s.394 - Unfair dismissal

Application for relief from unfair dismissal - failures to isolate - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed

• [1] Mr Hugh Sneddon was employed by Bengalla Mining Company Pty Ltd as a Maintenance Technician (specifically, a Plant Mechanic) at Bengalla's open cut coal Mine in Muswellbrook, New South Wales. Mr Sneddon was dismissed on 10 December 2024 for isolation related failures during the night of 11 November 2024.

• [2] I heard Mr Sneddon's unfair dismissal case against Bengalla on 14 April 2025. Mr Sneddon gave evidence in support of his case. Bengalla adduced evidence from Mr John Campbell, Maintenance Manager, Mr Benjamin Edwards, Mobile Maintenance Superintendent, and Ms Marcelle Jones, Senior Health & Safety Advisor.

• [3] Section 396 of the Fair Work Act 2009 (Cth) sets out four matters which I am required to decide before I consider the merits of an unfair dismissal application.

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

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

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

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

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

Was the dismissal harsh, unjust or unreasonable?

• [5] 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 Sneddon' dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

• [6] 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.[1] In order to be "valid", the reason for the dismissal should be "sound, defensible and well founded"[2] and should not be "capricious, fanciful, spiteful or prejudiced."[3]

• [7] 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.[4] 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).[5]

• [8] 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.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]

• [9] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[8]

• [10] Mr Sneddon rightfully does not contest that there was a valid reason for his dismissal. He accepts that on the night of 11 November 2024 he breached Bengalla's Golden Rule 1 ("never work on equipment without first applying your personal lock(s) as per isolation procedures") and PRO-0068 Isolation Safety Procedure, which relevantly requires isolation whenever a person enters the footprint or articulation area of heavy mobile equipment. Mr Sneddon was aware of, and had been trained in, Golden Rule 1 and the Isolation Procedure. He had also agreed to comply with such requirements during his employment with Bengalla.

• [11] That there was a valid reason for Mr Sneddon's dismissal related to his conduct weighs against his contention that his dismissal was unfair.

• [12] Mr Sneddon was notified of the reason for his dismissal during the investigation process, in the show cause letter dated 2 December 2024, and in the letter of termination.

• [13] During the investigation process and as part of the show cause process Mr Sneddon 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))

• [14] Mr Sneddon had a MEU delegate present as his support person in all discussions related to his dismissal. It follows that there was not any unreasonable refusal by Bengalla to allow Mr Sneddon to have a support person present to assist in any discussions relating to his dismissal.

Warnings of unsatisfactory performance (s 387(e))

• [15] Mr Sneddon 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))

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

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

• [18] 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:[9]

"[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 her 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 her 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]."

• [19] Mr Sneddon was employed by Bengalla for almost six years. He had an unblemished employment record with Bengalla, having never been given a warning or been subjected to any disciplinary action. Further, I accept Mr Sneddon's evidence that he does not recall ever being subject to any disciplinary action or receiving a formal warning or counselling about any aspect of his employment in the mining industry since the commencement of his apprenticeship in 1984.

• [20] The quality and length of Mr Sneddon's employment with Bengalla weigh in support of his contention that his dismissal was harsh.

• [21] Mr Sneddon is 58 years of age. He is married with one adult child, who works as a Maintenance Technician for Bengalla.

• [22] In the period from his dismissal on 10 December 2024 until he commenced full time employment with a new employer on 17 March 2025, Mr Sneddon undertook casual work in his brother's business. His income in that period of time was less than he would have received had he remained employed with Bengalla.

• [23] Since 17 March 2025, Mr Sneddon has worked in a full time role with his new employer. Mr Sneddon was offered that job in mid-January 2025 but did not accept it until 17 March 2025. In his new job Mr Sneddon earns approximately the same, or a little more, than he earned during his employment with Bengalla.

• [24] The mitigating factors to which Mr Sneddon points, and which weigh in favour of his contention that his dismissal was harsh, must be balanced against the gravity of the conduct in which he engaged and all other relevant factors in reaching an overall assessment as to whether the dismissal was harsh, unjust or unreasonable.

