[2012] FWA 9027

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Zeb Dewson
Boom Logistics Ltd



Unfair dismissal - misconduct - allegations of assault and workplace bullying - erroneous findings of assault - other serious misconduct - unacceptable workplace culture - significant procedural deficiencies - denial of natural justice - harsh, unjust and unreasonable dismissal – further proceedings to deal with remedy of compensation.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Brisbane on 22 May 2012. The application was made by Zeb Dewson (the applicant) and the respondent employer is Boom Logistics Ltd (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 11 May 2012. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Brisbane on 10 and 11 September 2012.

[4] At the Hearing, Mr C Newman, a legal officer with the Construction, Forestry, Mining and Energy Union (CFMEU), appeared for the applicant. The applicant and three other witnesses were called to provide evidence in support of the claim. The employer was represented by Mr W Swain, who called a total of three witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant is a man of some 29 years of age and he had worked for the employer for about 6 and 1/2 years. The applicant was initially employed as a Dogman and he moved to the position of Crane Operator in 2007. The applicant’s employment was based in the Queensland town of Moranbah. At the time of his dismissal the applicant was Vice President of the local CFMEU Boom lodge.

[6] The employer is a national industrial services group that provides crane logistics and lifting solutions to Australian Industry. The employer has in excess of 1100 employees. In this instance the employer’s Moranbah operation predominantly provides services to the Coal Mining Industry.

[7] In about August 2011 the employer received a formal complaint from an employee engaged at Moranbah. The complainant made allegations of serious workplace harassment and associated matters including, inter alia, physical and verbal assault; destruction of personal property such as motor vehicle tyres being slashed; employees urinating in other employee’s boots; vilification and discrimination based on race, ethnicity, membership or otherwise of an industrial organisation, participation or otherwise in industrial activity; widespread drug use; concealment of serious workplace health and safety incidents; and nepotism.

[8] After an internal preliminary investigation the employer engaged an external consultant who investigated the allegations and completed a report in March 2012 which, in summary, concluded that “...a toxic work environment exists which poses an unacceptable risk of injury to employees at Moranbah and Dysart - this should not be allowed to continue.” 1 The report included, inter alia, investigation of a specific incident which involved the applicant head-butting another employee during a drunken Christmas party sponsored by the employer in 2010.

[9] The employer sought further advice from the external consultant regarding disciplinary action that might be taken against employees who had been identified in the report. In a supplementary report dated 2 April 2012, the external consultant stated:

[10] The above reference was made to the applicant, incorrectly spelt as “Dawson” rather than “Dewson”. Five other employees were also named along with the applicant as persons who should be considered for transfer to another work location. In addition, the consultant’s supplementary report included a sub-heading of “Termination of Employment” under which two other individual employees were named and some discussion was included about the terms of settlement agreements that might be negotiated with employees who might be dismissed if they refused to relocate.

[11] Following the consultant’s reports the employer’s General Manager of Queensland, Mr Wright, and the East Coast Human Resources Manager, Mr Mitchell, conducted tool box meetings at Moranbah and Dysart work depots. These meetings were held for the specific purpose of informing employees that the unacceptable workplace behaviours which had been identified in the consultant’s report had to cease forthwith as the employer was invoking a “zero tolerance” approach to workplace misbehaviour. The meetings were referred to as the “line in the sand” meetings which acknowledged that the employer had previously not implemented appropriate management practices to address the misbehaviours which gave rise to the toxic work environment identified by the consultant.

[12] In addition to the “line in the sand” toolbox meeting held on 19 April 2012 at Moranbah the employer’s senior managers met with both CFMEU officials and also with the individuals who had been named as respondents in the consultant’s reports. The employer also implemented a package of other measures aimed to redress the toxic work environment and ensure that all employees were no longer subjected to any form of bullying or harassment.

[13] Shortly after the conclusion of the toolbox meeting held on 19 April, Mr Mitchell, the East Coast Human Resources Manager, said that he was approached privately by an employee named Chris Zuniga. Mr Zuniga was one of the employees named as a respondent in the consultant’s report and for whom no specific adverse findings were made.

[14] According to Mr Mitchell, Mr Zuniga told him that “...the blokes were not taking it seriously and things wouldn’t change.” 3 Further, Mr Mitchell said that Mr Zuniga sought to raise a complaint about bullying and harassment including that he had been physically assaulted by the applicant who had thrown him into a “bucket”. Mr Mitchell said that he obtained the consent of Mr Zuniga to convey the report of the assault to the General Manager, Mr Wright but that Mr Zuniga did not want to make the matter known to local supervisors.

