CFMEU o/b P MacKenzie v Hunter Valley Earthmoving Co Pty Ltd [2001] NSWIRComm 159

Industrial Relations Commission of New South Wales

CITATION : CFMEU o/b P MacKenzie v Hunter Valley Earthmoving Co Pty Ltd [2001] NSWIRComm 159 PARTIES : Construction Forestry Mining and Energy Union (NSW Branch) on behalf of Peter MacKenzie Hunter Valley Earthmoving Co Pty Ltd FILE NUMBER: IRC 681 of 2001 CORAM: Harrison DP Unfair dismissal - unsafe and negligent act - lack of acceptance of safety protocol CATCHWORDS : Application dismissed - held termination not harsh unreasonable or unjust LEGISLATION CITED : Industrial Relations Act 1996 Byatt v Mogy Tools Pty Ltd (Murphy C IRC99/5640 1/12/00 unreported) CASES CITED : Jones v Dunkell (1959) 101 CLR 298 Electricity Commission of New South Wales t/as Pacific Power v Nieass and others (1995) 81 IR 46 HEARING DATES: 05/16/2001; 06/07/2001 DATE OF JUDGMENT: 07/17/2001

APPLICANT Mr K Endacott Construction Forestry Mining and Energy Union (NSW Branch)

LEGAL REPRESENTATIVES: RESPONDENT Mr P Rochfort, Solicitor Rochfort and Associates

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 17 July 2001 Matter No IRC 681 of 2001

cONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) ON BEHALF OF PETER MACKENZIE AND HUNTER VALLEY EARTHMOVING COMPANY PTY LTD

