ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under Liddell Open Cut Enterprise Agreement 2013 – applicant worked as operator at Liddell open cut coal mine – was involved in a near miss incident when driving a 230 tonne haul truck within about 3.3m of another haul truck being driven by Ms Noone – respondent conducted extensive investigation into incident and suspended applicant without pay for two weeks and issued her with final written warning – applicant contended that disciplinary action taken by respondent was too harsh in circumstances – where the employee has engaged in conduct which constituted a ‘serious or major breach’ of the ‘required standard’ was, on its proper construction, limited, in that the employer must exercise its discretion honestly and conformably with the purposes of the Corrective and Disciplinary Policy and must not exercise its discretion capriciously, arbitrarily or unreasonably – neither the applicant nor Ms Noone reported the near miss incident – both concede they should have done so – witness stated to have a very good view of the incident and would have seen if applicant had put truck’s blinkers on – Commission accepted witnesses statement – found that applicant did not have right hand blinker on when turning off the haulage road in front of Ms Noone’s truck – applicant failed to comply with obligation under Transport Management Plan to drive vehicle in a ‘safe and sensible manner, having due regard for other vehicles’ – breached a ‘required standard’ within the meaning of the Agreement – satisfied that respondent exercised discretion to take a range of disciplinary action including suspending without pay – satisfied that respondent’s investigation was thorough, fair and reasonable – disciplinary action was not harsh, excessive or disproportionate in the circumstances – respondent acted within the limits of the discretionary power conferred on it. McKenzie v Liddell Colleries P/L
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