[15] Mr Mitchell told Mr Wright about the conversation that he had with Mr Zuniga and, according to Mr Mitchell, a short time later that morning Mr Zuniga telephoned him and arranged to meet with him in the depot toilets for a further discussion about the bullying and harassment matters including the assault he allegedly suffered from the applicant. Mr Mitchell said that he did not obtain from Mr Zuniga any details of the assault alleged by Mr Zuniga such as where and when the event occurred, and at this time, 19 April, the extent of the description of the assault was confined to the applicant throwing Mr Zuniga into a “bucket”.

[16] Despite the extensive and detailed evidence given by Mr Mitchell about his discussions with Mr Zuniga on 19 April, including their arranged meeting in the depot toilets, Mr Zuniga provided no evidence of these discussions. Instead Mr Zuniga said that he first raised formal complaint about the applicant on 26 April when he spoke with the Central Queensland Regional Manager, Mr Joe Kosecki.

[17] On 26 April 2012, Mr Zuniga formally raised complaints about workplace bullying and harassment with Mr Kosecki. Relevantly Mr Zuniga specifically complained about two events when he was allegedly assaulted by the applicant. The first event was said to have occurred on 4 April 2012 at a site called Arden’s Yard, and the second event allegedly occurred on 23 April 2012, at the Moranbah Depot.

[18] Between 26 April and about 4 May 2012, Mr Kosecki had various conversations with Mr Zuniga about the two alleged assault events. As a result of these conversations Mr Kosecki was “...satisfied that it was likely that the incidents had occurred as described by [Mr Zuniga]” and that “...I was also satisfied that there were no independent witnesses to the events.” 4

[19] On Friday 11 May, the applicant was told by a fellow local CFMEU delegate, Mr Ross Sammut, that he had been asked to bring the applicant to a meeting with Mr Pope, the Moranbah Manager. The purpose of the meeting had not been conveyed to Mr Sammut and he and the applicant speculated that the meeting might be connected with matters surrounding the dismissals of two other employees which had occurred on the preceding Friday.

[20] The applicant and Mr Sammut attended the meeting with Mr Pope and they were joined by Mr Kosecki. Mr Kosecki advised the applicant that the meeting was held to discuss allegations of serious workplace misbehaviour. Initially the applicant did not understand that the allegations were made against him. Once the applicant understood that the meeting involved serious allegations against him he requested that the CFMEU official, Mr Steve Pierce, be present. Mr Kosecki rejected this request and indicated that Mr Sammut would be the applicant’s support person and he continued the meeting.

[21] Mr Kosecki put the allegations of misconduct to the applicant. Specifically that the applicant was alleged to have assaulted Mr Zuniga on 4 April 2012 at Arden’s Yard. This alleged assault was said to have involved the applicant throwing Mr Zuniga into the tray of a dump truck. The second alleged assault was said to have occurred on 23 April 2012, when at the Moranbah workshop, the applicant grabbed the arms of Mr Zuniga from behind and forced him to the ground.

[22] The applicant and Mr Sammut contested both the substance of the allegations and the process by which the employer was advancing the disciplinary consideration of the matters. Mr Kosecki invited the applicant to respond to the allegations. Although the evidence regarding this particular part of the discussion is at some divergence there seemed to be a considerable level of angst attached to the exchanges between, in particular, the applicant and Mr Kosecki. Despite the difficulties with the evidence on this point of detail it was clear that the applicant denied the first event of 4 April as was alleged and to some extent he admitted that there had been some horseplay between himself and Mr Zuniga. However it has subsequently emerged that the applicant was referring to a different event and not the alleged assault of Mr Zuniga on 23 April.

[23] The applicant and Mr Sammut were asked to leave the meeting for a period and then once they returned to the meeting Mr Kosecki advised the applicant that he was satisfied that the assaults as alleged by Mr Zuniga had occurred and that these assaults together with the head-butting incident at the 2010 Christmas party established a pattern of unacceptable misconduct which warranted the applicant’s dismissal.

[24] The applicant was subsequently provided with a letter of dismissal dated 11th May 2012, which confirmed that the employer had determined that the applicant was guilty of serious misconduct in the form of the assaults upon “another worker” (Mr Zuniga) on 4 April 2012 at Arden’s Yard, and on 23 April 2012, at the Moranbah Yard.

[25] The applicant was paid all accumulated entitlements together with 4 weeks wages in lieu of notice. Shortly after his dismissal the applicant obtained alternative employment albeit of a casual nature.

