Wilton v Workers' Compensation Regulator [2025] QIRC 279

Coal Mining Safety and Health Regulation 2017 (Qld), s 42

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11, s 32

Davis v Blackwood [2014] ICQ 9

Gilmour v Workers' Compensation Regulator [2019] QIRC 22

Kuenstner v Workers' Compensation Regulator [2016] QIRC 83

Mr M.E. Holmes instructed by Taylors Solicitors for the Appellant

Mr S.A. McLeod KC instructed directly by the Respondent

• [1] The Appellant, Mr Kevin Wilton, appeals a decision of the Workers' Compensation Regulator ('the Regulator') confirming the decision of BHP Group Limited ('BHP') to reject Mr Wilton's application for compensation.

• [2] BHP rejected Mr Wilton's claim for compensation on the basis that Mr Wilton did not sustain an "injury" in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act'). Mr Wilton seeks to appeal this decision.

• [3] Mr Wilton claims that he was injured over the course of several meetings in a three-day period and that those meetings constituted "management action" and that management action was not reasonable nor taken in a reasonable way. Consequently,

Mr Wilton contends that he suffered a psychological injury whilst employed by BHP Coal Proprietary Limited ('BHP Coal') and that his application for compensation should be accepted.

• [4] The parties agree that at all material times, Mr Wilton was a "worker" for the purposes of the WCR Act.[1] Further, the Regulator accepts that Mr Wilton sustained an injury for the purposes of the WCR Act and that the injury arose out of, or in the course of, his employment and that the employment was a significant contributing factor to that injury.[2]

• [5] The parties acknowledge that the central issue in dispute is whether Mr Wilton is excluded from compensation by the operation of s 32(5) of the WCR Act, on the basis that his injury arose from reasonable management action taken in a reasonable way.

• [6] Relevantly, Mr Wilton nominates the stressor for his injury as follows:

1. The acts and/or omissions of Ms Taylor, Mr Dargin, Mr Snelling and BHP Coal's management team in general, subsequent to Ms Taylor first requesting that the Appellant undertake training/assessing duties and her being told by the Appellant that he did not wish to perform those duties, on 26, 27 and 28 May 2021 and subsequently in respect of the disciplinary action.

The Appellant asserts that he sustained psychological/psychiatric injuries as a result of each of the above stressors and/or a combination of them.[3]

• [7] Mr Wilton's stressor is in very broad terms and it does not particularise the relevant management act and/or omission relied on in the meetings on 26, 27 and 28 May. This will be considered further below.

• [8] Mr Wilton, at the relevant time, was employed by BHP Coal in the role of a coal mine worker, specifically, as a plant operator.

• [9] Mr Wilton held a number of competencies that he had acquired through the course of his employment including a competency with respect to providing training to workers in the operation of plant and machinery and assessing workers' capacity to operate plant and machinery (trainer and assessor competency).

• [10] Mr Wilton's position as a coal mine worker generally, and as a trainer and assessor, carried safety and health obligations pursuant to the Coal Mining Safety and Health Act 1999 (Qld) ('CMSH Act').

• [11] In April 2021, Mr Wilton says that he was feeling overwhelmed with the training and assessing aspect of his work and wanted to take a break from performing that part of his role. Mr Wilton claims that the role was voluntary and he was not financially compensated for performing the role. However, the evidence was that Mr Wilton was required to, and had for some several years, perform the role of trainer and assessor in the discharge of his employment duties.

• [12] It is Mr Wilton's case that on or about 14 April 2021, he met with the Peak Downs' Production Superintendent, Mr John Snelling, and advised him that he wanted to take a break from training until he returned from his holidays in or about early July. There is a dispute in the evidence about Mr Wilton's recollection of this conversation as opposed to

• [13] Further, there is a tension in the evidence with respect to the outcome of this meeting insofar as Mr Wilton states that he came to an agreement with Mr Snelling that he was not required to perform any training or assessing until he returned from leave.

• [14] Mr Wilton states, following the meeting with Mr Snelling, that he went and saw his supervisor, Mr Steven Dargin, on 14 May, who agreed that he would not have to do training and assessing until he went on holidays and returned in early July.

• [15] On the morning of 26 May, another supervisor, Ms Stacey Taylor, required

Mr Wilton to perform a training and assessment task. Mr Wilton replied to Ms Taylor by stating that he had an agreement with Mr Snelling and Mr Dargin and was not doing any training until he returned from leave. Ms Taylor stated that she did not know of any such agreement and would return to Mr Wilton after speaking to Mr Snelling and Mr Dargin. After making the enquires, Ms Taylor directed Mr Wilton to perform the training and assessing and he refused to comply with the direction. Subsequently, several meetings were held with Mr Wilton, Mr Dargin, Ms Taylor and other BHP Coal representatives over the course of 26, 27 and 28 May with respect to Mr Wilton's refusal to comply with the direction.

• [16] The contents and consequences of those meetings form the basis of the contested evidence in this proceeding and will be considered in detail when analysing the evidence below.

• [17] Suffice to say, Mr Wilton contends that as a result of the events on 26, 27 and 28 May, he sustained a psychological injury.

• [18] Mr Wilton further contends that the date of decompensation is 29 May 2021, the date upon which he attended a general practitioner.[4] That date is not disputed by the Regulator.

• [19] The consequence of this is that it is the management action that occurred on or before

29 May that is relevant to the determination of this appeal. Specifically, it is the management action relied on by Mr Wilton in his contentions that took place on 26, 27 and 28 May.

• [20] The onus rests with Mr Wilton to satisfy the Commission on the balance of probabilities that the injury did not arise out of, or in the course of, any of the circumstances set out in s 32(5) of the WCR Act.

• [21] Section 32 of the WCR Act relevantly provides the meaning of "injury" as follows:

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

(2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -

(iii) a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker;

(c) action by the Regulator or an insurer in connection with the worker's application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way -

• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

• a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment

• [22] Relevantly, s 32(5)(a) of WCR Act operates to remove a psychological injury from the statutory definition of "injury" where it arises out of, or in the course of, reasonable management action taken in a reasonable way.

• [23] In Gilmour v Workers' Compensation Regulator,[5] his Honour, O'Connor VP, after considering the relevant authorities and the operation of s 32 of the WCR Act,[6] held that "management action" for the purpose of s 32(5) of the WCR Act, must be something different to the everyday duties and incidental tasks of the appellant's employment.

• [24] The Regulator contends that the action in this matter was reasonable management action. In Davis v Blackwood,[7] it was observed that that task to assessing management action was as follows:

...The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.[8]

• [25] Accordingly, the task is to assess the management action taken and to determine whether it was reasonable and whether it was taken in a reasonable way.

• [26] In Kuenstner v Workers' Compensation Regulator,[9] Commissioner Neate summarised the following relevant principles in respect of the application of s 32(5) of the WCR Act as follows:

• [38] There are also decisions to the effect that:

(a) what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"

(b) it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."

• [39] In Prizeman v Q-COMP, President Hall stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."

• [40] Where there are multiple stressors alleged to be management action, the Commission may make a more "global" evaluation of management action when considering whether that management action was unreasonable or was taken in an unreasonable way (e.g. where there are were repetitive blemishes joined by subject matter, time and personality in a discordant workplace).

• [41] For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility for management action being taken in a reasonable way lies with the management. Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented. Language, tone of voice and demeanour are relevant to the issue whether action was taken in a reasonable way.

• [42] The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way ...[10]

• [27] In asserting that the management action taken in the meeting on 26, 27 and 28 May was unreasonable, Mr Wilton seeks to rely on several work health and safety obligations contained in the CMSH Act, the Coal Mining Safety and Health Regulation 2017 ('the Regulations') and BHP Coal's fitness for work policy that he contends he was discharging at the relevant time.

Obligations under the CMSH Act

• [28] Mr Wilton submits that the "gist of section 39 of the CMSH [Act] is to make sure that coal mine workers do not put their safety at risk or others on the mine site".[11]

• [29] He further contends that there is tension between coal mine workers' obligations under the CMSH Act and their obligations under cl 4.1 of the of the BMA Enterprise Agreement 2018[12] ('the EA') that require coal mine workers to comply with a reasonable obligation of their employer for production purposes. For reasons explored further below, that submission is not accepted.

• [30] Given the reliance placed on the CMSH Act, the EA and the fitness for work policy by Mr Wilton in the course of his appeal, it is necessary to consider the provisions in detail.

• [31] Briefly, the CMSH Act has the following objects:[13]

(a) to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and

(b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level; and

(c) to provide a way of monitoring the effectiveness and administration of provisions relating to safety and health under the CMSH Act and other mining legislation.

• [32] Those objects are achieved[14] under the CMSH Act by, inter alia:

(a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines;[15]

(b) providing for safety and health management systems at coal mines to manage risk effectively;[16] and

(c) making regulations and recognised standards for the coal mining industry to require and promote risk management and control.[17]

• [33] Section 18 of the CMSH Act defines "risk" to mean "risk of injury or illness to a person arising out of a hazard."

• [34] A "hazard" is defined in s 19 of the CMSH Act to mean a "thing or a situation with potential to cause injury or illness to a person."

• [35] Section 29(1) of the CMSH Act provides that for risk to a person from coal mining operations to be at an "acceptable level", the operations must be carried out so that the level of risk from the operations is:

• [36] Section 29(2) of the CMSH Act provides that to decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to the following:

(a) the likelihood of injury or illness to a person arising out of the risk; and

• [37] Section 30(1) of the CMSH Act sets out how an acceptable level of risk is achieved by requiring that management and operating systems must be put in place for each coal mine. Section 30(2) of the CMSH Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to, inter alia: identify, analyse, and assess risk;[18] avoid or remove unacceptable risk;[19] and provide for critical controls.[20]

• [38] If there is an unacceptable level of risk to persons at a coal mine the CMSH Act requires that:

(b) action be taken to reduce the risk to an acceptable level.[21]

• [39] Section 33 of the CMSH Act provides that coal mine workers or other persons at coal mines or persons who may affect safety and health at coal mines or as a result of coal mining operations, have obligations under div 2 of the CMSH Act.

• [40] Section 34 requires that a person on whom a safety and health obligation is imposed must discharge the obligation.

• [41] Pursuant to s 37(1) of the CMSH Act, if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person's safety and health obligation in relation to the risk only by following the prescribed way.

• [42] Mr Wilton relies on s 39 of the CMSH Act as a statutory basis upon which he states that he was entitled to not comply with the direction to train and assess the trainee issued by Ms Taylor because he contends that he requested a break from training and assessing for safety reasons.

• [43] Section 39 of the CMSH Act is in the following terms:

(1) A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations -

(a) to comply with this Act and procedures applying to the worker or person that are part of a safety and health management system for the mine;

(b) if the coal mine worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness, to give the information to the other persons;

(c) to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.

(2) A coal mine worker or other person at a coal mine has the following additional obligations -

(a) to work or carry out the worker's or person's activities in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

(b) to ensure, to the extent of the responsibilities and duties allocated to the worker or person, that the work and activities under the worker's or person's control, supervision, or leadership is conducted in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

(c) to the extent of the worker's or person's involvement, to participate in and conform to the risk management practices of the mine;

(d) to comply with instructions given for safety and health of persons by the coal mine operator or site senior executive for the mine or a supervisor at the mine;

(e) to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others;

(f) not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine.

• [44] As noted above, s 37 of the CMSH Act provides that if a regulation provides a way of achieving an acceptable level of risk, a person may discharge their safety and health obligation in relation to the risk only by following the prescribed way. The Regulations may provide for how a coal mine worker discharges their safety and health obligations.

• [45] Section 42(1) of the Regulations provides that a coal mine safety and health management system must provide for controlling risks at the mine associated with personal fatigue[22] and other physical and psychological impairment.[23]

• [46] The BMA - PDM Fitness for Work, Physical and Psychological Impairment (PPI) Management Plan[24] ('the PPI Plan') forms part of the mine's safety and health management system and is the prescribed way in which risks associated with fitness for work and physical and psychological impairment are managed at the mine. The PPI Plan was referred to in the evidence and relied on by Mr Wilton insofar as he purported to be acting in accordance with the PPI Plan when he had the conversation with at least

• [47] In order to form a view as to whether Mr Wilton was discharging his health and safety obligation as prescribed in the PPI Plan regard is required to be had to the PPI Plan's terms.