• [25] The incidents which led to Mr Sneddon's dismissal took place during his work on night shift commencing at 6pm on Monday, 11 November 2024. This was Mr Sneddon's first day back at work following a seven-week break for a work-related injury that happened on 28 June 2023.

• [26] The crew on which Mr Sneddon worked at Bengalla was rostered to work from 8 November to 12 November 2024. Mr Sneddon was one of the more experienced members of the team of Technicians in which he worked at the Mine. Mr Sneddon was also the crew trainer for his team, which meant that he trained other Technicians in isolation procedures, the live test procedure, permit holding and the limited movement of machines.

• [27] At about 4:15pm on Friday, 8 November 2024, Mr Sneddon attended his treating doctor and spoke to her about returning to work. Mr Sneddon told his doctor that his hand was healing well and he was able to use his hand for light work. Mr Sneddon's treating doctor completed a Certificate of Capacity in which she certified that Mr Sneddon had capacity for "crew training roles" in the period from 8 November 2024 to 8 December 2024. Mr Sneddon emailed the Certificate of Capacity to Ms Jones at 12:52pm on Sunday, 10 November 2024.

• [28] At about 9:30am on Monday, 11 November 2024, Ms Jones called Mr Sneddon, who informed her that he was keen to return to work to undertake some training. Ms Jones informed Mr Sneddon that training could form the duties in his Return To Work Plan as he is a qualified trainer but Ms Jones would have to confirm this with Mr Edwards. Ms Jones then spoke to Mr Edwards, who confirmed that there was training work available for that night. Ms Jones called Mr Sneddon again at about 9:45am and confirmed that there was training work available for him to undertake and he could return to work that night on the basis that he would only undertake training.

• [29] Ms Jones went to email a copy of Mr Sneddon's RTW Plan to Mr Sneddon and his supervisor but found out that Mr Sneddon's normal supervisor was on leave and there would be a step-up supervisor for his shifts on 11 and 12 November 2024. Ms Jones found out that Mr Sneddon's step-up supervisor would be Mr Anthony Martin. At 1:48pm on 12 November 2024, Ms Jones emailed Mr Sneddon's RTW Plan to Mr Martin (cc Mr Sneddon and Mr Edwards). Because Ms Jones had discussed with Mr Sneddon on Monday, 11 November 2024 that Mr Sneddon would only undertake crew training on his return to work, Ms Jones was comfortable that Mr Sneddon understood the basis on which he was being returned to work.

• [30] Mr Sneddon commenced his night shift at 6pm on Monday, 11 November 2024. Mr Martin was not aware that Mr Sneddon was returning to work. Mr Martin told Mr Sneddon to "do some training and what you need to do". Mr Sneddon went through his emails, caught up on training documents and went through training competency documents.

• [31] While Mr Sneddon was in the office doing some training paperwork on the night of Monday, 11 November 2024, he heard haul truck TR031 start in the workshop and a high-pitched squealing noise emanating from the hydraulic system in the truck. A short time later, Mr Sneddon headed out to the workshop with some training documents for Mr Josh Sallows to look at and sign. Mr Sallows was too busy to look at the documents. Mr Sneddon met with Mr Russell Close, a Boilermaker who was completing a task on truck TR031. Mr Sneddon asked Mr Close what was up with the truck. Mr Close explained that the tray of the truck was lifting up in an uncontrolled manner. This obviously gave rise to safety risks.

• [32] At about 10:43pm on 11 November 2024, Mr Close and Mr Sneddon went to truck TR031 and walked underneath the truck, within its footprint, where Mr Sneddon stayed for about 30 seconds, to look at the hydraulic hoses to see if they were causing the issue. At this time, Mr Moore was in the cab of the truck, but it was not running, nor was it turned on. The truck had not been isolated by anybody before Mr Sneddon and Mr Close entered the footprint of the truck. Mr Sneddon indicated to Mr Close that some of the hydraulic hoses on the truck may be crossed. Mr Sneddon accepts that he entered the footprint of the truck when he walked underneath the truck for about 30 seconds, and his conduct in this regard breached both Golden Rule 1 and the Isolation Procedure.