The Case for the Applicant

[26] Mr Newman from the CFMEU appeared for the applicant and made verbal submissions in addition to documentary material that had been filed earlier. Mr Newman submitted that the determination of the matter focused upon the two incidents of alleged assault which the employer had found to have occurred. Mr Newman said that these two incidents which allegedly occurred on 4 and 23 April represented the basis upon which the employer dismissed the applicant and the earlier incident involving the applicant head-butting another employee at the 2010 Christmas party, should be considered as something that was not really relied upon as part of the basis for dismissal.

[27] Mr Newman said that the circumstances surrounding the 2010 Christmas party head-butting incident were not really relevant to the determination of this matter. Mr Newman submitted that the evidence established that the applicant did not deny the incident but had subsequently reconciled with the other employee who did not seek to press any further complaint against the applicant in respect of the incident.

[28] Mr Newman made further submissions about the detailed evidence concerning firstly the alleged assault of 4 April at Arden's Yard, and secondly the paucity of evidence regarding the second alleged assault of 23 April. In respect to the alleged assault of 4 April, Mr Newman submitted that the evidence clearly indicated that the incident did not occur.

[29] Mr Newman submitted that there was evidence which provided strong basis for the rejection of the version of the 4 April event as alleged by Mr Zuniga. Mr Newman referred to evidence of the rainfall statistics for the Moranbah airport provided by the Bureau of Meteorology 5. Mr Newman also referred to evidence of the dimensions of the dump truck tray into which Mr Zuniga was allegedly thrown. Mr Newman submitted that the back of the tray was somewhere between 1.5 to 2 meters above the ground and it was difficult to imagine that if the applicant could throw Mr Zuniga that high such an action would not have caused significant injury to Mr Zuniga.

[30] Mr Newman further submitted that an inference as established by the principle recognised in the case of Jones v Dunkel 6 should be drawn from the absence of any evidence from the fourth person, Mr Jerome Navaro, who was present at Arden's Yard on 4 April at the time of the alleged assault. Mr Newman said that the evidence of the applicant and Mr Anderson was consistent and directly contradictory to the evidence of Mr Zuniga and the employer could have provided evidence from Mr Navaro. According to the submissions made by Mr Newman, the absence of this evidence should attach significant weight in support of the evidence of the applicant and Mr Anderson.

[31] Mr Newman made further submissions about the alleged assault of Mr Zuniga by the applicant on 23 April at the Moranbah Yard. Mr Newman said that there were no witnesses to this alleged assault other than the applicant and Mr Zuniga. Mr Newman submitted that Mr Zuniga should not be believed as his evidence was generally unreliable. In particular Mr Newman referred to the written statement which Mr Zuniga had made to the consultant and which was recorded in the report. Mr Newman mentioned that Mr Zuniga had told the consultant that he had experienced only good-natured ribbing and denied that any bullying, harassment or victimisation had occurred.

[32] Mr Newman made further submissions which were highly critical of the employer's procedure involving the investigation and ultimate determination of the allegations of assault that had been made by Mr Zuniga. Mr Newman submitted that Mr Kosecki had an obligation to properly investigate the allegations and he failed to meet that obligation. Mr Newman criticised Mr Kosecki for his failure to interview any of the other witnesses to the alleged assault because he had a belief that they would not be independent or truthful. Instead Mr Kosecki relied solely upon the version of the alleged assaults given by Mr Zuniga.

[33] Mr Newman submitted that Mr Kosecki had not conducted a proper investigation into the allegations against the applicant and he moved quickly to terminate the applicant's employment because he was one of the persons mentioned in the consultant's report to be considered for relocation. Mr Newman suggested that Mr Kosecki had skipped over several steps and moved straight to termination either because of the mention of the applicant in the consultant’s report or alternatively because he was just simply incompetent.

[34] Mr Newman summarised his submissions by concluding that the dismissal of the applicant was unfair because there was no valid reason for the termination and that deficient process surrounded the employer's actions which led to unsubstantiated findings against the applicant. Mr Newman urged that the applicant be reinstated to his former position with no loss of continuity and compensation.

The Case for the Employer

[35] The employer was represented by Mr Swain who submitted that the dismissal of the applicant was not unfair. Mr Swain made submissions which elaborated upon documentary material that had been filed on behalf of the employer.

[36] Mr Swain submitted that there was no merit to the application. Mr Swain urged that the matter be considered in all of the circumstances involving what he described as a “chequered history” of matters relating to workplace bullying, harassment and victimisation at the Moranbah Yard. Mr Swain referred to the consultant’s reports and the findings that established that a toxic work environment existed at Moranbah. Mr Swain said that the employer had decided that it must address the problems that had been identified in the consultant’s reports. In this context Mr Swain said that the employer was obliged to deal with these serious allegations raised by Mr Zuniga.