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 The application in this matter was filed on 13 February 2001 and listed for preliminary hearing before Mr Commissioner Redman on 1 March 2001. These proceedings were vacated by agreement between the parties and the matter subsequently reallocated to the Commission as presently constituted. 2 Proceedings took place for the purpose of conciliation and directions on 8 March 2001. 3 Mr K Endacott of the Construction, Forestry, Mining and Energy Union (NSW Branch) ('the Union') appeared with and on behalf of Mr Peter MacKenzie, the applicant. Mr Carroll, Human Resources Manager employed by Thiess Pty Ltd appeared for Hunter Valley Earthmoving Company Pty ('the company'), the respondent employer, with Mr B Lewis and Mr P Pitzinger. 4 These proceedings established that the matter could not be resolved by conciliation and directions issued to bring the matter to arbitration on 16 May 2001 on the estimate of one day required for proceedings. In the event, this estimate proved to be ambitious, the matter requiring a further day of arbitration, completing on 7 June 2001. 5 On hearing, Mr Endacott continued his appearance for the union. Mr P Rochfort, Solicitor of Rochfort and Associates, appeared on behalf of the company with Ms L Evans and Mr B Lewis. 6 Mr Endacott brought evidence from Mr MacKenzie; Mr Gavin Griggs, an employee of the company at the relevant time; Mr Kenneth Mann, an employee of the company and CFMEU Liddell Lodge President. 7 Mr Rochfort brought evidence from Mr Brett Lewis, General Manager of the company; Mr Peter Pitzinger, General Superintendent for Thiess Pty Ltd; Mr Robert Moore, Engineering Manager of the Mining and Engineering Group of Thiess Pty Ltd; and Mr John Peterson, Civil Earthworks Supervisor for the company. 8 The company is a wholly owned subsidiary of Thiess Pty Ltd. THE EVIDENCE 9 Mr MacKenzie was employed by the company from July 1996 to the termination of that employment on 12 January 2001, in the capacity of Plant Operator pursuant to the Plant, &c, Operators on Construction (State) Award (277 IG 607) ('the award'). Mr MacKenzie was previously employed by the company from September 1994 to October 1995 when he was laid off due to a lack of work. 10 In the period of employment subject to these proceedings Mr MacKenzie was engaged in work at the Liddell Coal Mine in the Hunter Valley. His employment was terminated as a consequence of a report by Mr Pitzinger that Mr MacKenzie committed an act of gross negligence, putting at risk the safety, health and welfare of another employee, Mr Griggs. 11 The evidence of Mr Pitzinger supported by Mr Moore, is that they were together in a vehicle undertaking an inspection of works at Liddell Coal Mine when they observed the operator of a Hitachi EX 300 excavator, swing the excavator boom and bucket to within an inch or two from the driver's side window of a parked vehicle. The driver of the excavator was Mr MacKenzie, Mr Griggs was the driver of the vehicle. 12 The vehicle driven by Mr Griggs is described as a Ford Trader Truck which is a small tipper with twin cabin used for manhaul duties. This vehicle is variously described by witnesses as a utility or manhaul/tipper. 13 The excavator weighs approximately 30 tonne, having a boom of 6.4 metres, a stick extending from the boom approximately 3.2 metres, and a bucket attached to the end of the stick approximately 1.4 cubic metres in dimension. 14 The evidence of Mr Pitzinger in his affidavit (ex 6) is that he was some 10 metres from the event, which he describes at points 7, 8, 9 and 10 of ex 6 in the following terms: 7. To this point, the utility driver seemed unaware of what was happening and appeared to be dozing. He had his arm on the windowsill of the utility, almost brushing the side of the bucket. 8. The bucket was being moved stealthily and I did not observe the bucket to shake in any deliberate way. There was no noise from the equipment such as would have been the case had the bucket been rattled or shaken. My vehicle window was open and I was able to hear all that was going on. 9. Mr Moore said, "It looks as if he is trying to adjust the truck's mirror". 10. I saw the driver of the utility suddenly jerk, as if startled. The utility backed away from where the excavator was, about 5-10 metres. 15 Mr Pitzinger deposed that he spoke to the driver of the utility, the identity of whom he did not know at the time, saying: That was hardly good practice - I don't think that's the appropriate way to be woken up. Do you?'. 16 The driver replied, "No, I bloody don't." 17 Mr Pitzinger then informed the driver that he would be reporting the matter to his supervisor. Mr Pitzinger's evidence is that when he returned to the site office he immediately filled out an incident report and gave it to the Mine Manager, Mr Alan Fidock. The incident report is not tendered in evidence though sought by Mr Endacott. The company put that the report had gone missing and could not be found. 18 The evidence of Mr Moore supports that of Mr Pitzinger in respect to these matters. 19 It is Mr Pitzinger's evidence that the following day he spoke to Mr Fidock and Mr Peterson (Mr MacKenzie's direct supervisor), providing Mr Peterson with further details of his observation and putting to Mr Peterson: 'We can't have any operator working here that way. Someone will be killed. If he does not have a good explanation, I just want you to deal with it as the circumstances require.' 20 Mr Pitzinger deposed that he held no authority to direct Mr MacKenzie's employment be terminated however, he expected that necessary action be taken to ensure there was absolutely no chance of a recurrence. Mr Pitzinger deposed that he had a very real fear for the safety of the driver of the utility. 21 Mr Pitzinger's affidavit (ex 6) details a number of possible calamities that could arise from such practice. He deposes that his concern was heightened by an incident two months earlier when an occurrence with a far lighter piece of equipment led to a serious injury to an apprentice wherein the hydraulics of a HIAB crane were incorrectly used causing the load to drop, amputating the tips of two fingers of the apprentice. 22 The evidence of Mr Peterson is that on the report by Mr Pitzinger he ascertained that Mr MacKenzie was the driver of the excavator concerned. He interviewed Mr Griggs, the driver of the utility referred to in Mr Pitzinger's report. 23 Mr Peterson's evidence is that he attended upon Mr MacKenzie whilst he was working in the excavator, and put the allegation of unsafe practice to him with the comment, "That was a silly thing to do". 