• [33] Mr Sneddon then attended a crew safety meeting.

• [34] At about 12:44am on 12 November 2024, Mr Sneddon walked down and spoke with Mr Martin about the issue with truck TR031. They spoke about what may be causing the problem with the truck. Mr Sneddon suggested that a visual inspection be undertaken of the hoist lever in the cab. He thought the hoist lever pin may have fallen out. Mr Martin and Mr Sneddon then walked up the staircase on the side of the truck. Neither of them applied an isolation lock. Mr Martin visually inspected the valve in the brake cabinet. Mr Sneddon walked past the entrance to the cab to the platform to inspect the rear of the truck. He then entered the cab of the truck, before walking to the back upper platform of the truck and then walking down the staircase off the truck. Mr Sneddon accepts that he entered the footprint of the truck when he walked around the back platform of the truck, and his conduct in this regard breached both Golden Rule 1 and the Isolation Procedure. Mr Sneddon also accepts that by entering the cab of the truck without applying his isolation lock was a breach of the Isolation Procedure.

• [35] At about 12:48am on 12 November 2024, Mr Sneddon again walked underneath the body of the truck without applying an isolation lock. Mr Sneddon did so with Mr Martin, but Mr Sneddon accepts that he made his own decision to walk under the truck and did not follow Mr Martin. Mr Sneddon accepts that he entered the footprint of the truck when he walked underneath the truck with Mr Martin, and his conduct in this regard breached both Golden Rule 1 and the Isolation Procedure.

• [36] At about 12:55am, Mr Sneddon spoke with Mr Sallows near truck TR031. Mr Sneddon then stood under the body of the truck for about 20 seconds. He did not apply his isolation lock before doing so. Mr Sneddon accepts that he entered the footprint of the truck when he walked underneath the truck with Mr Sallows, and his conduct in this regard breached both Golden Rule 1 and the Isolation Procedure.

• [37] The Isolation Procedure makes clear that isolation is required whenever a person enters the footprint or articulation area of heavy mobile equipment, including when inspections are being undertaken. The limited exceptions under which an employee at the Mine may be in the footprint of the machine without first isolating do not apply to the circumstances of Mr Sneddon's case.

• [38] Mr Sneddon did not self-report any of his breaches of Golden Rule 1 or the Isolation Procedure.

• [39] Mr Sneddon accepts that he was not on the workshop floor on the night of 11 November 2024 for the purpose of training. He was inspecting truck TR031 to try to help solve the problem of the tray of the truck moving in an uncontrolled manner.

• [40] Truck TR031 was completely deisolated when Mr Sneddon entered the footprint of the truck at about 10:43pm on 11 November 2024. Even though there are other safety warnings in place such as a horn being sounded and a green light coming on to indicate the truck is about to be started and the engine whining for about 5-10 seconds before firing, the fact that the truck was deisolated meant that Mr Sneddon and Mr Moore were at risk of being exposed to live hazardous energy sources.

• [41] Truck TR031 had been isolated by at least one other employee, but not by Mr Sneddon, when Mr Sneddon entered the footprint of the truck at 12:44am, 12:48am, and 12:55am on 12 November 2024. Although isolation by other employees is better than the truck being completely deisolated, the purpose of personal isolation at the Mine is so that other members of the crew know who is in the footprint of the machine. Given the size of the machines worked on at the Mine, it is very easy to miss somebody who is working on it. Only the person who applied their lock has the key to their lock and so it cannot be removed by anyone else. If a Technician does not have access to their own personal isolation lock for any reason, there are visitor locks in the supervisor's office that they can borrow.

• [42] At about 3:33am on 12 November 2024, the left-side hoist cylinder hydraulic hose (which weighs about 1kg) on truck TR031 failed and ejected about 38 metres behind the truck. This incident was a massive unplanned release of energy. The hose tail could have killed someone if they were standing in its trajectory. Because of the seriousness of this event, Mr Edwards directed that all CCTV footage captured in the workshop between the commencement of the shift at 6pm on 11 November 2024 and just after the incident at 3:40am on 12 November 2024 be reviewed. The review of this CCTV uncovered the isolation breaches engaged in by Mr Sneddon and other employees during the night shift.