[37] Mr Swain made submissions which supported findings that the alleged assaults of 4 and 23 April did occur. In respect to the 4 April incident at Arden's Yard, Mr Swain said that whether or not there was water in the tray of the dump truck was not a major issue and it was more important to determine whether or not the actual aggressive act occurred. In this respect Mr Swain submitted that Mr Zuniga had no reason to invent the allegation of the assault at Arden's Yard. Further, Mr Swain said that such an aggressive act would be consistent with the applicant's previous conduct and he referred to the 2010 Christmas party head-butting incident and evidence of an aggressive outburst by the applicant during enterprise agreement negotiations.

[38] In respect to the second assault alleged to have occurred on 23 April, Mr Swain similarly submitted that there was no reason for Mr Zuniga to make up such an allegation. Mr Swain submitted that Mr Zuniga’s version of the incident of 23 April was more acceptable and more likely to have taken place.

[39] Mr Swain submitted that the employer had taken appropriate action in terminating the employment of the applicant because of his offensive, intimidating and violent behaviour in clear breach of the enterprise agreement that the applicant was involved in establishing. Mr Swain referred to section 387 of the Act and submitted that there was a valid reason for the dismissal of the applicant involving his misconduct in the form of assaults against Mr Zuniga.

[40] Mr Swain submitted that the witness statements filed on behalf of the applicant were not credible in respect to the assault on 4 April at Arden's Yard. Mr Swain submitted that Mr Kosecki gave a reasonable explanation as to why he did not consider any of the other witnesses to be independent and that he knew that he would be told that nothing had happened on 4 April at Arden’s Yard. Mr Swain also submitted that it was quite a feasible proposition for someone of the size of Mr Zuniga to have been thrown into the back of a dump truck tray by a person of the size and strength of the applicant.

[41] Mr Swain further submitted that the applicant had been clearly notified of the reason for his dismissal and he was provided with a written letter of termination. Further, Mr Swain submitted that the applicant had been given an opportunity to respond to the reasons relating to his misconduct and which underpinned the decision to dismiss. In answer to criticism that the applicant had been denied the support person of his choice (the union official Mr Pierce), Mr Swain submitted that employees did not have the right to determine the conditions under which they meet with the employer.

[42] Mr Swain submitted that there was no basis to find that the applicant had been unfairly dismissed. Mr Swain said that the claim for remedy was without merit and in all circumstances of the matter and on the basis of a fair go all round, the applicant's assertion of unfairness should be rejected particularly having regard to the 4 weeks payment made to the applicant in lieu of notice. Mr Swain said that in all circumstances the employer's actions were reasonable and were open to it and therefore the application should be dismissed.


[43] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

[44] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

387 (a) - Valid reason for the dismissal related to capacity or conduct

[45] In this case there were two particular incidents of misconduct that the employer found to have occurred and which represented the primary reason for dismissal. There were two other incidents which represented secondary or contextual support for the dismissal. These secondary incidents which involved the applicant head-butting another employee at the 2010 Christmas party and his outburst during enterprise agreement negotiations, were not matters of any factual significant contest.

[46] Consequently the determination of this unfair dismissal claim has focused upon the factual conflict surrounding the two incidents which the employer established as physical assaults perpetrated by the applicant upon Mr Zuniga. The employer found that two assault events occurred firstly on 4 April 2012 at the Arden’s Yard site, and secondly on 23 April at the Moranbah Yard.

[47] The analysis of these two events has logically commenced with that event which was said to have occurred first in time, the Arden’s Yard incident of 4 April. The resolution of the factual conflict regarding the second event of 23 April would logically be largely dependent upon aspects such as credibility which operated as any basis upon which the earlier event was determined. The determination of the second event which was a matter of directly opposing factual assertions for which there were no other witnesses, would in all likelihood, follow the determination made about the Arden's Yard incident. Consequently the determination of the factual conflict surrounding the Arden's Yard incident of 4 April has become the critical issue for determination.

Arden’s Yard - 4 April 2012

[48] Mr Zuniga who was the alleged victim of the assault recounted what he said occurred:

[49] The evidence has established that there were four individuals present at the time that the alleged assault occurred at Arden's Yard, namely, the applicant, Mr Zuniga, Mr Dion Anderson, and Mr Jerome Nevaro. The applicant flatly denied the assault allegations made by Mr Zuniga and no evidence was provided from Mr Nevaro. Mr Anderson gave evidence which supported the applicant's evidence. Mr Anderson said that he did not witness the applicant assault Mr Zuniga on 4 April at Arden’s Yard.

