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? A: Yes. Q: Do you recognise it was a silly thing to do every other time you'd done it? A: No. Q: You think it's okay to do that, there's no risk to anybody? A: No. Q: Well, why was it silly on this occasion? A: Why was it silly? Q: On this occasion, yes? A: Probably because somebody seen it. Q: So, it was only silly because someone saw it, is that correct? A: Well, yes. Q: Had no one seen it, it wouldn't have made it any more sensible, is that correct? A: No. Q: Isn't that a cavalier attitude? A: I don't believe so. 43 In his evidence Mr MacKenzie acknowledged that he had completed a site induction program. Mr Mackenzie put that there are many occasions in which an excavator bucket would come within two to three feet of a truck, describing these at p42 of transcript in the following terms: Q: Now, in performance of your job, is there any other occasions that you would, say for example, take the bucket of an excavator closer than, for example, two foot to any plant? A: Often times, I loaded trucks, eight wheel tip trucks, the road trucks and they've got big high bodies in them to 8 foot deep probably, maybe not that deep, maybe only 7, but they're fairly deep and the bucket that we use on the excavator for loading those coal finds - there's a whole lot wider than this, as in scale - it is, from memory, it's 2.1 metres wide which is close to 8 foot, I believe and inside the tipping body of the truck is probably 8 foot 6 - there's not much margin for error there and to save giving truck drivers a hard time, knocking their backs about and throwing them around in the cab, you put your load into the back of the truck. Q: And so how much room do you have between the bucket and the plant? A: Either side of the bucket, you may have four inches to get inside that truck body without hitting the truck and - and knocking the truck driver around inside his cab. Q: Okay and have you ever been told that that's inappropriate? A: No. Q : If you were working on plant and equipment and the horn isn't working, how do you get someone's attention? A: Rattle the bucket at them. Q: And has that always been a practice? A: It has as long as I've been operating. 44 Mr Lewis deposed that the operating arrangements described by Mr MacKenzie involve equipment designed for the purpose and the tasks subject to risk assessment to ensure safety consideration. 45 Mr Lewis characterised the actions of Mr MacKenzie in this incident as not within established operational procedures and distinguished by the wilful act of Mr MacKenzie in deliberately placing the bucket in close proximity to cause injury or damage. The relevant evidence of Mr Lewis is found at p91 of transcript in the following terms: A: … … the crux of my logic was that he had put at risk an operator in full knowledge of what he was doing. It wasn't an accident, it wasn't a circumstance of events beyond his control. He, completely within his control and knowledge and - and action, did this act and gave me no reason why it occurred and no confidence in why it would not occur again. 46 Mr MacKenzie deposed that since the termination of his employment he has been unsuccessful in obtaining further full time employment, though has obtained some irregular casual employment as a plant operator at a rate of pay two dollars per hour less than when employment by the company. 47 The evidence of Mr Griggs is that he was employed by the company at the relevant time but has since left that employment. Mr Grigg's evidence confirms that he was the operator of the vehicle referred to in the evidence of Mr MacKenzie and Mr Pitzinger. 48 Mr Griggs confirmed that he was parked, waiting for Mr MacKenzie to finish his work, and with no other activity sat in the vehicle listening to the radio. Mr Griggs deposed that he may have dozed off and that the next thing he noticed was the bucket of the excavator making a sound to the front right side of his vehicle. Mr Griggs deposed that it was obvious to him that the excavator operator wanted him to move, which he quickly did, and Mr MacKenzie proceeded with his work. 49 Mr Griggs deposed that Mr Pitzinger then drove up to him and said, "Not a nice way to be woken up", to which he replied, "No". Mr Griggs' evidence is that Mr Pitzinger then said to him, "You should think about reporting it", to which he responded, "Yes mate", and Mr Pitzinger then drove off. 50 Mr Griggs evidence is that he did not think the incident warranted reporting and thought nothing else of the matter. Mr MacKenzie finished work and he escorted the excavator to the new work area and transported Mr MacKenzie to the crib hut for the lunch breach. 51 The evidence of Mr Griggs is that the bucket came no closer than two to three feet of the vehicle in which he was sitting and that he at no time felt at risk. 52 Mr Griggs deposed in his affidavit of evidence (ex 3) that there had been what he described as a "jovial" exchange with Mr D'Art, the safety officer, described in the following terms: D'Art: How is your elbow? Griggs: What do you mean? D'Art: Peter scratching your elbow with the bucket Griggs: No he was just adjusting my mirror D'Art: He is a mad fucker." 53 Mr Griggs deposed that he placed no significance on the conversation with Mr D'Art who asked him to have Mr Peterson contact him. 54 Mr Griggs deposed that Mr MacKenzie is a highly skilled excavator operator, capable of operating the excavator with a high degree of accuracy and that moving the bucket within two to three feet of another vehicle is not unsafe. 55 Mr Griggs deposed that other than the brief conversation he held with Mr D'Art, referred to above, no other staff member approached him or requested his version of the incident. 