• [48] The PPI Plan sets out how a potential PPI concern can be identified as follows:

1. An Employee may be identified as having a potential PPI impairment in a number of ways including;

1. An Employee presenting for work with a medical certificate, or a Coal Mine Workers' Health Scheme Section 4, stating work restrictions;

In the case of 1a above, this may include referral to this Plan for a personal fatigue, improper use of drugs, or excessive consumption of alcohol concern.

In the case of 1b above, the provisions relating to Health Assessments and Health Monitoring in s46, s47, s48, and s48A of the CMSHR apply.

Any immediate physical signs and symptoms of injury or illness should be initially managed as a medical event and an emergency called if necessary.

• [49] A PPI concern is a concern about, inter alia, a physical or psychological impairment. Once a potential PPI has been identified, the PPI Plan provides for the following management process:

1. Where an Employee knows or suspects they have a physical or psychological impairment, or an Employee has a PPI concern regarding another Employee, the following must occur:

1. The Employee will refrain from carrying out their tasks and notify their Supervisor in accordance with their obligations under the Coal Mining Safety and Health Act (CMSHA);

1. The Employee who has the concern must take reasonable and necessary steps to ensure no Employee is exposed to an unacceptable level of risk, and notify their Supervisor in accordance with their obligations under the CMSHA;

1. contact the PDM site Paramedic or site Health Specialist to assess and manage the Employee according to this Plan;

1. where necessary assist with arranging medical care and transport arrangements;

1. All PPI concerns raised will be treated as genuine and assessed by the Employee's Superintendent, in consultation with the PDM site Health Specialist to have the reasons for concern verified.

1. The Superintendent will discuss the concern with the Employee and the Employee's support person or representative (if requested), in consultation with the site Health Specialist.

1. the consultation process will continue to develop the best strategy to return the Employee to routine duties; and

1. the Superintendent must send a PDM FRM Fitness for Work: PPI Concern Confirmation to the Employee.

1. The Employee making a conditional return to work under a Rehabilitation and Return to Work Plan, and/or;

1. The Employee requiring a medical assessment by the Employee's TMP to support development of a Rehabilitation and Return to Work Plan.

• [50] From the above, the immediate response from an employee if they have a PPI concern is to stop work and notify their supervisor in accordance with their obligations under the CMSH Act. Once notified of the PPI concern, the supervisor must undertake a number of steps, including but not limited to, contacting the onsite paramedic or the site's health specialist to assess and manage the employee and notify the employee's superintendent.

• [51] The PPI Plan continues with the process by introducing a medical assessment process, however, the medical assessment process is not relevant to the consideration of this matter as the evidence does not address any step being taken in accordance with such a process.

• [52] Finally, Mr Wilton contends that there is a "tension" between Mr Wilton's safety and health obligations under the CMSH Act and the requirement to comply with cl 4.1 of the EA.[25]

• [53] Relevantly, cl 4 of the EA provides for employees duties. Falling under that heading is cl 4.1 which is in the following terms:

• 4.1 Employees will perform such tasks as reasonably required by the Company without any demarcation of duties while complying with all legal and statutory obligations. In this regard, Employees accept that the Company can require the performance of any operational, mining, maintenance or technical tasks that Employees are trained, competent and/or authorised to perform. The Company will not allocate tasks in a manner which promotes deskilling.[26]

• [54] On the face of its terms, cl 4.1 of the EA specifically states that, inter alia, employees will perform such tasks as reasonably required by the Company... while complying with all legal and statutory obligations. Clause 4.1, by its terms, clearly contemplates the requirement of employees to perform their duties as reasonably required by BHP Coal whilst also complying with all legal and statutory obligations.

• [55] Consequently, it is open to conclude that a direction to comply with an employer's request to perform a duty or part of a duty would not be reasonable if it required an employee to act in a manner inconsistent with their legal and statutory obligations.

• [56] Whilst Mr Wilton adopts language such as that there is "tension" between his statutory obligations under the CMSH Act and the Regulations and his requirement to comply with a direction to perform a task under cl 4.1 of the EA, to be successful he must establish that the direction issued was seemingly inconsistent with cl 4.1 because it was unreasonable and, for instance, it required him to not comply with his legal and statutory obligation and the acts and/or omissions taken by management as a consequence of his failure to comply with the direction were unreasonable because when he refused to comply with the direction he was doing so on the basis that he was discharging his work health and safety obligations under s 39 of the CMSH Act and/or the PPI Plan.

• [57] Given the prescriptive statutory regime for identifying hazards and risks and then assessing hazards and risks, if Mr Wilton was acting to discharge the associated statutory obligations his actions should accord with the requirements set out in, inter alia, ss 33 to 39 of the CMSH Act, s 42 of the Regulations and cls 3 and 4 of the PPI Plan. Indeed, by operation of s 37 of the CMSH Act and s 42 of the Regulations, the PPI Plan prescribes how Mr Wilton must discharge his obligations with respect to fitness for work and physical and psychological impairment.

• [58] With respect to the matters included in the EA, and for completeness, it is noted that disciplinary processes are not dealt with in detail in the EA. Instead, BHP Coal have a policy document called the "BMA's Guideline to Fair Play Policy" ('Guideline to Fair Play') which sits outside of the EA. This policy was referred to in the evidence[27] and was invoked by BHP Coal after commencing the investigation process. The Guideline to Fair Play refers to a Just Culture Decision Tree ('Just Culture Tree') which was also referred to in the evidence. The Just Culture Tree is a flowchart which is followed to determine an appropriate disciplinary level when considering the imposition of disciplinary action.

• [59] It is within the context of this highly regulated and prescriptive health and safety environment that the Commission will now consider the evidence.

• [60] Mr Wilton, at the relevant time, was employed by BHP Coal as a plant operator at the Peak Downs open cut mine ('Peak Downs'). Mr Wilton commenced working at Peak Downs in 2002.

• [61] During the course of his employment, Mr Wilton had obtained a number of competencies including trainer and assessor, loader, dozer, digger, float and water cart. As noted above, cl 4.1 of the EA provides that an employee accepts that BHP Coal can require the performance of any task that an employee is, inter alia, deemed competent to perform.

• [62] Mr Wilton worked on D crew which operated on a three days on, three nights on and six days off rotating roster. There were approximately 30 workers assigned to D crew. At the relevant time, the supervisors on D crew included Mr Dargin and Ms Taylor.

• [63] Mr Wilton and another coal mine worker on D crew, Maria,[28] undertook the trainer and assessor duties for the crew with respect to truck driving. Although there was some evidence that Maria was not at work during the relevant time.
• [64] Because of his training and assessor duties, Mr Wilton would perform the crib relief which would require him to operate a loader or digger whilst the designated operator took their crib break. This prevented the machine from being "parked up" and allowed operations to continue while operators took a break.

• [65] The three types of training and assessing Mr Wilton performed were Full Training, Recognition of Prior Learning ('RPL') and Recognition of Current Competency ('RCC').

• [66] Mr Wilton's evidence was that Full Training was undertaken when a new coal mine worker commenced in order for them to become familiar with a machine, to complete the full paperwork for that machine and to become familiar with mine site rules, with traffic rules and "absolutely everything". It requires completion of 100 + hours of direct training supervision and then a further 300 hours of less rigorous supervision. Consequently, Full Training for an operator requires 400 hours of varying degrees of training and supervising which can take approximately four to six months to complete.

• [67] RPL requires the trainer to train and assess the coal mine worker who is familiar with pieces of machinery to familiarise themselves with the specific machine subject to the training, undertake paperwork, take them for a drive and be satisfied they can operate the machine, both during the day and at night.

• [68] Depending on the operator of the machine, an RPL assessment can take between two to four hours during daylight hours and four to six hours during night hours to complete.

• [69] RCC occurs when an operator has been deemed competent on a machine but needs to familiarise themselves with the particular machine on site. The RCC training and assessment ordinarily takes approximately four hours to complete. It is clearly the least onerous type of training and assessing in terms of time to be undertaken. As will become evident, the evidence relates to a request for Mr Wilton to provide RCC training and assessment.

• [70] Mr Wilton explained that he would ordinarily be notified that he was to undertake training and assessment with little advanced warning. His evidence was that sometimes he would be advised at the start of shift or sometimes during the shift on a moment's notice. It was not in dispute that because of his competency, training and assessing formed a large component of Mr Wilton's duties.

• [71] In his evidence before the Commission, Mr Wilton explained that he found parts of the training and assessment role stressful. He explained that this was in the context of there being a high turnover rate of workers, the amount of training and the continuous repetitiveness of the training. Mr Wilton expressed a high degree of resentment that he was one of the only operators in the crew that had maintained the training and assessing competency.
• [72] Mr Wilton expressed frustration with respect to the turnover rate of new starters. He explained that his crew would have three to four new starters who would be trained but as soon as they were trained, they would leave the mine. He described it as a "continuing revolving door".[29]

• [73] Mr Wilton stated that in the period between January 2021 to April 2021 there had been approximately seven or eight rotations of his roster and during that period of time he had trained approximately 10 to 15 different trainees.

Meeting with Superintendent Snelling on 14 April 2021

• [74] Mr Wilton's evidence is that he went and saw Mr Snelling to ask for a break from training. Mr Snelling held the position of the production superintendent for coal mining at Peak Downs at the relevant time.

• [75] Mr Wilton's evidence with respect to the conversation with Mr Snelling was as follows:

All right. Can you just take the Commission through what happened on 14 April 2021 when you spoke to Mr Snelling?

I'd finished the night shift and I went and seen John Snelling, knocked on his door, and said, "Have you got five minutes?" He said, "Yep, come in. Sit down". I said, "Look, I've had enough of training", that I'd had two really good nights on ROM Tiger, and "I need a break from training" and that I've just finished doing eight different trainees with familiarisations. He said, "By the sound of it, you need a break", and I said - he said, "You're not giving up training?" I said, "No, I'm not giving up training but I'm going away in June and back in July, I'll continue my training when I come back from holidays in July".

Okay. Did he say anything else to you that you needed to do before that took place, that?

Yeah, I had to go and - he told me to go and see the supervisor.[30]

• [76] Mr Wilton stated that it was his understanding after that discussion that he had to see his supervisor to get permission to have a break from training.

• [77] Mr Snelling's understanding of the nature of the conversation with Mr Wilton differed from Mr Wilton's evidence.

• [78] Mr Snelling's evidence was that a few weeks after he had commenced in the role of production superintendent at Peak Downs, Mr Wilton arrived at his office door. Prior to that occasion Mr Snelling had never met Mr Wilton. Mr Snelling described the conversation that occurred between he and Mr Wilton as follows:

And could you just outline your recollection of the discussion?

Yes. Will do. At the end of - and I - my normal habit is to get to work quite early and I don't - as I say, I was only - I'd been in the role a couple of weeks so I'd never ever met Kevin before, and it was towards the end of a nightshift - Kevin was on the nightshift, I was starting day - on the day's. And a gentleman knocked on my door and asked to come in and I said sure, come in.

And was that in a - in the crib room or in the superintendent's room?

No, in my office. In my office, yeah. So I said, sure, come in, how are you? And he said, my name's Kevin. I said it's nice to meet you Kevin. And I said, well, you know, just a normal conversation, what's going on. And he said, if you know, I've been busy with training, I need a break, I've got some holidays booked. I'd like to have some holidays and go and enjoy myself. And I said, that's really good. I said, it's great that you've identified that you need a break and, you know, go and enjoy yourself and look - look after yourself and we'll see you - and basically we'll see you when you - you return. So - - -

And then after that he proceeded to have a conversation around labour hire and why it's so hard to retain labour hire and Kevin was of the opinion that it was around the pay cycle and they get paid, you know, certain times of the week and we had a fairly lengthy discussion around that. And I guess, as I said, we - I can't sort of understand their pain, they only get paid for a day, it just depends how the cycle falls, but you've got to understand that provide - labour hire providers work over several different lines - several different rosters, so I suppose they need to have a pretty - you know, certain days when they pay their employees and that was about it. Wished him all the best and that was - I didn't see the gentleman again for - weeks later...[31]

• [79] With respect to the conversation, it was Mr Snelling's evidence that he did not understand that Mr Wilton was asking for his permission to take a break from training. Rather, he understood that Mr Wilton had already decided to take a break and was consequently commencing his holidays.

