr Dyson's dismissal was disproportionate to the gravity of his misconduct.

[78] The third relevant matter is that the personal and economic consequences for Mr Dyson of the dismissal have been severe. Mr Dyson is 61 years old. He has spent his entire working career in the mining industry, almost exclusively for one employer. I accept Mr Dyson's evidence that the termination of his employment has been devastating for him. It has come at a time when he has recently gone through melanoma scares and operations, his parents are both ill and require his care and assistance, and he has recently separated from his long term partner, which has come with financial and emotional strain. Mr Dyson is now unemployed. He has not been able to obtain any alternative employment since his dismissal, notwithstanding his considerable efforts to find a job in a range of occupations and industries.

[79] The fourth relevant matter is my assessment that Mr Dyson is, and was during the investigation meetings on 17 and 21 April 2020, genuinely contrite and he both accepts and understands where he failed to comply with his duties and obligations on 7 April 2020. The purpose of the initial meeting with Mr Dyson on 9 April 2020 was to discuss what happened. There is no suggestion in the evidence that potential breaches of policy, procedure or other obligations were discussed at that meeting. At the meeting on 17 April 2020 Mr Dyson acknowledged failures on his part. At the meeting on 21 April 2020 Mr Dyson expressed remorse, told Centennial that he would "comply in the future", and squarely admitted, when it was first put to him, that there had been a breach of the ECS.[87] There is no suggestion in the evidence that Mr Dyson was asked during the investigation process whether he breached any other particular policies or procedures. During cross examination, Mr Dyson made numerous concessions and admissions about his knowledge, training, and breach of a whole range of policies, procedures and obligations. Mr Dyson clearly understands that he should have isolated the belt and I am confident he would do so in the future if a similar situation arose.[88] Centennial criticises Mr Dyson for not being able to explain why he made the errors he made on 7 April 2020. It is appropriate, in my view, to give that matter some weight, but not as much as has been contended for by Centennial. It is not always a simple or straightforward matter to explain why an incorrect decision was made.[89] Mr Dyson did not seek to rely on excuses such as the prior practice of crossing the belt without isolation at the Myuna mine or the other matters that were plainly on his mind at the time of the incident, such as his recent health concerns and the breakdown of his long term relationship.[90] He accepts, without qualification, that he made a series of poor decisions[91] and failed to comply with his duties and obligations on the day in question.

[80] Mr Dyson asserts that he was unfairly afforded inconsistent treatment by Centennial in relation to his dismissal. He points to the fact that Mr McCarty received a final written warning, was suspended without pay for two weeks, and was demoted for his involvement in the incident on 7 April 2020.

[81] In Darvell v Australian Postal Corporation,[92] the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted):

"[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:

"[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable ...

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made."

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

"[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable." [Footnotes omitted]

[82] There is some force to Centennial's argument that Mr Dyson's conduct on 7 April 2020 was more serious than Mr McCarty's conduct because Mr Dyson was the most senior employee on site, Mr McCarty reported to Mr Dyson, and Mr Dyson should have taken charge and led the task from hazard identification through to job planning to the safe execution of the task. Balanced against that is the fact that Mr Dyson did not know that Mr McCarty was going to stand on the belt when he left the area to turn the belt switch to the off position. Mr McCarty made the decision to stand on the belt in circumstances where he knew the belt was not isolated. Once Mr McCarty got onto the ladder and decided he would step onto the belt to hang the final two bat bags, he should have taken steps to ensure the belt was isolated before stepping on to the belt.[93] Centennial also points to the fact that Mr McCarty was contrite at all times, accepted where he went wrong, and did a better job than Mr Dyson in completing his SLAM. On the basis of the findings I have made, Mr Dyson was also contrite, accepted he was at fault, and admitted breaching the ECS. I accept, however, that Mr McCarty did a better job than Mr Dyson in completing his SLAM. Having regard to all the circumstances, I consider the seriousness of the conduct of Mr Dyson and Mr McCarty on 7 April 2020 to be broadly the same. It follows, in my view, that an employer acting reasonably would not dismiss one of these two employees summarily (Mr Dyson) and retain the other employee (Mr McCarty), albeit with a final written warning, two week period of unpaid suspension and a demotion. This differentiation in treatment supports Mr Dyson's argument that his dismissal was harsh. However, even if I had rejected Mr Dyson's argument of inconsistent treatment, I would still have found that Mr Dyson's dismissal was harsh for the reasons given above.