24 The evidence of Mr Peterson is that Mr MacKenzie did not seek to deny or explain any aspect of the version of events put to him, conceding, "Yes, it was a bit silly." 25 At the same time, Mr Peterson put a further allegation to Mr MacKenzie that he had acted unsafely in failing to give way to a company water truck on the site whilst driving a transit vehicle. Mr Peterson's evidence is that Mr MacKenzie denied this allegation and he took that matter no further. Mr Peterson's evidence is that he put that he then suspended Mr MacKenzie from employment, saying to him: "The matter with the excavator is something else entirely. We can't have you on site if you do that sort of thing. There is no other work for you to do, so we don't have a job for you." 26 Mr Peterson deposed that he arranged for Mr MacKenzie to put his position to Mr Lewis, stating that it was up to Mr Lewis to take the action of dismissal; Mr Peterson going no further than refusing to allow Mr MacKenzie to undertake further duties pending the meeting with Mr Lewis. 27 The evidence of Mr Lewis (ex 5) is that he has been in his current position for approximately five years and has approximately 16 years experience in the mining industry. 28 Mr Lewis deposed that Mr Peterson informed him that he had given Mr MacKenzie verbal advice of termination on the afternoon of 12 January 2001, and had informed Mr MacKenzie that the notice of termination was subject to any explanation or justification for his actions being put to Mr Lewis; and that if he could satisfy Mr Lewis with an explanation the termination would not go ahead, the final decision resting with Mr Lewis. 29 The evidence of Mr Lewis is that on the morning of Monday, 15 January 2001 Mr MacKenzie contacted him and arrangements were made for a meeting later that day. Mr Lewis deposed that he was subsequently contacted by Mr Steve Crockford, a district official of the union, who, Mr Lewis put, conceded that Mr MacKenzie had been foolish and sought agreement to suspension without pay for one month in lieu of dismissal. It is Mr Lewis' evidence that he informed Mr Crockford that he would consider the matter in light of what Mr MacKenzie put to him at the meeting arranged for later that day. 30 Mr Lewis deposed that when he met with Mr MacKenzie he requested him to give his version of the incident. It is Mr Lewis' evidence that Mr MacKenzie responded by saying: I wanted to get the attention of Gavin Griggs, so I waved the bucket at him. Other than dropping some material into the truck, I never really got that close to him. 31 Mr Lewis deposed that he asked Mr MacKenzie why he had not used the horn and whether the horn was working, putting that Mr MacKenzie did not respond to his question concerning why he did not use the horn to attract Mr Griggs' attention, though confirmed that the horn was working. 32 Mr Lewis deposed that he asked Mr MacKenzie whether he wished to put anything further to explain or justify his actions; and that Mr Mackenzie, other than indicating emotion at possibly losing his job, had nothing more to say. 33 Mr Lewis deposed that he then informed Mr MacKenzie that his employment was terminated due to serious misconduct in breach of safety procedures and company policy and lack of confidence by Mr Lewis that the incident would not occur again. This termination of employment was subsequently confirmed in writing. 34 Mr Lewis deposed that Mr MacKenzie had received a warning in July 1997 from senior management following allegations of harassment from a female employee who had asserted that Mr MacKenzie had chased her around a coal stockpile area with a small front end loader and that Mr MacKenzie had otherwise been warned for speeding on site in the previous 12 months. This warning related to Mr MacKenzie doing "wheelies" in the car park in his private vehicle. 35 The evidence of Mr MacKenzie is that at approximately 12 noon on 11 January 2001 he was operating the excavator, a function he regularly performs, when the manhaul/tipper operator, whose job it was to escort him when he walked the excavator to another work location, had arrived. The manhaul/tipper operator parked his vehicle to wait for Mr MacKenzie to finish the instant work prior to relocation. Mr MacKenzie deposed that as he was finishing off, he was working towards the manhaul/tipper, who did not move out of the way. Mr MacKenzie put that he concluded that the operator must have been day dreaming, so when he reached a position where he was unable to continue with his work because he would have been too close to the parked vehicle, he moved the bucket to the front driver's side and shook it to get Mr Griggs' attention. Mr MacKenzie deposed that when shaken the bucket makes a loud rattling sound. Mr McKenzie's evidence is that at no time was the operator put at risk. 36 It is Mr MacKenzie's evidence that he has been operating excavators for 17 years and would never put any plant or equipment at risk. Mr MacKenzie deposed that when he shook the bucket at the manhaul/tipper he came no closer than approximately one metre from the operator. 37 Mr MacKenzie's evidence is that after the manhaul/tipper had moved, he noticed a four wheel drive vehicle behind him which then drove over to the manhaul/tipper, spoke for a few seconds, and drove off. Mr MacKenzie's evidence is that there was no communication to him from the occupants of the four wheel drive vehicle. 38 Mr MacKenzie's evidence is consistent with that of Mr Peterson with the exception of the detail of who was to arrange the meeting with Mr Lewis. 39 Mr MacKenzie's evidence is that on the day of termination of his employment he sought assistance from Mr Mann and sought a meeting with Mr Lewis. Mr MacKenzie's evidence that allegations concerning a water cart were never raised by Mr Lewis in either meeting which took place at the company's Rutherford office. 40 Mr MacKenzie deposed that in the meeting with Mr Lewis he put his explanation of events and asked Mr Lewis to reconsider the termination of his employment, to which he put Mr Lewis replied that he regarded Mr MacKenzie's actions as gross misconduct warranting instant dismissal which was then confirmed, leading to a discussion in respect to termination entitlements. 41 Mr MacKenzie's evidence confirmed that a further meeting took place on Tuesday 26 January 2001, arranged by union lodge officials, which included Messrs Fidock, Pitzinger, Dunn (lodge secretary), Mann (lodge president) and Crockford. This meeting did not alter the termination of Mr MacKenzie's employment. 42 In cross examination Mr MacKenzie conceded that his actions had been foolish, primarily because he had been seen. This is found at p37 of transcript in the following terms: Q: You recognise it was a silly thing to do?