• [43] At the end of his night shift on 13 November 2024, Mr Sneddon commenced a period of annual leave. He was also scheduled to do a sleep study on 13 November 2024, which he undertook. Mr Sneddon's doctor had arranged for him to undertake the sleep study because he had been snoring, having headaches, and was experiencing tiredness and poor concentration. The outcome of the sleep study was that Mr Sneddon was suffering from severe obstructive sleep apnoea.

• [44] The following week, Mr Sneddon was stood down pending an investigation into the incidents which took place on Mr Sneddon's night shift, commencing at 6pm on 11 November 2024.

• [45] Bengalla operates in a safety critical industry. Employees at the Mine operate and maintain large, expensive and dangerous pieces of plant and equipment. Mr Campbell explained the impact of these considerations in the following way in his witness statement:[10]

"12. The scale and nature of the machinery worked on in the workshop at the Bengalla mine mean that there are a range of risks, including risks of exposure to hazardous energy sources such as high voltage electricity, significant pressures in hydraulic systems, extreme heat and unplanned movement. This means that maintenance technicians need to be highly vigilant. Hazardous energies are very real and the risk associated with these energies are heightened as maintenance technicians are working with their hands a lot and often in tight spaces. Accordingly, there are several rules that apply to the maintenance workforce more than other employees of Bengalla, to protect workers from serious harm.

1. Golden Rule 1 is critical for the safety of maintenance technicians because of the risks of working on heavy mining equipment. For example, if they are working under a heavy vehicle, they can be crushed simply by the vehicle's engine being turned on and its wheel being turned. Maintenance technicians work on so many different pieces of equipment that if they isolate incorrectly, they can be exposed to unforgiving energies that can lead to loss of life within milliseconds.

1. The systems and processes relevant to complying with Golden Rule 1 are detailed in Bengalla's 'PRO-0068 Isolation'. When multiple people are maintaining a piece of heavy mining equipment, the procedure requires a trained and competent Isolation Officer to identify the energy sources that require isolation for the scope of the work to be conducted. The Isolation Officer isolates the primary energy sources and secures or discharges secondary energies (such as pressurised hydraulic circuits) before clearing the area of personnel and ensuring the isolation is effective. For a multiple-person isolation, the Isolation Officer attaches the 'Isolation Officer's' lock (black lock) and a multi-lock device such as a scissor clip to the black lock, allowing multiple red personal isolation locks for each individual maintainer working on the equipment or entering its footprint. The equipment cannot be re-energised until each personal lock is removed and thus the black lock can be removed and the isolation of hazardous energies removed. The reason for this procedure is to ensure the heavy equipment being worked on cannot be re-energised until every technician working on the piece of equipment has had their lock removed. This reduces the risk of one technician being left unnoticed in the footprint and the relevant equipment being re-energised..."

• [46] Breach of a Golden Rule is deemed under Bengalla's Managing Performance Policy to be serious misconduct that may justify termination without notice. Mr Campbell recommended that Mr Sneddon's employment be terminated. In making that recommendation, Mr Campbell emphasised the seriousness of Mr Sneddon's breaches and, in circumstances where the obligation to isolate and the importance of isolating had been clearly communicated to Mr Sneddon, his repeated breaches of those obligations meant that Mr Campbell had lost trust and confidence in Mr Sneddon's ability to perform work safely and in accordance with Bengalla's policies.

• [47] Mr Campbell was not aware of the contrition demonstrated by Mr Sneddon in his answers to questions put to him during the investigation, but Mr Campbell formed the following view in relation to Mr Sneddon's response to the request to show cause as to why his employment should not be terminated:[11]

"Whilst Mr Sneddon acknowledged that he had breached the isolation procedures, it appeared to me as though he did not fully appreciate the seriousness of his conduct or take ownership of it. He was very relaxed about the breaches and seemed more interested in telling me about his long history with Hunter Valley Operations, rather than addressing the breaches. He treated the breaches as a simple lapse, which wasn't reflective of the dangerous situation he placed himself and others in."