[50] The employer has asserted that the evidence of Mr Zuniga should be preferred over that of the applicant and Mr Anderson. The employer's case relied upon an alleged code of silence and concealment that was found to have existed amongst a significant number of the Moranbah employees. Consequently the employer has asserted that the applicant and Mr Anderson were being deliberately untruthful and concealing the assault upon Mr Zuniga that it found to have occurred at Arden's Yard on 4 April.

[51] There was ample material contained in the consultant’s report to support the prospect that the applicant and Mr Anderson may have been involved in a deliberate concealment of the assault as alleged by Mr Zuniga. However, a careful analysis of particular aspects of the alleged assault at Arden’s Yard on 4 April has impugned the version of that event as deposed by Mr Zuniga.

Water in the Tray

[52] There was a significant evidentiary contest as to whether there was water in the dump truck tray that Mr Zuniga was allegedly thrown into. According to Mr Zuniga the tray was a little less than half full with rainwater. The applicant and Mr Anderson were adamant that there was no water in the tray. The rainfall statistics for Moranbah airport confirmed that there had been no rain in the area for 10 days before 4 April. To their credit both the applicant and Mr Anderson conceded that following a period of heavy rain, water could remain in the dump truck trays for some time.

[53] The evidence established that in instances where a tray had a significant amount of water in it, two 50 tonne cranes would usually be rigged at the front of the tray and it would be lifted on an angle so that the water was tipped out of one of the rear corners of the tray. This process which involved the lifting of the front of the tray on an angle so that the water was tipped out the rear, would logically occur before the two cranes would then be rigged up on each side of the tray so that it could be lifted in a horizontal plane to allow the dump truck to reverse under it to enable the tray to be fitted.

[54] Consequently, if Mr Zuniga was thrown into a tray that was a little less than half full with water this would have to occur at a point in time before the cranes had been rigged at the front of the tray to lift the front and tip the water out. Strangely the evidence provided by Mr Zuniga made repeated specific reference to the cranes being rigged on each side of the tray in preparation for the fitting of the tray at the time that he was allegedly thrown into it by the applicant.

[55] Therefore the evidence provided by Mr Zuniga about the assault event on 4 April contains a fundamental sequence error. This error can be identified by an examination of a contradiction which emerges between paragraphs 5 and 41 of the statement of Mr Zuniga.

[56] At paragraph 41 of his statement Mr Zuniga says:

[57] If what Mr Zuniga says at paragraph 41 did occur then the tipping out of the water from the tray must have occurred before what he says occurred at paragraph 5 where he stated: “We were setting up cranes on both sides of the dump truck tray getting ready to fit it.” This would therefore mean that he would have been thrown into the tray at a point in time after the water had been tipped out.

[58] During the Hearing Mr Zuniga provided the following evidence in connection with the sequence of events involving the tipping out of the water from the tray:

[59] An examination of the totality of the evidence given regarding the 4 April incident reveals that the sequence error in Mr Zuniga’s version is not an insignificant point of detail. Mr Zuniga was questioned at some length about his evidence regarding waiting for the Job Safety Analysis (JSA) on 4 April at Arden’s Yard. Initially he was adamant that the alleged assault occurred at a point in time when he and the others, were waiting for approval of the JSA. The difficulty with this evidence emerged when, for his version to “hold water” so to speak, he needed to have the tray a little less than half full of water at that time. However he had provided evidence that they had tipped the water out earlier. Mr Zuniga was questioned about the sequence of events during the Hearing and he provided entirely unconvincing testimony.

[60] There were a number of other notable incongruities arising from the evidence provided by Mr Zuniga.

First Report to Mitchell - 19 April

[61] As mentioned earlier, the employer’s East Coast Human Resources Manager, Mr Mitchell gave detailed and believable evidence about the contacts that Mr Zuniga made with him shortly after the toolbox meeting on 19 April. These events on 19 April represented the first occasion that Mr Zuniga had reported the alleged assault subsequently identified as the Arden's Yard incident of 4 April. The reports made by Mr Zuniga to Mr Mitchell on 19 April were initiated by Mr Zuniga and included, inter alia, the two men meeting secretly in the toilets at the Moranbah Yard.

[62] Strangely however Mr Zuniga provided no evidence about the reports that he made to Mr Mitchell on 19 April. Even when specifically asked 8 about whether he had made any informal complaint prior to speaking with Mr Kosecki on 26 April, Mr Zuniga did not make any mention of what would have been a fairly significant event involving his meetings with Mr Mitchell on 19 April.