56 The evidence of Mr Mann is that he is employed by the company and has been president of the Liddell Lodge for the previous two years. 57 Mr Mann deposed that he had worked with Mr MacKenzie on several occasions and that Mr MacKenzie had a reputation as an excellent operator. 58 Mr Mann's evidence describes the request from Mr MacKenzie for his assistance, his investigation of the matter, and the meeting of 16 January 2001 with Messrs Fidock, Dunn, Pitzinger, Crockford, MacKenzie and himself. SUBMISSIONS 59 Mr Endacott submitted that in determination of this matter the primary task is to establish whether in all the circumstances the termination of Mr MacKenzie's employment was harsh, unreasonable and unjust as those words are used in s84(1) of the Industrial Relations Act 1996 ('the Act'). 60 Mr Endacott submitted I should consider the matter in terms of the long established principle of a fair go all round which brings, in his submission, consideration of substantive and procedural unfairness. 61 Mr Endacott submitted that on analysis of the facts, Mr MacKenzie should succeed in his application for reinstatement. Mr Endacott submitted that the verbal warnings the company asserted had been given to Mr MacKenzie in respect to prior conduct were not substantiated and should form no part of the consideration of this matter. 62 Mr Endacott put that Mr MacKenzie had never been informed that his employment was in jeopardy; and that Mr MacKenzie's two periods of employment, equating to five and half years, without formal reprimand, could not be regarded as a poor employment history. 63 Mr Endacott conceded that the allegation by the company that Mr MacKenzie had placed a fellow employee at serious risk of being injured or killed was arguably the most serious allegation an employer could make against an employee, which he put raised the onus of proof upon the employer. 64 Mr Endacott relied on a discussion of the standard of proof found in a decision of Mr Commissioner Murphy in Byatt and Mogy Tools Pty Ltd (IRC99/5640 1 December 2000, unreported). Mr Endacott submitted that established jurisprudence requires that the employer, so far as it is within its power, shows by its conduct that it conducted a full and extensive investigation into all relevant matters surrounding the alleged misconduct; and that the onus of proof in the event of such serious allegations rests with the employer. 65 Mr Endacott submitted that prior to dismissing the employee, the employer is required to have an honestly and genuinely held belief that the employee was guilty of serious misconduct; and take into account any mitigating circumstances, either associated with misconduct, or the employee's work record, which he put were elements absent in the instant matter. 66 Mr Endacott relied upon the failure to complete or produce an incident report in accordance with the company's procedures, and to conduct an investigation into the incident strictly in accordance with that protocol. 67 Mr Endacott submitted that the evidence brought in this matter does not support the conclusion that the company properly investigated the matter. He submitted that the investigation conducted by the company was further flawed by their failure to interview Mr Griggs, the central figure in the event relied upon. 68 Mr Endacott submitted that the paucity of investigation by the company prevented them from forming an honestly held belief necessary to ground a decision that employment be summarily terminated. 69 Mr Endacott further submitted that the facts of the matter as alleged by the company did not support termination of employment. Mr Endacott argued that the allegation of Messrs Pitzinger and Moore at the time of their observation did not allow a correct perception of the distance between the bucket and the vehicle driven by Mr Griggs; and that the evidence of Mr MacKenzie that the bucket was shaken two to three feet from Mr Griggs, rather than inches as suggested by Messrs Pitzinger and Moore, should be accepted. 70 Mr Endacott further contended that there was some discrepancy between the detail of the event provided by Messrs Pitzinger and Moore to Messrs Fidock and Mann and in these proceedings. Mr Endacott submitted that by comparison, the evidence of Messrs MacKenzie and Griggs is consistent and unshaken in cross examination. 71 Mr Endacott conceded that shaking the bucket of an excavator in the vicinity of a person to attract their attention should not be categorised as best practice, but in his submission did not warrant summary termination. Mr Endacott submitted that the termination was harsh on the grounds that the severity of the penalty was out of proportion to conduct. Mr Endacott sought reinstatement without loss of wages or continuity of employment, which he put was the appropriate and available remedy in all the circumstances of this matter. 72 Mr Rochfort submitted that consideration of the matter should commence from the evidence of the witnesses to the event, and that the conduct of Mr MacKenzie was paramount. 73 Mr Rochfort submitted that the missing incident report was of no relevance to the consideration of issues arising in this matter, being an internal procedure undertaken pursuant to the Occupational Health and Safety Act subsequent to an event. 74 Mr Rochfort submitted that Mr MacKenzie had not been denied procedural fairness, that the matter had been subject to appropriate investigation, and that Mr MacKenzie had been afforded every opportunity to respond to the allegations made. 75 Mr Rochfort submitted that the evidence of Mr Griggs of his exchange with Mr D'Art could not be explained away in these proceedings as a jovial exchange of no substance. He submitted that the response of Mr D'Art was evidence that Mr MacKenzie is regarded as a person who is reckless in his behaviour, contemptuous of company policy and the need to strictly observe procedures for safe operation of heavy equipment. 