• [48] Mr Edwards explained his view of the seriousness of Mr Sneddon's conduct in the following way in his witness statement:[12]

"66. ... Mr Sneddon has over 40 years in the mining industry. He knows too well that isolation is one of the most important safety rules that everyone must adhere to. There is no excuse for Mr Sneddon to show little regard for his own safety and that of others, on multiple occasions, during this incident. His lack of respect for critical safety processes is unacceptable.

1. In considering Mr Sneddon's conduct, I noted the chronology of the breaches, including that Mr Sneddon had breached the policy once, left the workshop for a period of time and then returned and engaged in further breaches approximately 2 hours later. Mr Sneddon wasn't tasked with troubleshooting TR031 and shouldn't have been within the footprint of the machine at all. Mr Sneddon put not only himself in an unacceptably risk situation, but he also took another technician under the machine with him that had minimal experience in the industry. His conduct demonstrated disregard for policies simply designed to protect him and his teammates. As mentioned, Mr Sneddon is the crew trainer and is responsible for training his team in the isolation of machines, including why it is important. Mr Sneddon is well aware of his obligation to isolate before entering the footprint of a machine. Overall, I considered that the breaches were serious and could have had serious (potentially fatal) consequences."

• [49] During the investigation into these incidents, Mr Sneddon was asked to give his opinion as to the contributing factors that led to his breaches of Golden Rule 1 and the Isolation Procedure. Mr Sneddon responded by saying, "fatigue would be the biggest one, a bit of complacency there for sure."[13] Mr Sneddon also explained in his witness statement in chief that he did not have his isolation lock on him during his night shift on 11 November 2024 because he was not physically conducting, or intending to conduct, any hands-on maintenance work during his 'light duties' shift.[14]

• [50] For the reasons explained by Mr Campbell and Mr Edwards, I am satisfied that Mr Sneddon's conduct that led to him breaching Golden Rule 1 and the Isolation Procedure was very serious. The requirement to isolate very large pieces of plant and equipment while they are being maintained (including during inspections) is one of the primary ways in which employers, and their employees, can eliminate or reduce the risk of serious injury or death in heavy industry. This is not a case in which Mr Sneddon was unaware of his obligations under Golden Rule 1 and the Isolation Procedure. Mr Sneddon was both trained in those requirements and responsible, as a very experienced member of his team, for training other employees in those requirements. Although Mr Sneddon expressed some confusion as to his understanding, at the time of the incident, about the requirements of the Isolation Procedure insofar as it applied to his entry onto the platform of the truck and into the cab of the truck,[15] he accepted at the hearing that his conduct in that regard constituted a breach of Golden Rule 1 and the Isolation Procedure. Further, Mr Sneddon was well aware at the time of the incidents that he should not have walked underneath the body of the truck, clearly within its footprint, without first applying his isolation lock. Mr Sneddon breached his isolation obligations on four separate occasions, over a period of about two hours, on the night of 11 November 2024.

• [51] My assessment is that Mr Sneddon's summary dismissal was not disproportionate to the gravity of his misconduct.

• [52] I accept that Mr Sneddon admitted his wrongdoing, showed insight into what he did wrong, and was contrite during the investigation process.[16] These matters weigh in support of Mr Sneddon's argument that his dismissal was harsh.

• [53] During his cross examination Mr Sneddon said that he informed Mr Martin of concerns in relation to fatigue during his night shift on 11 November 2024. It was suggested to Mr Sneddon in cross examination that his evidence about raising fatigue with Mr Martin was "recent fabrication" on his part. Mr Sneddon agreed. However, he explained in re-examination that he did not understand what "recent fabrication" meant. I accept his evidence in this regard. Notwithstanding that, I do not accept Mr Sneddon's evidence that he told Mr Martin about feeling fatigued during his night shift on 11 November 2024, for the following reasons:

• (a) Mr Sneddon raised the issue of fatigue as a contributing factor during the investigation into the incidents[17] and in his witness statements in chief[18] and reply[19] filed in the Commission. However, at no time prior to his cross examination did Mr Sneddon say that he informed Mr Martin (or anyone else) of any concerns about feeling fatigued during his night shift on 11 November 2024.