Farting in Face - 23 April

[63] As part of the allegation involving the applicant assaulting Mr Zuniga on 23 April, Mr Zuniga alleged that prior to that assault another employee, Mr Bell, approached him while he was seated and then turned around and pulled his bum cheeks apart and farted in his face. Mr Zuniga said that when he formally raised his complaints with Mr Kosecki on 26 April he told Mr Kosecki about the assault at Arden's Yard on 4 April and the further assault on 23 April including mention of Mr Bell farting in his face earlier on that day.

[64] An incident as distasteful as someone farting in another's face would logically be a noteworthy and somewhat infamous matter. Strangely however the witness statement of Mr Kosecki 9 made no mention of the farting in the face incident. Although it was the alleged misconduct of an employee other than the applicant it was an event connected in time with the alleged second assault upon Mr Zuniga on 23 April. Importantly, despite repeated questioning about whether Mr Zuniga had specifically reported other matters it was only when directly asked about Mr Bell farting in Mr Zuniga’s face that Mr Kosecki said that he was “pretty sure it was in there, I’m not 100 per cent sure but I’m pretty sure it is.”10

[65] The inconsistencies and incongruities which can be identified from the evidence provided by Mr Zuniga, including the important sequence error with the Arden’s Yard incident, when considered in combination with the presentation of the various individuals as witnesses in the proceedings, has, upon careful consideration, provided a compelling basis for rejection of the evidence of Mr Zuniga as it is unreliable.

[66] Consequently I am unable to support the employer’s finding made in respect to the assault by the applicant upon Mr Zuniga on 4 April at Arden’s Yard. Further, as a corollary of my finding that the evidence provided by Mr Zuniga was unreliable, I am also unable to confirm that the second alleged assault on 23 April has any basis in fact.

[67] In arriving at these conclusions which overturn the employer’s factual findings of misconduct against the applicant, I have been cognisant that it is well established that an employer is not required to meet the criminal standard of proof in order to establish any misconduct upon which it relies as the reason for dismissal. It is equally recognised that the more serious the nature of the alleged misconduct, there is created, a corresponding more onerous standard of proof that should be met. The evidence in this case has established that the employer failed to satisfy even a basic level of proof upon which to find that the applicant committed the particular acts of physical assault as alleged by Mr Zuniga.

[68] The erroneous findings made by the employer in respect to the two primary reasons for dismissal is unsurprising when the procedure that was adopted by Mr Kosecki is examined.

387 (b) - Notification of reason for dismissal

[69] The employer provided verbal and written notification of the reason for the applicant's dismissal. Unfortunately for the employer, the two primary acts of misconduct as articulated in the letter of dismissal as the basis for dismissal have been unable to be sustained as facts.

[70] In addition it is relevant to consider the circumstances which preceded the notification of the dismissal involving the employer’s severely flawed process of investigation and consideration of the allegations made against the applicant.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[71] The employer summoned the applicant to attend a meeting on 11 May which had the appearance of providing an opportunity for the applicant to respond to the allegations of serious misconduct surrounding the alleged assaults. Unfortunately, the evidence provided by Mr Kosecki revealed that there was little practical purpose served by providing such an opportunity because Mr Kosecki had developed a belief that the assaults as alleged by Mr Zuniga had occurred. Somewhat amazingly, Mr Kosecki had obtained this belief solely upon a series of discussions that he conducted with Mr Zuniga. Mr Kosecki deliberately refrained from speaking with any of the other potential witnesses to the assaults as he believed that all the other individuals would not be truthful.  11

[72] The approach that Mr Kosecki adopted in respect to the allegations of assault made by Mr Zuniga represented something of a case study in how not to conduct an investigation and determination of disciplinary matters leading to termination of employment. As mentioned above, the extent of Mr Kosecki’s investigation was a series of discussions with Mr Zuniga. These discussions did not include any fundamental testing of the details of the alleged assaults. In particular, no scrutiny was applied to the sequence of events as asserted by Mr Zuniga. Mr Kosecki did not even ask Mr Zuniga if he got wet when he was thrown into the tray that had water in it.

[73] Even if Mr Kosecki held the view that other potential witnesses were likely to be untruthful he was obliged to at least appear to be undertaking a proper, comprehensive investigation into the serious allegations that had been made by Mr Zuniga. The predisposition to accept Mr Zuniga’s allegations as factually correct provided a very convenient mechanism to make the personnel changes that were mentioned in the consultant’s supplementary report. Unfortunately for the employer, the toxic work environment identified in the consultant’s report cannot be remedied by adoption of seriously flawed disciplinary processes. In simple terms, all employees, even those who are considered to be bad characters, are entitled to natural justice.