• [80] Following the conversation, Mr Snelling said that he had nothing further to do with

• [81] In any event, neither Mr Wilton nor Mr Snelling's evidence suggests that it can be concluded that an agreement had been reached between them that Mr Wilton did not have to perform the trainer and assessor role. Even on Mr Wilton's evidence of the conversation he does not ask Mr Snelling if he could take a break from training.

• [82] Rather, the highest Mr Wilton's evidence goes in this regard is that he stated he had had enough of training and needed a break. Further, on Mr Wilton's evidence, Mr Snelling did not grant permission for this, but instead, told him to go and see his supervisor.

• [83] Mr Wilton's evidence does not support a conclusion that he was reporting a health and safety concern to Mr Snelling on 14 April as he contends. Moreover, it appears that his statement that he had had enough of training appears to be consistent with his stated frustration arising from the high turnover of staff, particularly with the use of labour hire employees which also formed part of the conversation between the two.

• [84] On his own evidence, Mr Wilton states that he told Mr Snelling that he needed a break from training and that he would return to it when he came back from holidays.

• [85] Mr Wilton's evidence was that Mr Snelling advised him to talk to his supervisor.[32]

• [86] Accordingly, even on Mr Wilton's evidence, no agreement had been reached between he and Mr Snelling.

• [87] Mr Snelling's evidence is to the effect that Mr Wilton, whom he had never met before, entered his office and asked to talk to him. Mr Snelling's evidence is to the effect that

Mr Wilton indicated that he needed a break from training and that he was going on holidays. Mr Snelling commended him for recognising that he needed to take a break.

• [88] It is apparent from Mr Snelling's evidence that at the relevant time he assumed that

Mr Wilton was starting his leave imminently. Mr Snelling's perception of the conversation is that Mr Wilton was telling him that he needed a break and was taking leave. Mr Snelling's evidence does not support a conclusion that an agreement had been reached between he and Mr Wilton that Mr Wilton need not perform any training before taking leave. I accept Mr Snelling's evidence (which in any event does not differ significantly from the evidence of Mr Wilton) as to what was said during the discussion on 14 April. However, it is each of Mr Wilton's and Mr Snelling's perception of the effect of what was said that differs significantly.

• [89] It is further accepted, consistent with Mr Snelling's evidence, that if such an agreement had come to exist between a superintendent and a coal mine worker that it would have been formalised and placed in writing. That is because if such an agreement existed it would need to be formalised in order to comply with any relevant policy, for instance the PPI Plan, that provided a basis for such an agreement.

• [90] On this basis, I am not satisfied that an agreement was reached between Mr Snelling and Mr Wilton that Mr Wilton was not required to undertake his training and assessing duties until he took leave as Mr Wilton contends.

• [91] The conversation with Mr Snelling took place on Mr Wilton's last night shift before he was rostered to have six days off. The next roster cycle of work was not undertaken by

Mr Wilton because he had suffered an unrelated physical injury. He returned to work on the following roster which was approximately on 14 May.

• [92] Mr Wilton states that on the first shift back he went and spoke to Mr Dargin at the commencement of the shift. Mr Wilton states that he had the following discussion with Mr Dargin:

Okay. Can you just explain to the Commission what was the nature of that discussion?

So at the start of the shift Dargo[33] was out on the - the 2 South A crib hut deck and I said to Dargo that 'I've seen John Snelling about having a break from training, I need a break from training, that until I come back from holidays in July'.

• [93] Mr Wilton's evidence is that following the conversation with Mr Dargin he was under the impression that he would not need to do any training or assessing until after he came back from holidays in July.

• [94] Mr Dargin recalled having a conversation with Mr Wilton about needing a break from training as follows:

Okay. Now, do you recall having a conversation with

Mr Wilton about Mr Wilton needing a break from training?

Yeah, I - I hadn't been long back with the crew, as I'd previously been working on that crew, and Kev and I were having a chat out in our crib area and Kev advised me he was getting burnt out. He had a couple of weeks to go or a couple of swings before holidays, just wanted to know if he could have a break from it. He was getting burnt out.[35]

• [95] Mr Dargin responded to the request from Mr Wilton as follows:

So, Mr Dargin, we'll take you back to that meeting you had with Mr Wilton. What was your response to Mr Wilton to him telling you that?

It - I just stated it's - I'd worked with Kev before, I know how much training and assessing he had been doing and I couldn't see an issue with it. We - I wasn't aware of having any new trainers to be done and we could work around it, so I agreed to give Kev a - a rest, have a break from training until he came back from his holiday.

Okay. So again, just to confirm, an agreement, then, was reached between the two of you and can you just confirm your understanding of what that agreement was from that point of time?

The understanding was that Kev would not be required to do any training.[36]

• [96] Mr Dargin's evidence was that at the time the agreement was reached between himself and Mr Wilton that Mr Wilton was still in the process of training someone and would finish up training that individual within a few days. Further, following the completion of that training and assessment he agreed to give Mr Wilton a rest from training on the basis that he was not aware of any new trainees who required training before Mr Wilton commenced his leave.

• [97] Despite the agreement, Mr Dargin did state that if he really needed to ask Mr Wilton to undertake training and he could not find anyone else he would have asked Mr Wilton but "there was no need to do so".

• [98] Presumably, Mr Dargin's comment that "there was no need to do so" related to the fact that, until the morning of Ms Taylor's request, there were no new starters who needed training or assessing.

• [99] Mr Dargin gave evidence about the processes that would need to be put into play if a trainer and assessor operator was being replaced or there was not one available at the time.

• [100] His evidence was that as D Crew was in the coal department they would approach a

pre-strip crew who had their own trainer and assessor and they may have been able to call on the pre-strip to swap one of the operators around.

• [101] However, he noted that because they were sourcing someone from pre-strip they would have to replace that person so production could keep going.

• [102] It is apparent from the evidence that Mr Wilton put forward the request to Mr Dargin on the basis that he needed a break from training. Mr Wilton's evidence supports the conclusion that he was becoming frustrated by performing the trainer and assessor role. Neither Mr Wilton's evidence nor Mr Dargin's evidence suggest that Mr Wilton raised the matter in the context of asserting that he was not fit to perform his role as a coal mine worker or was suffering from a physical or psychological impairment as described in the PPI Plan. Rather, it was stated as being his preference to not perform the part of his duties that related to training and assessing as he "needed a break".

• [103] It is accepted that the agreement was acceded to by Mr Dargin on the basis that Mr Wilton complete the training and assessing that he was supervising at that time. The evidence was that it would take a few days. Further, Mr Dargin's evidence was that he agreed to the arrangement on the basis that there was no training and assessing scheduled for the crew to be undertaken prior to Mr Wilton's leave.

• [104] Accordingly, it is found that Mr Wilton did not raise a PPI concern in accordance with the PPI Plan. That finding is consistent with Mr Wilton's and Mr Dargin's subsequent conduct as neither of them assert in their evidence that they took steps consistent in any meaningful and/or genuine manner consistent with the requirements set out in cls 3 and 4 of the PPI Plan. It follows that the agreement was not formed on the basis of addressing a work health and safety concern or in the discharge of a work health and safety obligation.

Ms Taylor's request for Mr Wilton to train and assess on 26 May

• [105] On 26 May, Mr Wilton was approached by Ms Taylor who also held the position of supervisor of D crew. Mr Wilton states that Ms Taylor approached him about undertaking some training. His evidence was that the conversation occurred as follows:

Now, let's move then to the events of 26 May 2021 when you were approached by Ms Taylor about undertaking some training. So can you just take us through what you recall about being approached by Ms Taylor to do that?

So at the start of shift, it might have been just after pre-start, Stacey come [sic] up to me and asked me if I would do an O&K 170, which is a 380 tonne digger and I said, "No, that I'm having a break from training" and then "I need a break from training". I've seen John Snelling and I've seen Dargo about it, Steve Dargan [sic], and that I've had enough of training, "I need this break".

"Okay, I didn't know that you were having a break". I don't know whether she knew or not but I said, "I need this break. I need this time from training for my own health and safety".

• [106] Mr Wilton states that approximately five minutes after having the conversation with

Ms Taylor that she returned and approached him again and asked him to go and start loading trucks.

• [107] Mr Wilton continued to perform duties that morning, loading trucks and performing crib relief. He states that a little later in the morning Ms Taylor again approached him about undertaking training and assessor duties. She asked him whether he would change his mind with respect to undertaking the training and assessment. Mr Wilton states that he told Ms Taylor, "I need this break, I'm over it, go and do what you need to do."[38]

• [108] Mr Wilton states that he then went and commenced operating a truck.

• [109] It is apparent from Mr Wilton's evidence that he considered that he was entitled to reject Ms Taylor's request to conduct the RCC training and assessing at this point.

• [110] Ms Taylor gave evidence that she needed an RCC training and assessment conducted. She explained that a new person had started in D crew but that they were not new to site as they had come over to the crew from a contractor onsite and were site inducted. They could already operate other machines, in particular a digger, but were required to be made familiar with the specific digger model that was to be operated that day. Ms Taylor estimated the RCC would take a couple of hours to complete.

• [111] Ms Taylor gave evidence that she approached Mr Wilton and asked him to perform the RCC training and assessing that morning.

• [112] Ms Taylor said that Mr Wilton responded by saying that "he wasn't doing training" and that Ms Taylor should go and speak to Mr Dargin or Mr Snelling about the reason why. Ms Taylor stated that Mr Wilton did not provide an explanation to her as to why he refused to conduct the training.

• [113] Ms Taylor states that she responded to Mr Wilton by saying, "okay, I will go and find out".

• [114] Ms Taylor states that at approximately 9.00 am, she spoke to Mr Snelling who advised her that there was no arrangement between he and Mr Wilton for Mr Wilton to not perform training and assessing duties.

• [115] Ms Taylor then gave evidence that she attended "some meetings" and then went back down to the supervisor crib hut and office to organise hot seats[39] for crib time.

• [116] Whilst there, Mr Wilton approached Ms Taylor and asked whether she had him down for any hot seats to which she responded, no, because she needed him to conduct the RCC training.

• [117] Ms Taylor's evidence was that by this stage she had reached out to another supervisor in the pre-strip crew to see if they had a spare trainer to try to "smooth over Kev's[40] request to save any hassles".

• [118] The pre-strip supervisor advised Ms Taylor that it would impact production if she took a person off the pre-strip crew for training.

• [119] Ms Taylor stated that she needed the training done as she had several machines "parked up" due to a shortage of operators.

• [120] Ms Taylor states that after making the hot seat arrangements she then approached

Mr Dargin to enquire as to whether there was an arrangement between he and Mr Wilton. Ms Taylor's evidence was as follows:

... I then went to the supervisor office, which is just at the back of the crib room, sort of, it's a couple of rooms in the one building, and I saw Steve Dargan [sic] after, that which is when I asked him. I explained to him what had happened in the morning, that I'd asked Kev to do the training and that he'd said that he didn't want to do it and that he told me that he had some agreement with Steve and John, to which Steve shook his head and said, "Really?" and he said, "Oh, well, we've got no choice" or something to that effect. So he at that point basically, by shaking his head he meant no.[41]

• [121] Mr Dargin's evidence with respect to the conversation with Ms Taylor differed from

• [122] Mr Dargin said Ms Taylor came and saw him and asked whether he had an agreement with Mr Wilton. His evidence was that he advised her that he did agree that Mr Wilton did not have to conduct training until after his holiday.

• [123] Mr Dargin's evidence was that he had agreed, as a supervisor on that crew, for Mr Wilton to not be required to undertake training and as far as he was concerned that agreement should have been abided with.

• [124] It is apparent that there is a discord in the evidence about what each of Ms Taylor and

Mr Dargin say about what Mr Dargin told Ms Taylor of the "agreement".