Conclusion as to harsh, unjust or unreasonable dismissal

[83] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Centennial's dismissal of Mr Dyson was harsh, but not unjust or unreasonable.

[84] Having found that Mr Dyson was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Dyson seeks the remedy of reinstatement. As a result, I need to consider whether reinstatement of Mr Dyson would be appropriate or inappropriate.

[85] Centennial submits that orders for reinstatement, continuity of service and back-pay would not be appropriate given the serious nature of Mr Dyson's conduct (including the contravention of the workplace policies that applied to him), the flagrant disregard by Mr Dyson towards his statutory role and functions, the nature of Mr Dyson's conduct during the investigation - failure sufficiently to take accountability and responsibility for the incident, Mr Dyson's dishonesty and lack of candour, and the trust and confidence of Centennial has been irreparably destroyed as result of Mr Dyson's conduct.

[86] A Full Bench examined the relevant principles concerning an alleged loss of trust and confidence in the context of an application for reinstatement in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (references omitted):[94]

"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."

[87] Put another way, it is relevant when assessing the appropriateness of an order for reinstatement to consider whether Mr Dyson has demonstrated sufficient understanding that his behaviour during the incident on 7 April 2020 was inappropriate and unacceptable such as to give rise to a sufficient level of confidence that conduct of that type will not recur if he is reinstated and the employment relationship will be viable and productive.[95]

[88] Having seen and heard Mr Dyson give evidence, I am persuaded that he understands that his conduct on 7 April 2020 was inappropriate, unacceptable and not to be repeated. During the investigation process Mr Dyson was honest, showed contrition and conceded that he made mistakes and breached the ECS. He did not seek to hide the incident. He gave evidence, which I accept, that:[96]

"If I was doing the same job now I would make sure that the belt is fully isolated. I would use a work platform in the front of an LHD instead of a ladder. I am sorry about Mr McCarty being hurt. I care about the people I work with and I am remorseful that he injured his leg."

[89] This evidence is consistent with the handwritten note provided by Mr Dyson to Centennial during the meeting on either 17 or 21 April 2020:[97]

"I sincerely apologise for this incident and its ramifications and will ensure that full isolation occurs in future where required."[98]

[90] Mr Dyson's long and excellent record of service with Centennial and its predecessor also supports my satisfaction that there is a sufficient level of trust and confidence to enable the employment relationship between Centennial and Mr Dyson to be viable and productive. Mr Dyson has been an Undermanager since 2005. There is no suggestion that in the 15 years Mr Dyson has worked as an Undermanager, in which capacity he has been the most senior statutory official with oversight of an entire shift of workers on a daily basis, that any person has been injured on his watch prior to the incident on 7 April 2020.

[91] Further, although Mr Turner and Mr Smith, both of whom are based in a central office away from the Myuna mine, hold concerns about Mr Dyson's conduct and approach to safety,[99] the following evidence from employees at the Myuna mine supports Mr Dyson's contention that reinstatement would be appropriate:

• Mr Leggett, who was Mr Dyson's direct supervisor, gave evidence that he was satisfied with Mr Dyson's performance and did not have any problems with him.[100] Mr Leggett told Mr Dyson that the audits he did (which were reviewed by Mr Leggett) were the best of all the Undermanagers at the Myuna mine;[101] and

• Mr Harrison gave evidence that he had never had any difficulties in working with Mr Dyson and regarded him as "a good employee, very safety conscious person".[102]

[92] Although the Myuna mine manager, Mr Yule, did not give evidence, it is apparent from his communications with Mr Dyson at about the time he was dismissed[103] that there is no personal animosity between Mr Yule and Mr Dyson. Indeed, it was Mr Yule who initially proposed that all three employees involved in the incident on 7 April 2020 be suspended for two weeks. In the end, Mr Yule agreed with Mr Turner and signed the termination letter.