[74] In addition to the absence of any proper investigation there was then an unacceptable delay before the meeting with the applicant was held on 11 May. Where matters arise which involve assertions of serious workplace misconduct which might, if proven, justify dismissal, it is important that an employer treat the assertions with a level of seriousness that corresponds with the serious nature of the purported misconduct. Often it will be appropriate to act quickly, suspend an employee from duty, and advise them of the nature of the allegation under investigation. In this case over two weeks elapsed between the complaint being made to Mr Kosecki and the meeting of 11 May which was held to ostensibly provide the applicant with an opportunity to respond. During this two week period there was no investigation being undertaken and the applicant was continuing to work as usual.

[75] The applicant was not aware of the allegations made against him until shortly after the meeting of 11 May commenced. Unless some proper reason exists which might prevent advanced notification, the requirement to respond to allegations immediately upon first knowledge will represent nothing more than an ambush. Apart from the natural justice concerns, the requirement to answer serious allegations when they are first conveyed will often, understandably, inject a level of animosity into the disciplinary process which does not assist in the discovery of the truth.

[76] The applicant was clearly agitated during the meeting held on 11 May. He had been confronted with serious allegations made against him in circumstances where the employer had recently dismissed other employees in the aftermath of the “line in the sand” toolbox meetings and the other actions which flowed from the consultant’s reports. In these circumstances the applicant sought to respond to the allegation of assault on 23 April by mistakenly conflating that allegation with another earlier event which involved him and Mr Zuniga engaging in some horseplay. The applicant referred to this other event and said words to the effect, “We’re men, that’s what we do in Moranbah.”  12

[77] Despite the elevated anxiety that had developed during the meeting of 11 May, Mr Kosecki considered that the statement of the applicant involving words to the effect, “We’re men, that’s what we do in Moranbah” represented an admission by the applicant to both the assault allegation of 4 April and the allegation of further assault on 23 April. Mr Kosecki decided that the applicant’s admission represented confirmation of his previously determined satisfaction that the allegations of Mr Zuniga were established. He told the applicant that he was satisfied that the applicant had committed the misconduct as alleged and he was dismissed and a letter of dismissal would be prepared and provided to the applicant.

[78] Consequently, there was no proper opportunity for the applicant to carefully consider and respond to the allegations made against him. It is purely hypothetical as to whether or not, if given a proper opportunity, the applicant may have been able to disavow Mr Kosecki of his predetermined acceptance of the allegations made by Mr Zuniga.

387 (d) - Unreasonable refusal to allow a support person to assist

[79] As if to ensure the complete adoption of erroneous procedure, Mr Kosecki refused permission for the applicant to have a support person of his choosing. The applicant wanted to make arrangements to have the Union official, Mr Pierce present. This request did represent an unreasonable or impractical proposition. However it was refused by Mr Kosecki who instead nominated the applicant’s support person to be Mr Sammut.

387 (e) - Warning about unsatisfactory performance

[80] This factor has no relevance in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[81] The size of the employer’s operation should have provided for a much higher standard of procedure to have been followed such that there would be no manifestly biased approach which adopted various conclusions without any investigation and before hearing from the accused individual.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[82] Although it appeared that the employer did have dedicated employee relations management specialists there was no evidence of the involvement of any such specialist staff during the process that led directly to the dismissal of the applicant.

387 (h) - Other relevant matters

[83] There were some other matters which have required consideration and which must be balanced against the employer’s erroneous factual findings and severely flawed procedure.

[84] Firstly, the applicant head-butted another employee at the 2010 Christmas party. In my view this is an indefensible act. However the employer had provided the alcohol which contributed to the incident and more importantly, it took no disciplinary action against the applicant at the time of the discovery of the misconduct. Following the consultant’s reports it appeared that the employer was going to issue the applicant with a final warning in connection with the head-butting incident. The reliance that could be placed upon such a stale warning is questionable.

[85] The head-butting incident was not of itself considered by the employer to represent misconduct that justified dismissal. If the matter had been properly considered and dealt with by the employer at the time it may have provided sound basis for dismissal. Ultimately, and largely because of the failure of the employer to deal with the matter at the time, the head-butting incident cannot now become a justification for the applicant’s dismissal. However it represents a matter of undeniable misconduct which has been relevant to my consideration in respect to appropriate remedy.