• [125] The discord between the evidence will be considered further following the consideration of a statement of Mr Dargin taken by Ms Taylor on 27 May.

• [126] In any event, it is apparent that Ms Taylor did not understand, after speaking to

Mr Snelling and Mr Dargin, that she was prevented from asking Mr Wilton to perform the work requested of him. Ms Taylor's evidence was that after speaking to Mr Dargin and Mr Snelling she went and spoke to an HR representative.

• [127] Ms Taylor states that the HR representative advised her of a process whereby she was to speak to Mr Wilton again and to put to him that she was asking him to perform the training and to seek more information from him if he again refused the request.

First meeting on 26 May - Mr Wilton, Ms Taylor and Mr Dargin

• [128] Mr Wilton stated that following his initial conversation with Ms Taylor, he was requested to attend a meeting.

• [129] Mr Wilton did not give any direct evidence about this particular meeting in his evidence-in-chief. Under cross-examination, Mr Wilton confirmed that he recalled the meeting between himself, Ms Taylor and Mr Dargin in the supervisor's office.

• [130] Ms Taylor gave evidence of the meeting that she attended with Mr Wilton and Mr Dargin during which she took handwritten notes.

• [131] As will become evident, Ms Taylor adopted the same process after this and subsequent meetings whereby she would collate her handwritten notes and her recollection of the meeting into an email which was then sent to Mr Snelling and several HR representatives. The email correspondence sent after the meetings containing the typed-up notes[42] are accepted as evidence of a near contemporaneous record of the conversations between the parties. Ms Taylor accepted that she may not have recorded all things that were said during the meetings, but that she did her best by compiling her handwritten notes with her recollection to produce the typed-up notes.

• [132] In any event, Mr Wilton accepts the notes do provide a reasonable guide as to what occurred during the course of the meetings. The notes are accepted generally as being a reliable account of what occurred during the meetings.

• [133] Ms Taylor states that following the first meeting she sent an email[43] to Mr Snelling which was based upon her notes and recollection of the first meeting. The email to Mr Snelling relevantly states:

Kev Wilton, Steve Dargo, Stacey Taylor - 12.42pm meeting in the 2S supervisor office

ST "Hi Kev. Come in" I cleared off a bag from the couch so that he could sit.

ST "I'm sure you know what this conversation is about already, carrying on from our earlier conversation about training. At this time I'd like to offer you a support person as this will be a formal conversation since its just myself and Dargo in the room I'd like to offer you someone to sit with you. Would you like to have someone in the room with you?

Kev answered "No." Kev then said "Is this going to be disciplinary?"

ST I stated "Not at this stage it isn't but I know you're a smart man and you know that that is sometimes a possibility dependent upon outcomes."

Kev then started to talk about how he just wanted a break from training and that he's over it and that he's stated that to John that he just wanted a break. He was talking quite quickly so I couldn't quite get every sentence.

ST I stated to Kev "I can sympathise with your position however I am in a position where I need this RCC completed this afternoon using your skillset and you are the only one I can use at the moment."

Kev said "Yeh cause all these other guys got the shits and chucked in their trainer skill. I'll do the same I'll write a letter right now and take it to the training department cause I'm over it."

ST I said "My understanding is that you can't deskill yourself in that way."

Kev "Yes you can what about everyone else on the crew that's done it."

ST "That's another discussion which I'll take up separately with John."

Kev ''You are just picking on me cause I'm the only one left with the skill."

ST "I'm not picking on you Kev, I just need this RCC completed this afternoon."

Kev "Well get all these other trainers in here now and we'll talk about it."

ST "Ok well I need to redirect, at this time I've asked you to complete the RCC this afternoon with Phil and you've refused."

Kev "No I didn't refuse I've said that I need a break I just want to go on holidays and come back and I'll be right. For the past year you've been here and how much training have I done for you its been non-stop.

Kev continued stating "Well multiply that by the past 5 - 10 years it just hasn't stopped and I need a break."

ST I interrupted and again redirected, "Ok, I understand but now I'm giving you a lawful and reasonable direction to complete the task. Will you please complete it?

ST "Ok so just to confirm you are refusing to complete this task?

ST "Ok well lets just leave it there for now I'll need to get some further advice. For now please don't get back on a machine, just stay at the crib hut and I'll come back to you.

ST I then said ''You're free to leave the office if you like."

• [134] The notes from the meeting have been extracted in full in order to consider what it is alleged that Ms Taylor recalled Mr Wilton stating in response to the direction and what input of Mr Dargin is reported as having occurred.

• [135] The notes taken by Ms Taylor record that Mr Wilton again expressed his frustration at performing the training and assessing role and that he was "over it" and that he wanted to take a break from training. Mr Wilton indicated that his very clear preference was that he not perform those duties until after his holiday.

• [136] Mr Wilton maintained his position that he does not want to perform the supervision of the training and assessment and he was frustrated that he was "the only one left with that skill".

• [137] The notes also record that Ms Taylor, after discussing the matter with Mr Wilton and explaining why she needed the RCC training, issued a direction that he perform the RCC training to which he refused.

• [138] Relevantly, Mr Wilton at the time of refusing the direction did not seek to argue that the agreement had been made to manage any risk arising from a health and safety hazard nor did he seek to invoke the provisions of the PPI Plan or indicate that he was attempting to discharge his obligations pursuant to s 39 of the CMSH Act or any other health and safety obligation. Accordingly, I find that Mr Wilton refused Ms Taylor's request and the subsequent direction on the basis he had an "agreement". Mr Wilton did not raise a PPI concern with Ms Taylor during this meeting.

• [139] The notes from the meeting indicate that Mr Dargin did not contribute in any meaningful way to the meeting.

• [140] Mr Dargin's evidence about his lack of involvement in the meeting was the subject of the following cross-examination:

No, no, no, let's just focus on the meeting. I'm not interested about initial discussions. So I'm focusing on the meeting in the supervisor's room.

- - - in the early afternoon, okay? So you agree with me that the meeting was centred around the fact that he'd been requested to do the training role, he refused - - -?

- - - and then the whole meeting was centred around those circumstances and I suggest to you that if, in fact, you had told Ms Taylor about this arrangement, why didn't you sort of pipe up during the course of the meeting that there was an arrangement in place and what's all this meeting about and why are we going down this track when there's an arrangement in place between yourself and Mr Wilton? Why didn't you pipe up?

I didn't think I needed to, as I'd already instructed - advised her that there was an agreement -

But Mr Dargin, the - the meeting between, in particular, what Mr - Ms Taylor and Mr Wilton were effectively debating was Mr Wilton's refusal to undertake the training. That's what the meeting was about?

And it - and he - and I suggest to you he may have said he wanted a break from the training because he's over it, etcetera?

So he's putting forward an explanation why he's not prepared to undertake the training and there's questions and answers being given and a discussion about the situation and you just sat there and weren't prepared to sort of say to Ms Taylor, look, there's an agreement in place between him and I, this meeting's a waste of time because there's an agreement. Why didn't you pipe up? Because Ms Taylor is asking questions of Mr Wilton, on your evidence, on a false basis?

I didn't see the need to speak up when I'd already advised

Okay. Would you agree with me that in hindsight, it would perhaps have been prudent to pipe up?

No, I don't. I've just explained to you I'd already spoken to Ms Taylor prior to that meeting.[44]

Second meeting on 26 May - Mr Wilton, Ms Taylor and Mr Dargin

• [141] A second meeting was scheduled for later that afternoon. The purpose of that meeting was to give Mr Wilton written notice of his suspension for the remainder of the shift due to his refusal to comply with the direction issued by Ms Taylor.

• [142] Mr Wilton gave evidence that there was a further meeting later on in the afternoon on

26 May between himself, Ms Taylor and Mr Dargin. He states that his recollection of the meeting was as follows:

Repeated myself again that I needed this break, I'm over it. It's - I needed a break because I don't want to lose the plot with my trainees, for the safety of my trainees and for anyone else that's on crew and I believe there was a letter may have been given to me, I can't recall what the letter is.[45]

• [143] Mr Wilton states that at the end of the meeting he received a letter and that he understood he was being suspended or stood down for the remainder of the shift which only had

20 minutes remaining and was advised to come back the following morning on 27 May.

Mr Wilton reports feeling stressed at this point in time.

• [144] Ms Taylor gave evidence that she attended the second meeting and following the second meeting typed up notes taken from her handwritten notes and recollection which was sent as an email[46] to Mr Snelling.

Please see notes below on secondary discussion with Kev.

Present: Steven Dargin, Stacey Taylor, Kevin Wilton

I informed Kev that I needed to have a secondary conversation further to our previous discussion.

Kev said "yeh righto is this disciplinary action?

ST "So I have asked you 3 times to complete the RCC training. Once on the deck and twice in our previous meeting."

ST "I am now giving you a lawful and reasonable request to compete this training. Failure to execute this task will be considered refusal of duty. I have asked you and now I am telling you. Will you complete the training?"

Kev "I'm no refusing [sic] I just need a break from the training I've told you that and I've told Snelling. I'm not comfortable to give it my 100% at this stage you need to understand where I'm coming from and put across my point not just your version of what I'm saying. I don't feel comfortable to do the training at the moment I need a break."

ST "I do understand your position but I also have some obligations and I need the training completed. Will you complete the training?"

ST "Are you aware of the consequences if you refuse?"

ST ''You can potentially be stood down and or face disciplinary action."

Kev "Alright well I'll just put it in to dispute we'll get Noono down here right now."

ST "We aren't at that stage right now. I am just asking you to complete a task as a supervisor and confirming that you are refusing to complete that task." "I'll just confirm again you are sure that you don't want to just go and do the training this afternoon?"

ST "Ok well I now need to let you know that you are stood down for the remainder of this shift. Please stay at the crib hut and do not hop on a machine. Please come back to work tomorrow morning and we can catch up again.

ST "If you change your mind between now and then, please let me know. I have my phone on me also just let me know an [sic] I can come see you if you need."

Kev "yep ok" "I just wish you could see it from my point of view that I'm needing a break from training. I'm not going to do it if I can't give 100%. You know what I'm like."

ST "I understand what you're saying but that doesn't change what I need right now and I need to be able to utilise your skillset while you are fit for work. I have a digger driver here that could have been out on his own in maybe about 2 hours because he is already passed out on this site, just needs a famil on this digger."

Kev "Yeh but I'm not going to do it if I don't feel comfortable to do it."

ST ''Are you sure you don't want to change your mind?"

Kev "Yes" "I've had enough the turnover is so high I am sick of the constant training and it's disheartening when all the people do is leave its been constant for 5 years or more."

ST ''Alright, well we'll leave it there. Just don't leave the crib hut area this afternoon. We will catch up in the morning."

• [146] The extract of Ms Taylor's records of the meeting give some insight with respect to

Mr Wilton's response to the re-issuing of the direction.

• [147] Relevantly, when issuing the direction Ms Taylor provided Mr Wilton with an explanation that she required the training to be undertaken.

• [148] Mr Wilton acknowledged that and, in addition to repeating that he wanted a break and did not feel he could give 100 percent, also stated in response to the direction, "[n]o, I don't want to".

• [149] Mr Wilton explained his reasoning for his position further when he stated, "I've had enough the turnover is so high I am sick of the constant training and it's disheartening when all the people do is leave its been constant for 5 years or more."[47]

• [150] Ms Taylor's account of the meeting as contained in the notes is preferred to Mr Wilton's evidence at the hearing as to what he recalled he said during the second meeting.

• [151] From the above, it is apparent that Mr Wilton felt frustrated from the high turnover of staff. From the notes, there is no evidence that Mr Wilton tried to contradict Ms Taylor when she referred to him as being fit for work. Consequently, Mr Wilton was stood down for the remainder of his shift following his refusal to comply with a direction.

• [152] Further, I am satisfied that Mr Wilton did not raise a PPI concern with Ms Taylor in the course of this meeting.

First meeting on 27 May at 8.30 am - Mr Wilton, Mr Noonan, Ms Taylor and Mr Snelling

• [153] Each of the witnesses spoke of several meetings that occurred on 27 May but only

Ms Taylor was able to describe the nature of the first meeting.