76 Mr Rochfort submitted that this conclusion is supported by Mr MacKenzie's concession that he had acted foolishly. Mr Rochfort put that the failure of the union to bring Mr D'Art to give evidence of Mr MacKenzie's safety record and alleged good reputation must lead to the conclusion that such evidence would not support Mr MacKenzie's case (see Jones v Dunkell (1959) 101 CLR 298). 77 Mr Rochfort submitted that no weight could be placed on the evidence of Mr Griggs that he had not felt threatened by the actions of Mr MacKenzie as Mr Griggs had been sleeping for most of the event and had conceded that he had been startled by the proximity of the excavator bucket, which Mr Rochfort put were the reactions of a person who had been given a real fright. 78 Mr Rochfort relied further on Mr Crockford's concession, when seeking suspension as an alternative to dismissal that Mr MacKenzie's conduct had been foolish, putting that Mr MacKenzie was far more flippant concerning his actions in Mr Rochfort's view considering that the foolish aspect of the incident was being caught on this occasion. 79 Mr Rochfort submitted that Mr MacKenzie had not indicated either regret for the incident nor an indication that it would not re-occur and fails to acknowledge that he has received a salutary lesson which he put gives rise to an unacceptable risk in the mind of management that Mr MacKenzie would re-offend if reinstated. 80 Mr Rochfort put that the submission of Mr Endacott that Mr MacKenzie be reinstated as if nothing had happened is an unavailable fiction. Mr Rochfort submitted that the direct evidence of Messrs Pitzinger and Moore should be accepted. Mr Rochfort submitted that in addressing this matter the role of the Commission is not to place itself in the position of the employer, but to determine whether the conduct of management was appropriate having regard to the facts of the matter to determine whether termination of employment was or was not harsh, unreasonable and unjust. 81 Mr Rochfort submitted that the termination of Mr MacKenzie's employment in the circumstances established in these proceedings did not warrant the intervention of the Commission to provide remedy pursuant to Part 6 of the Act. CONSIDERATION 82 The description of the central events provided by Messrs MacKenzie, Pitzinger and Moore varies in only one critical element; that being whether the excavator bucket was shaken within a metre of Mr Griggs or whether the excavator bucket was moved in a stealthy manner to within inches of Mr Griggs so as to attract his attention by proximity or contact. 83 The propositions advanced by Messrs Pitzinger and Moore are strenuously denied by Mr MacKenzie. The evidence of Mr Griggs is of little assistance in this regard as it is conceded he was asleep until he became aware of the bucket in close proximity to him. It is speculative whether Mr Griggs was awakened by the sound of the bucket or its proximity. 84 Messrs Pitzinger and Moore deposed they heard no sound from the bucket, which if rattled produces a loud clanging sound. 85 I tend towards the version of events put by Messrs Pitzinger and Moore however, it is not necessary to resolve that issue. 86 If I accept the evidence of Mr MacKenzie that he deliberately shook the bucket of the excavator within a metre of Mr Griggs, then I am compelled to the conclusion that management are entitled to regard such practice as a sufficient breach of safe operating procedure to warrant summary dismissal. 87 I accept the submission of Mr Rochfort that there is no failure in procedural fairness in this matter. Mr MacKenzie had the opportunity to meet the allegation, firstly with Mr Peterson and subsequently with Mr Lewis, and again in discussions organised by the lodge officials. 88 I refrain from determination in respect to assertions of Mr MacKenzie's cavalier attitude however, there appears to be no expression of contrition in any of the discussions with management or in these proceedings. 89 There is no deficiency in management's actions associated with the assertion from Mr Endacott that Mr MacKenzie had not been warned. The actions of Mr MacKenzie in this matter are of such fundamental substance that no warning is necessary: see Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others ((1995) 81 IR 46) wherein it was held at p68: "We do not wish to say that absence of warnings in appropriate circumstances might be taken into consideration in contemplating notions of harsh unjust and unreasonable. In industrial circumstances as in other avenues of life an employee or an employer must be taken to be aware of the natural and probable consequences of their actions. However, we reject as industrially inappropriate any notion that adult, responsible and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street". 90 The same may be said of fundamental obligation to safe working practice as put here by the Full Bench in respect to honesty. 91 The allegedly jovial exchange between Mr Griggs and Mr D'Art warrants comment as it leaves room for the view that there is lack of appropriate seriousness towards operational safety. If that be the case it is a matter of serious concern for management, but does not however diminish or mitigate the actions of Mr MacKenzie upon which termination of his employment is grounded. 92 I find in favour of the arguments advanced by Mr Rochfort. 93 There is no basis for intervention by the Commission. Accordingly, I decline the application for relief. 94 Matter No IRC 681 of 2001 is so concluded. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.