• (b) Ms Jones made the following comment in her witness statement about fatigue:[20]

"24. If an employee is feeling fatigued and not fit to return to work, it is their responsibility to let Bengalla know (see Table 1 of section 3.0 and section 4.0 of Bengalla's PRO-0319 - Fatigue Management). If Mr Sneddon had said that he was concerned about returning and could not sufficiently prepare for a night shift for any reason, including for reasons of fatigue, I would have told him that it was an important matter to discuss with his supervisor. I would never require an employee to return to work if they are sharing concerns of fatigue."

(c) Mr Sneddon responded in the following way in his reply witness statement to this comment by Ms Jones:

"23. At PN 24, where issues of fatigue are mentioned. I am not an operator of plant and equipment. My duties were training. I believed I was fit for work and attended, even though I had not had the sleep preparation I normally would have and so, while performing my training role which was principally paperwork, I was tired."

• (d) Mr Edwards gave the following relevant evidence about fatigue in his witness statement:[21]

"44. When employees of Bengalla sign in through our workforce management system, DAMSTRA, they confirm that they are fit for work. Pursuant to section 3.0 of Bengalla's Fatigue Management Policy (PRO-0319), the duty rests with the technician themself throughout the shift to:

2. Stop their task and assess their fatigue risk (e.g. Personal Fatigue

4. If required, notify, and seek support from their Supervisor

A copy of Bengalla's Fatigue Management Policy (PRO-0319) is annexed to this statement and marked BE-05.

1. If Mr Sneddon was concerned that he would be fatigued for his shift on 11 November 2024, he could have raised this with me, in which case he wouldn't have been required to work. He did not raise any such concern. I have had employees in the past come to work fatigued and we have taken them home, as well as employees ringing up and saying they have not had any sleep and therefore would not be coming in. Fatigue is not something we take lightly at Bengalla."

(e) Mr Sneddon did not respond to paragraph [44] or [45] of Mr Edwards' witness statement in his reply witness statement.

(f) If Mr Sneddon had truly discussed fatigue with his supervisor, Mr Martin, on 11 November 2024, it is very difficult to believe that he would not have raised that matter in his witness statement in reply when he was replying to paragraph [24] of Ms Jones' statement or paragraphs [44]-[45] of Mr Edwards' statement.

• (g) Mr Sneddon's witness statement in chief includes conversations he had with Mr Martin during his shift on 11 November 2024, but not in relation to fatigue.[22]

(h) Mr Sneddon gave oral evidence that he was aware of Bengalla's Fatigue Policy, including the requirement for an employee to declare that they are fit at the start of the shift and to raise any issues about their fitness.

• [54] In circumstances where Mr Sneddon had been absent from work for seven weeks and he only found out on the morning of 11 November 2024 that he would be attending night shift on that day, it rings true that he would feel somewhat tired at different points during his night shift. However, in light of my finding that Mr Sneddon did not raise fatigue with Mr Martin, or any other person, during his shift and his belief that he was "fit for work",[23] I do not consider that fatigue played a significant role in Mr Sneddon's conduct that breached his isolation obligations, on four occasions, during his night shift on 11 November 2024. For example, there is no realistic prospect that Mr Sneddon's tiredness on the night of 11 November 2024 caused him to forget to apply his isolation lock before repeatedly walking underneath haul truck TR031 while it was in the maintenance workshop. This was a basic requirement that Mr Sneddon well understood on 11 November 2024.

• [55] I agree with the submissions advanced on behalf of Bengalla that the arguments raised by and on behalf of Mr Sneddon about his RTW Plan are a distraction from the relevant matters that need to be considered in this case.