• [154] Ms Taylor states that the purpose of the first meeting was to discuss with Mr Wilton what had occurred the day before and to advise that a process had been commenced investigating his conduct.

• [155] Ms Taylor consistent with her practice the day before took notes in the meeting and then relying on those notes and her recollection of the meeting compiled a written record of the meeting that she sent to Mr Snelling and others. The email[48] relevantly said:

Jason Noonan, Kevin Wilton, Stacey Taylor, John Snelling

ST "Further to the discussions from yesterday we would like to progress further from the stand down to a stand aside."

ST "I will just read out the letter for everyone in the room."

ST "From here we would like to set up another meeting at a time suitable to yourself where you may bring your support person if you choose to put our allegations to you."

JS "Ok well give us half an hour to prepare and we will meet you bock at say 9.30?"

Second meeting on 27 May at 9.30 am - Mr Wilton, Mr Noonan, Ms Taylor and

• [156] A further meeting was scheduled for 9.30 am on 27 May at the mine site. It is apparent from the evidence that the purpose of this meeting was to put the allegations to Mr Wilton with respect to his failure to comply with a direction.

• [157] In attendance at that meeting were Mr Wilton, Mr Jason Noonan, Ms Taylor and

• [158] Mr Noonan attended the meeting as Mr Wilton's support person, although it is noted that he also spoke on Mr Wilton's behalf at the meetings.

• [159] By way of background, Mr Noonan gave evidence that he was employed as a production employee operator at Peak Down's on D crew, the same crew as Mr Wilton. During the relevant time, Mr Noonan was assigned to the post-strip area which meant that he had a different supervisor and superintendent to Mr Wilton.

• [160] Mr Noonan held competencies in excavation operator, dozers and trucks. He also held a competency as a trainer and assessor.

• [161] Mr Noonan became involved in Mr Wilton's matter as a consequence of being the Vice President of the Construction, Forestry, Mining and Energy Union's ('CFMEU')[49] Peak Downs lodge. He attended several of the relevant meetings as Mr Wilton's support person, he described taking notes during the course of the meetings although no notes taken by Mr Noonan were tendered into evidence.

• [162] Mr Noonan described attending the meeting on 27 May with Mr Wilton,

Mr Snelling and Ms Taylor. He states that he recalled Ms Taylor reading out an allegation that Mr Wilton had refused to train and therefore was in breach of cl 4.1 of the agreement.

• [163] Mr Noonan recalls that Mr Wilton responded that the reason he refused was that he needed a break from training because he was stressed out and had had enough of training and he wanted to refresh and come back to training after the holiday.

• [164] Mr Wilton gave evidence about his attendance at the second meeting on 27 May.

• [165] Mr Wilton states that he recalls that it was said to him that the purpose of the meeting was to discuss his refusal of duty on the previous day. Mr Wilton understood that he was being asked to provide his version of events during the course of that meeting.

Mr Wilton states that he said the following things:

Okay. And you say that you were putting your side of the story across, so can you just explain what you believe was part of that - or was the content of that meeting, that second meeting?

It was that "I'd already gone and seen John and that I've asked for a break and youse aren't allowing me to have time out that I need to get meself [sic] refreshed after I come back from holidays. I needed this break and you guys are not listening to me". And I believe what I was doing by pulling myself back was for my own health and safety and the safety of others on crew.

Okay. Mr Noonan was also in the meeting. Do you recall if he said anything and, if so, what?

So you got the opportunity to put your side across. Was there anything else said in that meeting from Mr Snelling or Ms Taylor in response to that?

Only that it was refusal of duty and I - I failed to take a directive.[50]

• [166] Ms Taylor also gave evidence about attending the second meeting on 27 May. Her evidence was that during the course of that meeting the Just Culture Tree was discussed with Mr Wilton.

• [167] As with the earlier meeting, Ms Taylor made handwritten notes and relied on those notes and her recollection of the meeting to draft an email[51] to Mr Snelling. The email relevantly stated:

Jason Noonan, Kevin Wilton, Stacey Taylor, John Snelling

JS "We are here to put our allegations to you and allow you an opportunity to reply."

JS reads out allegation. "CMW refused lawful and reasonable request by supervisors to perform the assigned task to complete RCC training with another CMW on 26/05/2021."

KW "Well it's the same as yesterday I discussed with Stacey that I need a break from training. I saw you four rounds ago and said I wanted a break from training and you told me to see my supervisor. Stacey was away that round. So I saw Dargo the next round and he was ok with it. I am not 100% with training at the moment. I'm not refusing to train cause the guy has the skill or anything. This is at the stage now where its bullying and harassment. I was going to go on leave and then come back from leave and get back into it, but I don't think so anymore. You's just don't know when to stop. It's not right.

JN "You's aren't looking after your people's wellbeing at the moment. Why are you doing this? You are putting people at risk by pressuring them."

JS "I wont put anyone at risk. But I wont respond now, I'll consider what you've said."

JS "I'll just follow the process then consider what you've said." "Anything else from either of you?"

JS "Alright we'll consider it then. Then we will meet back at 10.30am approximately if that suits of 12 at the latest I can do?''

• [168] As noted above and is evident from the notes of the meeting, the allegation was put to Mr Wilton and it is apparent that Mr Wilton was given an opportunity to respond to the allegation.

• [169] Mr Snelling gave evidence that he relied on the notes produced by Ms Taylor following the two meetings on 27 May which she emailed to him. During the course of his evidence, Mr Snelling was taken to the notes and was questioned as to whether they accurately recorded the discussions that took place during the course of the meetings. He indicated that he considered them to be "all pretty correct".

• [170] Under cross-examination it was put to Mr Snelling that Mr Wilton had asked Mr Snelling if he could have a break from training until he returned from leave. Mr Snelling's evidence in this regard was as follows:

Well, I suggest to you that he said to you that he was tired of training, that he needed a break from training and could he have a break from training until he returned from leave?

No, he definitely never asked me could he have a break. He said I've - as I said before, he said, "I need a break. I've got holidays booked" and as I said, I - "Great that you've identified that, mate. Go and enjoy your - go and enjoy your break, maximise your time and when you come back, work with your supervisor".[52]

• [171] Further, it was put to Mr Snelling that he had told Mr Wilton that he needed to raise that he needed a break with his supervisor. Mr Snelling denied this on the basis that he said Mr Wilton never asked him for a break from training.[53]

• [172] Mr Snelling, under cross-examination, gave evidence that it was highly unlikely that an agreement between a supervisor and a coal mine worker would be made and then not formalised. He expressed a view that if an opinion had been formed that a coal mine worker "cannot train due to such and such" then a suitable duties plan would be created in accordance with consultation with the doctor.[54] Mr Snelling's evidence was that it was unlikely that you could train one day and then not train the next.

• [173] During the second meeting, it is apparent that Mr Wilton was starting to feel stressed by the process and felt like he was being bullied because he refused to conduct the RCC training. I accept that Mr Wilton's stress arose from the process commenced following his refusal to comply with the direction.

Third meeting on 27 May at 10.30 am - Mr Wilton, Mr Noonan, Ms Taylor and

• [174] The parties returned for a further meeting at 10.30 am. The purpose of the meeting was to put to Mr Wilton the determination from the Just Culture Tree process. It was found that Mr Wilton had engaged in "deviant behaviour" within the meaning of that term in the Guideline to Fair Play and the Just Culture Tree. This was based on the substantiation of the allegation and the consequential finding that Mr Wilton had contravened cl 4.1 of the EA.

• [175] Mr Noonan accepted under cross-examination that by the conclusion of the 10.30 am meeting it was "fairly and squarely" raised with Mr Wilton that a request had been made to Mr Wilton on 26 May to conduct training by Ms Taylor on multiple occasions but that Mr Wilton had indicated that he was not prepared to undertake the training that was requested of him.[55]

• [176] In his evidence, Mr Noonan maintained that in his view the Just Culture Tree had not been correctly followed by BHP Coal's management. If that was the case, the alleged non-compliance with the Just Culture Tree did not form part of Mr Wilton's contentions and will not be considered further.

• [177] Mr Noonan gave evidence that at the conclusion of the last meeting Mr Wilton was informed that he was stood down from duties pending further investigation. He described that Mr Wilton appeared to be frustrated and stressed at the conclusion of that meeting on 27 May.
• [178] Again, Ms Taylor took records of the meeting which she used, together with her recollection, to draft an email[56] to Mr Snelling which is set out as follows:

Please see notes from the third meeting today with Kevin.

Jason Noonan, Kev Wilton, John Snelling, Stacey Taylor

ST "alright so further to our previous meeting we have consulted the Just culture tree and determined that this is a deviant behaviour. I'll just read out the allegation and the particular clause for reference."

ST reads allegation and EA clause Employee Duties 4.1 aloud.

ST "Do you agree or disagree with the allegation."

JN "I'm lost here hey. How you've come up with that."

JN "How's this a deviant act? So how've you come up with that"

ST "By the request that was made to Kev yesterday by myself to Kev, multiple times."

KW "but multiple times I've given you an answer and you still don't"

KW "You just can't get it that I wanted that break from training. And the more you push the more aggravated I'm getting and I'm just not gonna deal with it alright. I'm not gonna put anyone's health nor mine or anyone else out there in harm's way because I'm not gonna do my job to 100% I need to do. That's why I wanted the break and you's aren't giving it to me. By doing this you're making things worse. I can't understand why you's are even pushing this. It's not hard to ask for a bit of time away from a job that I've chose on my own self to do. I'm not employed to do that job. I've volunteered to be a trainer assessor alright. I'm not getting paid any extra to volunteer to do a trainer assessor's role. So if I feel that I need to stand back I should have every right to stand back from what I feel is unsafe and it is unsafe. I'm unsafe to be training someone when I don't feel I'm right to do it.

ST "Ok so now that you've raised that you feel unsafe could you explain why and is there some kind of underlying issue that we need to be made aware that we can further provide assistance to you?"

JN "Well I'll put it to you now, he's stressed. There's 1 trainer on the crew. Ok. And you've got how many people coming through getting trained all the time. Is that going to put stress on you or not?"

ST ''There is more than one trainer just to confirm that."

JN "Well for the time being there only been 1 trainer. I just wanna know how you've come to the conclusion it's a deviant act, after he's given you fair warning that he wants a break from training. How is that a deviant act?"

JS "We believe it was a lawful and reasonable request."

JN "But he'd actually asked you months ago if he could have a rest from training."

JS "There was more to the discussion than that, a lot more to the discussion."

KW "What was the more discussion with it? You told me to talk to the supervisor next round is that correct?"

KW "Yes that's correct. You told me to see the supervisor. Stacey wasn't on that round neither was I. Stacey was not on there the following round nor the round after. Dargo was my supervisor. I seen Dargo. So is that not following what you asked me to do?"

JS "If that's how you see it, then that's how you see it."

JS "So you mentioned the health. Any more on the health that we need to be aware of?"

JS "You said it's affecting your health. Is there something we need to help you with?''

KW "Yeh. I want a break from training. That's all I've asked. Let me have my break from training so I can come back healthier and a mindset and do my job."

JS "Alright we'll take all that into consideration."

JN "So John I'll put it to you, do you want people out here training with their heart and their heads not in it? Do you think that's a safe practice"

JS ''There was a few other things said as well Jason."

ST "I guess I would redirect that and put it back to yourselves. If you're not in a position to perform a duty that you have the skillset on your LMS to do. Then why are you coming to work?"

KW "No, no no. I volunteered to be a trainer assessor. So I'm asking to step back for 5 rounds and then get back into the role, that's all I've asked. It's a volunteered role. I am not paid any extra to do it. It's a volunteer role."

ST "From what I understand the company gives you that skill along with every other skill that they give you and no skill that you receive from the company is voluntary. The company provides those skills to you so that you can utilise them for the company."

JS "Just be mindful that all Stacey was asking you to do was an RCC so it wasn't full training or anything like that."

KW "It's not full training but it's still a full familiarisation, walk around, operation of the machine and everything else."

KW "And I didn't feel up to the task. I wanted the break. It's not hard to ask for that break."