[86] Secondly, the applicant admitted to making an inappropriate outburst during the enterprise agreement negotiations. The totality of the evidence about this incident leads me to conclude that it was a matter elevated beyond all realistic proportion. I have disregarded it as a relevant consideration in respect of the issues for determination in this case.

[87] Thirdly, and perhaps most significantly, the dismissal of the applicant has required consideration of the historical background of a fractious work environment where, regrettably, on occasions legitimate Union activity appeared to be substituted with crude mob rule. The evidence presented in the consultant’s report established that at times, in the past, the employer’s Moranbah workplace resembled a school playground where the Teachers were wilfully blind to all manner of misbehaviour ranging from horseplay through to wanton gangster thuggery.

[88] Once the employer was formally apprised of the parlous state of its Moranbah workplace it was compelled to take steps to rectify the situation. The difficulties that the employer faced with its remedial tasks cannot be overstated. However no matter how attractive it may seem to resolve such problems by swift, decisive personnel “movement,” the rectification of the identified problem will not be achieved unless the actions of the employer are sound and defensible.


[89] The applicant was dismissed for serious misconduct involving physical assault upon another employee. Upon proper analysis there can be no factual finding that the applicant committed the acts of assault as found by the employer. Consequently the substantive reason for the applicant's dismissal cannot be held to be valid.

[90] The applicant did however commit an act of serious misconduct. The act of head-butting another employee during the 2010 Christmas party was not properly dealt with by the employer at the time. When considered in the context of the unfortunate history of the Moranbah workplace an act of misconduct which might ordinarily provide valid reason for dismissal cannot be subsequently resurrected to provide basis for dismissal. However that misconduct and other matters related to the site history have impacted upon the question of appropriate remedy.

[91] The procedure that the employer adopted to deal with disciplinary issues arising from the allegations of serious misconduct made against the applicant was, regrettably, inept. The deficiencies in that procedure made erroneous findings an almost inevitable outcome. There was no proper investigation undertaken, the relevant manager displayed manifest bias, he pre-determined his views before even hearing from the applicant, he ambushed the applicant with the allegations, and he unreasonably refused to allow the applicant a support person of his choice. It is difficult to imagine a more blatant example of a denial of natural justice.

[92] Although there were some factors which balance against the case for the applicant, the erroneous findings of assault and the unfortunate absence of natural justice must render the applicant's dismissal as harsh, unjust and unreasonable.


[93] The applicant has sought reinstatement as remedy for his unfair dismissal. However his undisputed misconduct and other workplace behaviours have produced a genuine and understandable concern in the mind of the employer regarding the impact that reinstatement may have upon the workplace environment at Moranbah. In particular, the highly regrettable history of workplace volatility that was identified in the consultant’s report gives rise to serious concern that reinstatement may be construed as some legitimisation of the past practices of bullying, harassment and victimisation.

[94] I have carefully considered whether it would be appropriate to make orders for the reinstatement of the applicant. I share some of the concerns of the employer about the potential impact that may be created by any reinstatement of the applicant. The applicant gained alternative employment very soon after his dismissal and it appeared that he suffered limited financial loss as a result of his dismissal. However, only limited evidence was provided on this aspect of the matter. I remain concerned about the head-butting incident at the 2010 Christmas party. In the circumstances I have decided that reinstatement of the applicant would be inappropriate.

[95] Consequently, for the reasons stated above I find that the dismissal of the applicant was unfair. However, I am not prepared to make Orders for the reinstatement of the applicant.

[96] The applicant’s representative requested an opportunity to be heard further in respect to any alternative remedy involving payment of compensation. Further proceedings to hear from the parties on the question of compensation shall be arranged. The applicant is required to formalise any request for further proceedings within 21 days from the date of this Decision.



Mr C Newman, from the CFMEU, appeared on behalf of the applicant.

Mr W Swain, appeared on behalf of the employer.

Hearing details:



September, 10 & 11.

 1   Exhibit 7 - Annexure JM-4 page 42.

 2   Exhibit 7 - Annexure JM-5.

 3   Exhibit 7 - paragraph 16.

 4   Exhibit 9 - paragraph 18.

 5   Exhibit 2.

 6   Jones v Dunkel (1959) 101 CLR 298.

 7   Exhibit 8 - Paragraphs 5 and 6.

 8   See Transcript of proceedings (11 Sept 2012) @ PN1599.

 9   Exhibit 9

 10   Transcript of proceedings (11 Sept 2012) @ PN1778.

 11   See for example, transcript of proceedings (11 Sept 2012 @ PN1700 and PN1701.

 12   Transcript of proceedings (11 Sept 2012) @ PN1791.

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