• [56] Mr Sneddon communicated his fitness for light duties when he provided his Certificate of Capacity to Ms Jones on Sunday, 10 November 2024. There was no doubt about the light duties that Mr Sneddon was fit to undertake: "crew training".[24] Ms Jones then discussed with Mr Sneddon, on the morning of 11 November 2024, that he would be returning to work in order to undertake training duties. Both Mr Sneddon and Mr Edwards were well aware that Mr Sneddon's duties on 11 November 2024 would be restricted to training other employees. Indeed, Mr Sneddon accepted in his oral evidence that he told Mr Martin on 11 November 2024 that he was available to undertake training. In light of these matters, it is not relevant to my assessment of the fairness of Mr Sneddon's dismissal to consider whether Bengalla breached any obligations it owed Mr Sneddon under its Injury Management and Return to Work Procedure to include Mr Sneddon's treating doctor in the consultation for the development of the RTW Plan, by not initiating a RTW meeting between the injured employee, their direct supervisor and other relevant parties, or by failing to sending a copy of the RTW Plan to Mr Sneddon and his supervisor before he commenced light duties, undertaking training, on 11 November 2024.

• [57] The submissions advanced on behalf of Mr Sneddon include a contention that Bengalla's differential treatment of Mr Sneddon (dismissal) compared to its treatment of Mr Sallows and Mr Gurtman (both of whom were given final written warnings) weighs in favour of a finding that Mr Sneddon's dismissal was harsh.

• [58] In Darvell v Australian Postal Corporation,49 the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):50

"[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]

• [59] Bengalla contends that the circumstances of each case are materially different and, as a result, the decision to terminate Mr Sneddon's employment was neither inconsistent nor unfair. Bengalla submits that Mr Sneddon's circumstances are more comparable with those of Mr Martin, who would have been dismissed if he had not resigned, or Mr Close, who was banned from the Mine as a consequence of his breaches. Mr Campbell described the different disciplinary treatment afforded to the relevant workers in the following way in his witness statement:[25]

"Mr Martin: engaged in several isolation breaches during this shift (including as indicated above at paragraphs 40.b and 40.c alongside Mr Sneddon). Mr Martin was stood down immediately and accordingly Mr Jason Taylor was the Supervisor for the next night shift on 12-13 November 2024. A decision was made to terminate Mr Martin's employment and he was informed as such on 10 December 2024. Mr Martin asked if he was able to resign in lieu of a termination. I advised Mr Martin that I would accept a resignation letter. Mr Martin subsequently provided a resignation letter effective immediately. A copy of Mr Martin's termination letter (although I cannot recall whether I ultimately provided the letter to Mr Martin) and resignation letter are annexed to this statement and marked JC-23, and JC-24, respectively;

b. Mr Sallows: engaged in one isolation breach by following Mr Sneddon into the footprint of TR031 after asking Mr Sneddon for an explanation of the fault with TR031. Due to his relative inexperience, and the fact that he only engaged in one breach, in addition to the clear appreciation for what he had done that he demonstrated, he was given a final written warning. A copy of his final written warning is annexed to this statement and marked JC-25;

c. Mr Jake Gurtman (Maintenance Technician): Mr Gurtman engaged in one breach of the live testing procedure which is distinct to the breaches engaged in by Mr Sneddon. Mr Gurtman was given a final written warning. A copy of his final written warning is annexed to this statement and marked JC-26; and

d. Mr Russell Close (Contracted Maintenance Technician): engaged in multiple isolation breaches. Mr Close was resultantly banned from site."

• [60] Mr Campbell accepted in his evidence that, unlike Mr Sneddon, neither Mr Sallows nor Mr Gurtman displayed contrition for their conduct during their investigation meetings. Mr Campbell rejected the suggestion that Mr Gurtman's breach of the live testing procedure was more serious than Mr Sneddon's isolation breaches. Mr Campbell gave evidence, which I accept, that the gravity of Mr Gurtman's breach was of equal seriousness to the gravity of each of Mr Sneddon's breaches, but Mr Sneddon engaged in four separate isolation breaches during his shift on 11 November 2024 whereas Mr Gurtman and Mr Sallows only engaged in a single isolation breach. Mr Campbell also accepted in his oral evidence that Mr Sallows is an experienced Technician, albeit less experienced than Mr Sneddon.