JS "If you think back to the discussion we had where you discussed the time you had booked in and I said make sure you maximise the time. The discussion was that when you come back from holidays you need to see your supervisor

JN "The agreement was that he come back after the holidays."

JS "There was no agreement. The training skill is not a nice to have if you are required to assist your supervisor then you will need to."

ST "If that's suitable otherwise you're more than welcome to take a longer break away."

KW "Let's get it over and done with find out what's going on."

• [179] It is apparent from the extract of the notes that after advising Mr Wilton of the finding in relation to the allegation that Mr Noonan and Mr Wilton attempted to dispute the finding. It was in the context of responding to the finding that Mr Wilton contended that it was unsafe for him to supervise the training and assessment. It is accepted that Mr Wilton describes feeling stressed and was stressed at the conclusion of the third meeting.

Fourth Meeting on 27 May at 12.40 pm - Mr Wilton, Mr Noonan, Ms Taylor and

• [180] Following the third meeting, Mr Wilton was invited to attend a fourth meeting later that day. The purpose of that meeting was to seek further information for Mr Wilton regarding his fitness for work. Mr Wilton recalls that the same people were in attendance as the meetings earlier in the day. Mr Wilton states that he was advised that they alleged he had refused duty the previous day and had failed to comply with the directive in accordance with cl 4.1 of the EA.[57] Mr Wilton states that he did not believe that they were correct and advised them that he understood he was doing the right thing by pulling himself away from harm's way and putting others at risk of putting them in harm.

• [181] Mr Wilton states that his state of mind during the course of this meeting was "all over the shop" and that he could not believe he was "being punished for what I thought was a safe thing to do at that time".

• [182] Mr Wilton was sent home and advised that he would be telephoned the following day, 28 May. He states that he was feeling confused, lost and stressed at that point in time.

• [183] Again, Ms Taylor took records of the meeting which she used, together with her recollection, to draft an email[58] to Mr Snelling which is set out as follows:

Please see notes from fourth meeting with Kevin from today.

Meeting 4 in Ripstone Room 27/05/ 2021 12.40pm

Jason Noonan, Kevin Wilton, Stacey Taylor, John Snelling

ST "Ok. Thank you. Sorry we're a bit late John's last meeting ran over. Further to our last conversation Kev you indicated that you were'nt [sic] fit to perform that specific part of your normal job role in terms of the training. So we'd just like to ask if you could provide further context as to why, specifically that part."

JS "You don't have to elaborate we're just asking if you wanted to add anything further?"

ST "Particularly because you indicated that you weren't fit to do that particular task, you didn't feel confident to do it or words to that effect."

KW "Lets just say an overload of training over the last 10 years alright. Just continuous. You get one person, in one leaves. Four people come in, three people leave. When you see that constantly it wears thin. Sorry.

ST "Is there any assistance that you need at this stage from the company in terms of your own personal health?"

KW "No. Just time. Left alone not to do any training that's all I ask. Other than that I'm fine but I'm not getting the assistance that I should be getting."

ST "Ok. So from here given some of the other things that you've raised throughout our previous meetings we'd like to take the time to pause our discussion with you whilst we investigate the things you've brought to light and then we will come back to you and try to schedule a meeting with you at a time that suits. For now we will keep you as stand aside on your full pay so this afternoon you will be able to go home. We will be in contact with as soon as possible once we investigate the other things you've raised.

ST "'So we will definitely aim to have it closed out by the end of the round given [you] will be on leave."

JS "We'd like to investigate it thoroughly before I make a decision on it. We will take everything on board what you've said.

KW "Yeh I'm honest like I've said I'm not trying to avoid training at all I just want that break. I don't think its too much to ask to have a few rounds off go away on holiday be refreshed and kick it off again. I don't think it was too much to ask."

JS "We will take all of that on board and consider it. You got anything Jase?"

JN "No I'm all good mate I think its just got to run its course now."

JS "Alright thanks for your time we will talk soon."

ST "In terms of you getting home you've got your vehicle or would you like a lift home?"

KW "No I'll need a lift home please so I can leave the car for Kylie."

ST "Yep I'll organise that for you I'll just have to sort out a car. Please also remember to reach out to the EAP service if you do feel like you need to talk about this given all of the things you've stated about how you're feeling. Just make sure you use that service if you need to."

• [184] From the above extract, Ms Taylor and Mr Snelling appear to attempt to enquire further of Mr Wilton about his statement that he was not fit to undertake the training and assessing duties in the context of being at work and contending he was unfit to work.

• [185] Upon being specifically asked about his fitness for work, Mr Wilton did not provide any additional information about the basis for his alleged unfitness and reiterated his preference that he not perform the training and assessing duties. Mr Wilton appeared to continue to assert that he was fit for work whilst at the same time expressing, he felt "unsafe".
• [186] It is open on the evidence to conclude that Mr Wilton was fit for work and had a preference not to perform the training and assessing duties. It appears as the meetings progressed, particularly on 27 May, that Mr Wilton attempted to tie his reluctance to do the training and assessing with some sort of safety issue.

• [187] However, Mr Wilton did not meaningfully raise any PPI concern and in a manner which would discharge his obligations under s 39 of the CMSH Act, if that provision had been enlivened, and so as to properly place his supervisor on notice of his PPI concern. It is concluded that the reason for this is that there was no PPI concern that formed the basis for Mr Wilton wanting to take a break from training.

• [188] The meeting was concluded by BHP Coal's management stating that it was considering the responses made and the parties would meet again the following day, 28 May.

• [189] As part of the process of investigating whether Mr Wilton had an agreement in place with Mr Snelling and/or Mr Dargin, Ms Taylor went to speak with Mr Dargin on 27 May, noting that she had previously seen him about the agreement on the morning of 26 May, and was left with the impression that there was no agreement.

• [190] Given Mr Wilton's assertion of there being an agreement in place, Ms Taylor was advised by HR to collect a statement from Mr Dargin.

• [191] Ms Taylor's evidence was that she went and saw Mr Dargin on the afternoon of 27 May and asked him if he could write a statement in relation to the matter.

• [192] Ms Taylor states that Mr Dargin did not want to write up a statement. Ms Taylor said that she had her laptop with her and typed up the conversation she had with

Mr Dargin and later emailed to Mr Snelling. That document was tendered as Exhibit 13 which relevantly states as follows:

Please see notes from discussion with Steve Dargin this afternoon to aid investigation in to Kevin Willton's [sic] alleged agreement he made with Steve.

ST ''So to provide you some context Kev alleges that he made an agreement with yourself approximately 3 rounds ago where he requested a break from training completely from that conversation up until he returned from leave at the end of June. What we need to get from you is your version please if this occurred at all or not. Do you want to hand write it or would you like me to type it?"

ST "Alright well you just talk me through it when you're ready."

SD "Kev came to work the week after he had his sick leave when he had the time off for his foot. He was limping around so I spoke to him about that. Then the issue of training came up. He said listen I've really had enough and I only have a couple of swings left til holidays so he didn't want to do any more until he came back. I had a look at what we had coming up at the time and there were no new starters booked in at the time that would require training. I said to Kev yep that's fine. When you come back from holidays you can get right back to training. There was nothing on the horizon for new starters so I agreed to it."

ST "Did you say to Kev that we would need him to step back in to training if we requested it?"

SD "No, not really there was nothing on the radar with any new starters."

ST "Was there any witnesses to the conversation?"

SD "No just us" "It would have been a couple of swings ago cause it was a nightshift."

SD "It was more of a gentlemen's agreement than anything just because there were no new starters on the horizon."

ST "yeh ok that makes sense, so it was left open to interpretation that he may need to do training if we were desperate."

SD "well we didn't discuss it but it was just a gentlemen's agreement."

ST "alright well I'll just be sharing these notes with John and HR are you ok with that?"

• [193] Under cross-examination, Mr Dargin was taken to the statement[59] and largely confirmed that it was an accurate reflection of the discussion with Ms Taylor. However, Mr Dargin stated that he could not recall Ms Taylor putting to him that Mr Wilton might step back into training if it was requested of him and he also did not recall Ms Taylor saying the agreement "was left open to interpretation".

Meeting on 28 May - Mr Wilton, Mr Noonan, Ms Taylor and Mr Harper

• [194] On 28 May, Mr Wilton received a phone call from Ms Taylor who asked him to attend a meeting at 4.00 pm that day. In attendance at that meeting was Mr Wilton,

• [195] The purpose of the meeting was to advise Mr Wilton of the disciplinary action to be taken following the substantiation of the allegation. Mr Wilton understood that he was advised that he was permitted to return to work on full duties but that he may be required to train. He says that his response to that was, "no, and I'll probably never train again".

• [196] Mr Wilton was advised at the conclusion of that meeting that he would be placed on a Step 2[60] and further that a written note would be placed on his employment file stating that he had refused duty. He understood that being placed on a Step 2 was a type of disciplinary step.

• [197] At the conclusion of the meeting, Mr Wilton asked to see the paramedics on site because he was feeling under stress and needed a break.

• [198] Mr Noonan stated that he recalled that during the course of the meeting Ms Taylor spoke to Mr Wilton about the "Just Culture Tree" and advised that the employer had come to the conclusion that Mr Wilton was to be placed on a Step 2.

• [199] Ms Taylor gave evidence that Mr Harper attended this meeting in the absence of

• [200] Ms Taylor described the meeting as a "close out" meeting.

• [201] Again, Ms Taylor consolidated her handwritten notes and her recollection of the meeting in an email[61] sent to Mr Snelling. The email relevantly states:

I have attached Just culture and below are my notes from the meeting with Kevin Wilton 28/05 where he was informed of the Step 2.

Jon - Could you please draft the Step 2 letter from Kevin and send through?

Kevin Wilton, Jason Noonan, Stacey Taylor, Kyle Harper

ST "Thanks for coming in Kev appreciate it. Thanks as well Noono [sic] for freeing up your afternoon. So we are here to discuss the just culture as I told you yesterday we started the process and then you gave us some further information to investigate. We have completed that investigation now. So we will put our allegation to you again and then follow through the just culture steps from there.

ST reads out allegation and the clause from EA breached.

ST "Do you agree or disagree with the allegation?"

ST "Yep. Is there anything else you'd like to add to the why that you didn't add yesterday?"

KW "There's a word in that 4.1 clause 'competent'. So at the time that you've asked me and four rounds ago when I've seen the superintendent and Dargo, I was not competent to be training. Simple.

KW "Not to do my duties to 100% and I'm not going to put anyone at risk."

ST "Ok. So do you mean not competent to operate the machine or not fit to be at work?"

KW "Not fit to be training someone in the head space I was in. That's why I seen the superintendent and seen Dargo to have time out."

ST "yep. So would you say that you were fit for duty on that shift?"

KW "Yes. On all those shifts. I just needed time out. I'm fine. There's nothing wrong with me. All I've asked is time out which you's will not allow. No. I should say, You will not allow." (pointed finger at ST) raised and agitated voice at this stage.

ST "So is your understanding of being fit for duty that you can only perform part of your task or your skillset when you come to work, or all of your skillset?"

KW "So as of the 14th of April I could only do part of my skillset. Not the training part of it which I've asked to have a break from."

ST "Ok so the date is new, you didn't mention that yesterday."

KW "I had to go back through my diary. It was the end of a nightshift before I had off on my sick leave, and then the round after that I seen Dargo and told him which is the 2nd of May."

ST "Ok. So if you're saying that you weren't fit to perform part of your duty during that time; but yet you still attended work?"

KW "The training side of it not anything else. I did everything else. I just didn't want to do any training."

KW "I do feel that's reasonable cause it's a voluntary position."

ST "Ok. Is there anything else you'd like to add?"

ST "alright well we will break for five minutes now to consider what you've said there and then come back and go on to the next step if that's ok with you both?"

Second part of meeting 4.15pm 28/05/2021 in Winchester Room

ST "Thanks for letting us take that break. Thanks Kev for all the things you told us this afternoon so far. We have considered what you have raised. So your stand aside period will end as of this afternoon and you will be able to return to your next rostered shift provided you are fit to perform your full duties which may or may not include training."