[93] Mr Dyson's commitment to taking a pro-active approach towards identifying and addressing safety risks in the workplace is demonstrated by the fact that, on 7 April 2020, he looked out for and identified the six damaged bat bags and then took immediate steps himself, as opposed to delegating the simple task to a more junior employee, to address the problem. In addition, Mr Dyson's commitment to his employer is demonstrated by his immediate agreement to cancel his planned leave at Mr Leggett's request just prior to the incident.

[94] For all these reasons, I have confidence that Mr Dyson's failures on 7 April 2020 will not recur if he is reinstated and the employment relationship will be viable and productive. I am also satisfied that to the extent that Mr Dyson has lost the trust and confidence of some of his colleagues, he will be able to regain it. In all the circumstances, my evaluative assessment is that the appropriate remedy in this case is an order under s 391 of the Act reinstating Mr Dyson to the position in which was employed immediately before the dismissal, namely as an Undermanager. I also consider it appropriate to make an order under s 391(2)(a) to maintain the continuity of Mr Dyson's employment.

[95] As to an order for lost pay under s 391(3) of the Act, Mr Dyson has been out of work since his dismissal on 21 April 2020 and notwithstanding his extensive efforts to obtain alternative employment has not received any income since that time other than some Centrelink benefits. Having regard to Mr Dyson's annual remuneration from Centennial of approximately $222,000, he has foregone earnings in excess of $100,000 since his dismissal. In light of Mr Dyson's misconduct, I consider it appropriate that he bear a substantial degree of responsibility for the financial consequences of his dismissal. However, having regard to the harshness of Mr Dyson's dismissal, I consider it appropriate in all the circumstances to make an order under s 391(3) of the Act for Centennial to pay Mr Dyson an amount for the remuneration lost by him because of his dismissal in the period from 21 July 2020. The absence of an order for lost pay in respect of the three month period from 21 April 2020 to 20 July 2020 will reinforce to Mr Dyson that his conduct during the incident on 7 April 2020 was inappropriate and must not happen again.

[96] A separate order [PR723562] will be issued giving effect to this decision.

L Doust, of counsel, with A Neilson, solicitor, for the Applicant

J Williams, of counsel, with K Scott, solicitor, for the Respondent

[3] Ex R4 at [107] & JT-36; PN810-PN816

[9] For example, Ex R4 at JT-13, JT-15, JT-16

[10] For example, Ex R4 at JT-16, JT-13, JT-15, Ex R6 at DH-2

[34] Ex R5 at [184]-[185] & [201]-[202]; PN419-20

[39] Ex R4 at [105], [107], [109]

[46] Ex R4 at JT-35; see, too, Ex R4 at JT-36

[54] Ex R4 at [150]-[152] and JT-36

[57] PN1469, PN1471, PN1660-PN1663 & PN1935

[62] Ex R4 at JT-35 & JT37; PN1408-PN1413

[65] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

[66] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373

[68] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685

[70] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[73] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

[74] [2019] FCA 451

[81] Sydney Trains v Hilder [2020] FWCFB 1373 at [35]

[82] [2013] FWCFB 6191

[84] [2019] FWCFB 5702

[86] Ex R4 at [107] & JT-36; PN810-PN816

[92] [2010] FWAFB 4082

[94] [2014] FWCFB 7198

[95] Gurdil v The Star Pty Ltd [2013] FWC 6780 at [101]

[98] Ex R5 at PS-28 (top of second last page)

[99] See, for example, Ex R5 at [234]-[237] and Ex R4 at [124]-[138]

[103] See paragraphs [44]-[45] above

Printed by authority of the Commonwealth Government Printer