• [61] I do not accept the submission advanced on behalf of Mr Sneddon that his breaches of Golden Rule 1 and the Isolation Procedure were effectively a single course of conduct, or that it is an artificial point of distinction to assess Mr Sneddon as having engaged in four isolation breaches. Mr Sneddon engaged in his contravening conduct at four different times, over a period of about two hours, during his night shift on 11 November 2024. This is not a case where a single instance, or act or omission on an employee's part, constituted numerous breaches of one or more policies. Mr Sneddon's contravening conduct, at 10:43pm, 12:44am, 12:48am, and 12:55am, was separate and distinct. If this was a 'one-off' lapse of judgment by Mr Sneddon, he would have conducted himself differently when he returned to the haul truck at 12:44am, two hours after he first walked beneath the body of the truck without it being isolated and Mr Sneddon not applying his isolation lock. In my assessment, it was both correct and reasonable for Mr Campbell to assess Mr Sneddon's conduct as four separate isolation breaches during his night shift on 11 November 2024. This is a material point of distinction from the single breaches engaged in by Mr Gurtman and Mr Sallows.

• [62] It is also apparent from the investigation notes to which Mr Campbell was taken during his cross examination[26] that Mr Gurtman and Mr Sallows both had a lack of understanding of the relevant requirements of their isolation obligations. This is to be contrasted with Mr Sneddon, who was in no doubt about his requirement to apply his isolation lock before walking beneath the body of the truck. This point of distinction weighs in support of a finding that Mr Sneddon's conduct was more objectively serious than that of Mr Gurtman and Mr Sallows.

• [63] Having regard to all the circumstances, my assessment is that the differential treatment of Mr Sneddon compared to Mr Sallows and Mr Gurtman did not render Mr Sneddon's summary dismissal harsh, unjust or unreasonable.

• [64] It was suggested to Bengalla's witnesses that Mr Sneddon's age and his recent workplace injury, for which he received workers' compensation, played some role in the decision to terminate his employment. Those suggestions were rejected by Bengalla's witnesses. I accept their evidence in that regard. There is no documentary or other evidence to support the contention that Mr Sneddon's age or recent workplace injury were operative reasons for the decision to terminate his employment.

• [65] The termination letter given to Mr Sneddon states, in part:

"22:43pm Stuart Moore deisolated TR031 and started it. You and Russell Close entered the footprint of TR031 between pos #1 and pos #3/4 tyres..."

• [66] It was suggested that this part of the termination letter contains a 'mistake' because the truck was not operating, or turned on, at the time Mr Sneddon and Mr Close entered the footprint of the truck at 10:43pm. The termination letter does not expressly state that the truck was operating, or turned on, at the time Mr Sneddon and Mr Close entered the footprint of the truck at 10:43pm. This may be implied from reading both sentences together. However, I accept from the evidence given by Bengalla's witnesses that Bengalla understood that the truck was not operating, or turned on, at the time Mr Sneddon and Mr Close entered the footprint of the truck at 10:43pm. Accordingly, I am satisfied that Bengalla did not misunderstand the facts when the decision was made to terminate Mr Sneddon's employment. It follows, in my view, that the somewhat sloppy way in which the relevant sentences of the termination letter are expressed did not give rise to any material unfairness, nor does it render the dismissal as harsh, unjust or unreasonable.

• [67] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Bengalla's dismissal of Mr Sneddon was not harsh, unjust or unreasonable. The repeated isolation breaches by Mr Sneddon during his night shift on 11 November 2024 were serious. They had the potential to result in significant personal injury or death. In my assessment, the seriousness of that conduct outweighs Mr Sneddon's otherwise clean employment record and the other matters that weigh in support of his argument that his dismissal was unfair. Further, I am satisfied that Bengalla undertook a reasonable investigation and afforded Mr Sneddon procedural fairness before making its decision to terminate his employment.

• [68] For the reasons given, Mr Sneddon's application for relief from unfair dismissal is dismissed.

S Mueller, Legal Officer of the MEU, for the Applicant

J McLean, of counsel, with B Tannenbaum, solicitor, for the Respondent

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

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

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

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

[9] [2013] FWCFB 6191

[17] Hearing Book at p 739; Ex A1 at [45]-[46]

[20] Ex R4 at [24]; see also similar comments by Mr Campbell at Ex R2, [28]-[32]

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