JN "You're not getting it Stacey. He's requested to have a break from training cause its stressing him out. Can you not understand that?"

JN "So then you're going to ask him to go and train." Slightly raised and agitated voice from this point on.

JN "So is there a chance you're going to ask him to train?"

ST "There is a chance if we are in a desperate position like we were two days ago."

JN "He's asked to have a break from training because he's stressed. Do you want to put someone in a mental hospital or something like that?"

KW "Why can't yous give me what I want. That's what you're not getting. I want time away from it until I come back from holidays. As of yesterday or the first dayshift, the training thing is done. It's finished. I refuse to do it ever again." Agitated voice and slightly raised.

ST "Let's just take it down a step because that's a separate issue Kev."

JN "I just can't fathom how he's requested not to train. It's a reasonable request."

ST "I understand, but the request that I made was reasonable."

JN "Not after he's asked for a break. It is Stace. There's trainers all over the mine site. What's wrong with coming to grab me or Potter or someone like that? What's stopping you from doing that?"

ST "Well look we aren't here to debate that one."

JN "Instead of having to go down this road, there's other avenues you could take."

ST "Yep I'll take that on board what you're saying Jase."

JN "I dunno we're just going round in circles Stace this is causing more drama if you do ask him to train. We'll be back in here again cause you're going to get him for trying to refuse duty again. Am I correct?"

ST "I can't predict the future Jase so I don't know. Anyway that's definitely not productive at this stage so let's move on cause we're here to discuss one issue which happened on 26/05."

ST repeated that the stand aside ending and return to work as long as fit.

ST "You may also choose to submit leave for consideration if you wish considering how you may be feeling at the moment. So, from here as well we have decided to issue you with a step 2. So it will be a written warning so that will start from today and we will issue you a written letter confirming that as soon as it is available from HR."

JN "Who came up with that decision? Yourself, or was it John?"

JN "So you both? This is for dispute purposes so I can skip yourself and John and go straight to Des. I need to know that."

ST "From my knowledge you'll need to follow the chain of command unless its directly against either one of us as an individual. However I would refer to the dispute resolution part of the EA to confirm. Please do let me know as soon as possible what you've decided to do in terms of returning back to work. I'd also like to remind you that we've provided you the EAP contact information should you like to use the free service. That concludes the formal part of the meeting."

ST "You'll be all good to travel back home this afternoon. Do you need any assistance to get home at all?"

KW snickered at my question "No I'll be all good."

KW "I'd like to talk to Jase alone for a second."

JN calls for KH to come back in to the meeting room. KH then escorts KW to the paramedic. JN also attends.

• [202] Mr Wilton attended a doctor, Dr Kumar, on 29 May 2021.[62]

• [203] Mr Wilton stated that Dr Kumar advised him to go and have his holidays, come back and then get back into training. As a result, he was given a medical certificate for the remaining three-night shifts of his roster before he commenced his holidays.

• [204] As noted above, the agreed date of injury is 29 May 2021.

• [205] As noted above, the stressor nominated by Mr Wilton does not identify, with particularity, the acts and/or omissions of management that he relies on in support of his position. Accordingly, a global assessment of the relevant management action will be undertaken further below.

• [206] The factual issues that remain in dispute are informed by the relevant background information including the details with respect to there being an "agreement" in place.

• [207] As derived from Mr Wilton's submissions, great weight is placed upon there being an "agreement" in place that he was not required to conduct the training and assessing for

• [208] The continued use of the term "agreement" and the weight of the reliance placed on there being such an agreement during the course of the appeal implies, at least, that there was a formal agreement in place which had the effect of overriding Mr Wilton's obligations, including those contained in cl 4.1 of the EA.

• [209] In doing so, Mr Wilton attempts to rely on s 39 of the CMSH Act and the PPI Plan as the basis upon which he sought the agreement.

• [210] Accordingly, a finding is required to be made not only as to whether there was an agreement in place but who the parties to the agreement were, on what basis the agreement was formed and, if an agreement was formed, what were its terms. Consideration will also need to be had as to whether such an agreement was made having regard to the relevant work health and safety obligations of the respective parties to the agreement.

Was there an agreement between Mr Snelling and Mr Wilton?

• [211] The evidence above suggests that Mr Wilton asserts that the reason he was entitled to refuse Ms Taylor's request was that he had an agreement in place with, inter alia,

Mr Snelling that he not perform training and assessing duties until he returned from holidays.

• [212] Whilst Mr Wilton contends that he had an agreement with Mr Snelling, that conclusion is not supported by the evidence, including Mr Wilton's evidence.

• [213] As noted above, it has been found that there was no agreement in place between

Was there an agreement between Mr Dargin and Mr Wilton, and if so, what were its' terms?

• [214] Mr Wilton's evidence is that he approached Mr Dargin and told him that he had seen

Mr Snelling about having a break from training and further that he needed a break from training until he comes back from holidays in July. On Mr Wilton's evidence Mr Dargin responded by saying, "yes, no worries."

• [215] Mr Wilton stated that his understanding of the arrangement from that point onwards is that he would not do any training or assessing until he came back from his holidays without exception.

• [216] The difficulty with accepting Mr Wilton's evidence in this regard is that it appears that the arrangement did not immediately take effect as Mr Dargin required Mr Wilton to complete the supervised training and assessing of a coal mine worker over the course of the next few shifts.

• [217] Mr Wilton did not speak of Mr Dargin's requirement that he complete the supervision of the training and assessing he was part way through in his evidence-in-chief.

• [218] Mr Dargin's evidence addresses the basis upon which he understood the arrangement came into effect.

• [219] Firstly, Mr Dargin understood that Mr Wilton made the request as he was starting to feel "over training".

• [220] Further, Mr Dargin's evidence is that he agreed to the break from training as he was not aware of having any new training to be done and that they could work around Mr Wilton's request.

• [221] Mr Dargin's evidence confirmed that Mr Wilton was, at the time of their discussion, still training someone and had a few days to go.

• [222] Mr Dargin's further evidence was that during the period before Mr Wilton took holidays if they needed training undertaken that he would have asked Mr Wilton if he really needed to and could not find anyone else to do it. His evidence is that he "would've asked but there was no need to."

• [223] Mr Dargin described the agreement as "a gentleman's agreement" and it is not in dispute that this agreement was not formalised in any way, including in writing.

• [224] Accordingly, there was an arrangement between Mr Dargin and Mr Wilton that after

Mr Wilton had completed the current training he could have a break from training until he took his holidays.

• [225] Mr Dargin's evidence is that he agreed to this arrangement on the basis of, inter alia, that there was no new training to be done. It appears Mr Dargin agreed to Mr Wilton's request to keep him happy and because he was aware of the large amount of training and assessing Mr Wilton ordinarily performed.

• [226] It is apparent from the above, that when the agreement was entered into it was due to

Mr Wilton being frustrated with the training and assessing process and because he expressed a desire to take a break from it before taking his leave. Although he did not articulate it to such a degree when he made the request to Mr Dargin.

• [227] It was Mr Wilton's intention to recommence training when he returned from leave.

• [228] Further, there is no evidence to suggest that at the time of entering into the agreement that Mr Wilton or Mr Dargin had a genuine PPI concern about Mr Wilton's fitness for work, including in discharging his duty to complete the supervision of the training and assessing from a health and safety perspective. Or to put it another way, the evidence did not establish that either Mr Wilton or Mr Dargin identified that the performance of

Mr Wilton's duties, including training and assessing, created a hazard that posed a risk to the health and safety of coal mine workers and others at the mine within the meaning of the CMSH Act. Given the strict statutory requirements and the obligations placed on both Mr Wilton and Mr Dargin it is unlikely that if either Mr Wilton or Mr Dargin were genuinely concerned that Mr Wilton's training and assessing duties posed a risk to his fitness for work or to the safety of him or other coal mine workers:

(a) Mr Dargin would not have required of Mr Wilton, and Mr Wilton would not, in the days following the agreement, have continued and completed the ongoing training and assessing; and

(b) that no steps were taken to immediately remove Mr Wilton from performing his duties as a coal mine worker and to comply with the PPI Plan to ensure he was fit for work.

• [229] Even if, for the sake of the argument, it is accepted that a safety reason was one of the reasons Mr Wilton[63] made the request to pause training and assessing, I find that

Mr Wilton did not articulate that in any meaningful way when he made the request to

Mr Dargin and certainly not in the manner required of a coal mine worker discharging his obligations pursuant to s 39 of the CMSH Act or acting in accordance with the PPI Plan.

• [230] The reality is that if Mr Wilton had a genuine safety concern about his fitness for work, including his ability to perform his training and assessing duties then he should have taken steps to immediately stop work and escalate his health and safety concern through the PPI Plan. The PPI Plan process would ultimately determine what tasks it was or was not safe for Mr Wilton to perform.

• [231] As noted above, consistent with the finding that Mr Wilton did not make the request on the basis of an articulated PPI concern is that it was agreed between Mr Wilton and

Mr Dargin that Mr Wilton would continue to perform those duties for several days following the formation of the agreement.

• [232] Accordingly, I find that the temporary arrangement between Mr Wilton and Mr Dargin was entered into orally on the basis that Mr Wilton expressed a desire to take a break from his training and assessing duties, that Mr Dargin agreed to the arrangement on the basis that there was no upcoming scheduled training and assessing that was required to be undertaken by Mr Wilton although Mr Wilton was required to complete the training and assessment that he was currently supervising before taking the break.

• [233] It is against the backdrop of this agreement that Mr Wilton contends that the management action was unreasonable and taken in an unreasonable way.

Was the request to Mr Wilton to perform training and assessing and the subsequent acts and/or omissions of management reasonable management action?

• [234] It is not in dispute, given the informal nature of the arrangement between Mr Wilton and Mr Dargin, that Ms Taylor was unaware of the arrangement between them when she asked Mr Wilton to perform the RCC training and assessment.

• [235] It is further not in dispute that Ms Taylor made the request on the basis of a genuine operational requirement.

• [236] Further, I find that Ms Taylor was entitled to make the request of Mr Wilton as he was able to perform the RCC training and assessing task on the basis that he was trained and held the relevant competency. Accordingly, the request made by Ms Taylor accorded with the power to make such a request pursuant to cl 4.1 of the EA.

• [237] Consequently, Ms Taylor's request that Mr Wilton perform the RCC training and assessing in those circumstances was reasonable.

• [238] As noted above, Mr Wilton refused the request on the basis of an agreement he says he had with Mr Snelling and Mr Dargin. As already found, there was no agreement between Mr Snelling and Mr Wilton.

• [239] It is accepted that there was an agreement between Mr Wilton and Mr Dargin on the terms referred to above.

• [240] It is apparent, however, that Mr Wilton had a different perception of the effect of the agreement. From his subsequent conduct, it appears he considered the agreement gave him a licence to refuse Ms Taylor's request despite the terms of cl 4.1 of the EA.

• [241] However, on the basis of the findings made above, the agreement between Mr Wilton and Mr Dargin was no more than a temporary rearrangement of the performance of certain duties at the request of an employee to his supervisor.

• [242] I accept Ms Taylor's evidence that when she asked Mr Wilton about the agreement on

26 May, he did not nominate any safety reasons for not agreeing to perform the work but refused because he said he had an agreement with Mr Snelling and Mr Dargin.

• [243] It is apparent that the operational requirements of D crew had altered since Mr Wilton and Mr Dargin entered into the agreement and that Ms Taylor advised Mr Wilton of the operational need for the training and assessing.

• [244] Given the alteration of the operational requirements, that is operationally a coal mine worker immediately required RCC training, it was reasonable for Ms Taylor to request that Mr Wilton perform a task for which he was deemed competent to perform regardless of whether the agreement was in place or not.

• [245] In any event, I find it unlikely that the informal agreement between Mr Dargin and

Mr Wilton with respect to what duties Mr Wilton performed prior to commencing his leave operated to limit the effect of cl 4.1 of the EA. Accordingly, I find that it was reasonable of Ms Taylor to consider that she was entitled to request Mr Wilton to perform a task which he was competent to perform and to expect that Mr Wilton perform it. That is the case even in circumstances where there was an agreement in place as the operational needs of the mine and the terms of cl 4.1 of the EA operated to override the agreement.

