TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant, who worked in coal mine, was driving underground personnel vehicle (SMV) carrying miners on three phase journey – applicant dismissed for allegedly deliberately ramming another SMV in phase 1 and tailgating an SMV in phase 2 – when miners alighted in phase 3, applicant brought his SMV to sudden stop close to miner – respondent’s investigation was deficient – insufficient evidence to sustain allegations in ‘show cause’ and termination letters – respondent obtained information regarding incident in phase 3 three months after termination – information discovered after termination could be relied upon to substantiate existence of valid reason [Shepherd] – serious breach of safety policies and procedures, whether deliberate or careless, will invariably result in finding that valid reason exists for dismissal [Northey] – Commission satisfied evidence showed applicant had driven SMV carelessly, recklessly and causing imminent safety risk when bringing SMV to sudden, jolting stop close to miner – this conduct was ‘serious misconduct’ and breached company safety and transport rules – valid reason for dismissal established – applicant not notified of changed reason for termination and not given opportunity to respond to allegation relating to conduct in phase 3 – lack of procedural fairness would normally lead to decision that termination was harsh and unfair, but this case is distinguishable on basis that it involved fundamental breach of safety, where employee wilfully, recklessly and carelessly placed safety of another employee at risk [Crozier distinguished] – applicant had not suffered detriment due to lack of procedural fairness – Commission found termination was not harsh, unjust or unreasonable – application dismissed. Cheetham v Helensburgh Coal P/L
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