• [246] The consequence of this is that although Mr Wilton considered he was entitled to refuse to do the training and assessing on the basis of the agreement with Mr Dargin that belief was misguided, and consequently, tainted his actions and the view he took of the management action going forward.

• [247] As noted in consideration of the evidence above, following Ms Taylor's initial request that Mr Wilton perform the RCC training and assessing and his refusal, the following management action was taken:

(a) Ms Taylor made enquiries of Mr Snelling and Mr Dargin in relation to the existence of an agreement between either of them and Mr Wilton;

(b) Ms Taylor also contacted the supervisor of a pre-strip crew to ask if an operator swap could occur to "smooth over" Mr Wilton's request but that it was decided for operational reasons that could not be done;

(c) Ms Taylor and Mr Dargin at the first meeting on 26 May during which Ms Taylor issued a direction (which was repeated during the meeting) to Mr Wilton to perform the RCC training and assessing to which Mr Wilton refused;

(d) Ms Taylor and Mr Dargin at the second meeting on 26 May during which

Ms Taylor again issued a direction to Mr Wilton to perform the RCC training and assessing and when he refused to comply with the direction, they then issued him with a written notice that he was suspended for the remainder of the shift;

(e) Ms Taylor and Mr Snelling at the first meeting on 27 May during which Ms Taylor provided information about the process going forward with respect to BHP Coal's response to Mr Wilton's refusal to comply with the direction;

(f) Ms Taylor and Mr Snelling at the second meeting on 27 May during which the allegation was put to Mr Wilton and he was given an opportunity to respond to it;

(g) Ms Taylor and Mr Snelling at the third meeting on 27 May during which they advised Mr Wilton that a determination had been made, based on the Just Culture Tree, that he had engaged in "deviant behaviour" as that term is described in the Just Culture Tree process on the basis that he failed to comply with cl 4.1 of the EA and gave Mr Wilton an opportunity to respond;

(h) Ms Taylor and Mr Snelling at the fourth meeting on 27 May whereby they sought additional information from Mr Wilton regarding his response in the earlier meeting that suggested issues regarding his fitness for work;

(i) Ms Taylor and Mr Harper in the meeting on 28 May during which Mr Wilton was advised of the outcome of the substantiation of the allegation by the imposition of a "Step 2" disciplinary action, namely a formal written warning.

• [248] Ms Taylor's conduct referred to in sub-paragraphs (a)-(d) above concerns her request and subsequent direction to Mr Wilton to perform the RCC training and assessing. As noted above, there was a sound operational reason for Ms Taylor to make the request and further, because of Mr Wilton's competencies she was entitled to require him to perform the task.

• [249] At no stage during the course of the meetings did Mr Wilton raise a genuine PPI concern which would have disturbed the reasonableness of Ms Taylor's request and subsequent direction. Mr Wilton's repeated assertion that he needed a break from training without providing a sound basis for that request gave the appearance, at least, of an employee picking and choosing what tasks to do based on his personal preference.

• [250] In these circumstances, the actions of Ms Taylor in the meetings referred to in sub-paragraphs (a)-(d) above at [247] were reasonable.

• [251] Whilst not specifically stated, it appears that Mr Wilton is critical of Mr Dargin's omissions during the course of the meetings referred to in sub-paragraph (c)-(d) above. As can be seen from the evidence, Mr Dargin did not contribute in any meaningful way during the meetings, specifically, Mr Wilton contends that Mr Dargin did not articulate the existence of the agreement in support of Mr Wilton. As found above, it is consistent with the evidence that Mr Dargin and Mr Wilton had different perceptions with respect to the terms and effect of the agreement. The fact that Mr Dargin did not actively assert that the agreement operated when Ms Taylor made the request may be consistent with the fact that Mr Dargin viewed the agreement as no more than an informal "gentleman's agreement". In these circumstances, Mr Dargin's conduct at the 26 May meeting was not unreasonable management action. It was appropriate for Mr Dargin to observe the meeting and to not interfere in Ms Taylor's request and the subsequent direction to perform the training as the request and direction were both reasonable.

• [252] Mr Wilton is further critical of the management action going forward. That is the management action referred to in sub-paragraphs (e)-(i) which relate to the process commenced by BHP Coal as a consequence of Mr Wilton failing to comply with a direction.

• [253] The action at subparagraphs (e)-(i) above must be considered in the context of the fact that Ms Taylor had requested and then issued a direction to Mr Wilton to conduct the RCC training and assessing to which Mr Wilton refused to comply. The subsequent direction was issued on the basis that BHP Coal considered it was entitled to direct

Mr Wilton to perform a task which he was deemed competent and trained to perform. The reason, at that stage, put forward by Mr Wilton for the refusal was that he had an agreement with Mr Dargin and he "needed a break". Mr Wilton did not at any stage leading up to or at the time the direction was issued assert he was unfit for work. Rather to the contrary, by his attendance at the workplace he was asserting he was fit for work.

• [254] On this basis BHP Coal, through Ms Taylor and Mr Snelling, commenced a process whereby the allegation regarding his failure to comply with the direction was put to him for his response. It is not alleged by Mr Wilton that he was denied procedural fairness during this process. In any event, I am satisfied that at each separate meeting where the allegation was put to him; where he was advised that he was suspended from shift; where the finding was put to him; and where the disciplinary action to be imposed was put to him that on each occasion he was given an opportunity to be heard and his responses considered and that the process was the result of reasonable management action taken in a reasonable way.

• [255] However, the real focus of Mr Wilton's appeal is conveniently summarised in the following submissions:

1. The second aspect of unreasonable management action was the continuance of the disciplinary process after being made aware of the agreement on 27 May 2021. Notwithstanding that knowledge, Ms Taylor proceeded with the disciplinary action and requested a meeting with the Appellant on 28 May 2021 and again put forward the allegation that he had breached clause 4.1 of the enterprise agreement in failing to follow a direction which culminated in the Appellant being advised that he was in breach and that he would be issued with a step 2, being a written warning starting from that day and that a written letter would be sent from HR confirming that.

1. It is submitted that in circumstances where the Commission ought find that there was an agreement in place between the Appellant and Mr Dargan [sic] that he was not to undertake any further training and assessment, and

Ms Taylor being made aware of that by Mr Dargan [sic] and the Appellant, that to proceed with a disciplinary process and breaching the Appellant pursuant to the enterprise agreement in preference to the general obligation pursuant to section 39 of the CMSHA, was unreasonable.

1. It is submitted that this is not a mere blemish. The obligations under the CMSHA are paramount. The principal object of the CMSHA is to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations.

1. Despite that agreeance, the Appellant was disciplined for putting his and other coal mine workers' safety in conformance with his obligation under section 39 of the CMSHA by making arrangements to have a break from training and then refusing to undertake the training in defiance of that agreement.[64]

• [256] Mr Wilton's case is premised on the basis that the mere existence of the agreement between Mr Wilton and Mr Dargin operated to remove his obligation to comply with a request to perform a task in accordance with cl 4.1 of the EA and in circumstances where the agreement was no longer operationally appropriate to his employer's needs. Findings have been made above regarding the nature, terms and effect of the agreement about the informal and temporary rearranging of Mr Wilton's work duties between he and his supervisor, Mr Dargin. The agreement did not operate to limit the effect of cl 4.1 of the EA, and further, the operational requirements of Mr Wilton's employer had altered and were such that Mr Wilton was required to perform the task requested and subsequently directed of him.

• [257] In these circumstances, there was a sound basis, and further, it was reasonable for BHP Coal to consider that it was lawful and reasonable for it to issue the direction. It follows that upon Mr Wilton refusing to comply with the direction there was a sound basis, and further, it was reasonable for BHP Coal to commence the process whereby the allegation relating to the refusal to comply with the direction was put to Mr Wilton and culminated in a Step 2 formal written warning being issued.

• [258] As part of the process, management did have regard to Mr Wilton's responses. Notably, during the third meeting on 27 May, Mr Wilton raised for the first time with particularity that he needed a break because he felt unsafe. A further meeting, the fourth meeting on 27 May, was convened during which Ms Taylor sought further information from

Mr Wilton regarding why he considered he was not fit to perform the task. Specifically, Mr Wilton was asked whether BHP Coal could provide him with any assistance in terms of his health. Mr Wilton responded:

"No. Just time. Left alone not to do any training that's all I ask. Other than that I'm fine but I'm not getting the assistance I should be getting."[65]

• [259] From the information provided to BHP Coal, particularly when they gave Mr Wilton an opportunity to explain or present information on why he felt unsafe doing the task, he asserted, consistent with his position throughout the matter, that he needed a break and to not do the training. Mr Wilton's response to this further enquiry was taken into account and considered by his employer.

• [260] Accordingly, it is found that it was reasonable for the management action to be taken to commence and complete the disciplinary process following Mr Wilton's refusal to comply with a direction.

• [261] Accordingly, Mr Wilton has not discharged the onus that rests on him to establish that the management action was not reasonable nor taken in a reasonable way. It follows that the injury is excluded by operation of s 32(5) of the WCR Act.

• [262] It is evident that Mr Wilton perceives that he was treated unfairly because he was directed to do a task he had previously requested his supervisor to temporarily excuse him from performing.

• [263] At the time the agreement was made between Mr Dargin and Mr Wilton it was operationally convenient for Mr Dargin to agree to Mr Wilton's request that he not perform training and assessing duties.

• [264] However, the temporary arrangement entered into between Mr Dargin and Mr Wilton did not exist in a binding form so as to disturb the terms of the EA, including cl 4.1, or further to usurp the operational needs of the mine.

• [265] Mr Wilton's perception as to the effect of the agreement between he and Mr Dargin, specifically that it enabled him to refuse to comply with Ms Taylor's request and subsequent direction, tainted his view of the management action that was taken in the meetings.

• [266] The management action taken as a result of Mr Wilton's failure to comply with a direction, including during the meetings on 26, 27 and 28 May, was reasonable and taken in a reasonable way. In these circumstances, the nominated stressor for the injury is excluded by operation of s 32(5) of the WCR Act.

1. An application for costs, if any, should be made by the Workers' Compensation Regulator within 28 days.

[1] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11 ('WCR Act').

[3] Kevin Wilton, 'Appellant's statement of facts and contentions psychiatric and/or psychological injuries', Form 9A filed in Wilton v Workers' Compensation Regulator, WC/2022/115, 14 September 2022, 10 ('Appellant's statement of facts and contentions').

[4] T2-3 ll 8-13; Kevin Wilton, 'Medical Certificate from Dr D. Kumar (Sonic Health Plus) dated 29 May 2021', Exhibit 3 in Wilton v Workers' Compensation Regulator, WC/2022/115, 11 April 2023 ('Exhibit 3').

[5] [2019] QIRC 22.

[7] [2014] ICQ 9.

[9] [2016] QIRC 83 ('Kuenstner').

[10] Kuenstner (n 9) [38]-[42] (citations omitted).

[11] Kevin Wilton, 'Appellant's Outline of Submissions', Submission in Wilton v Workers' Compensation Regulator, WC/2022/115, 22 August 2023, [17] ('Appellant's Written Submissions filed 22 August 2023').

[12] Kevin Wilton, 'BMA Enterprise Agreement 2018', Exhibit 1 in Wilton v Workers' Compensation Regulator, WC/2022/115, 11 April 2023, cl 4 ('Exhibit 1').

[13] Coal Mining Safety and Health Act 1999 (Qld) s 6 ('CMSH Act').

[22] Coal Mining Safety and Health Regulation 2017 (Qld) s 42(1)(a).

[23] Ibid s 42(1)(b).

[24] Kevin Wilton, 'BMA - PDM Fitness for Work', Exhibit 2 in Wilton v Workers' Compensation Regulator, WC/2022/115, 11 April 2023 ('Exhibit 2').

[27] Kevin Wilton, 'Letter (Finding and Outcomes of the Investigation) dated 23 June 2021', Exhibit 4 in Wilton v Workers' Compensation Regulator, WC/2022/115, 11 April 2023 ('Exhibit 4').

[28] "Maria's" surname was not adduced in the evidence.