[2014] FWC 5072 [Note: An appeal pursuant to s.604 (C2014/6727, C2014/6729) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 27 February2015 [[2015] FWCFB 888] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Noel Cannan
v
Nyrstar Hobart Pty Ltd
(U2013/15506)

Kevin Fuller
v
Nyrstar Hobart Pty Ltd
(U2013/15509)

DEPUTY PRESIDENT WELLS

HOBART, 19 SEPTEMBER 2014

Application for unfair dismissal remedy – condonation – toleration – procedural fairness.

Introduction

[1] Mr Noel Cannan and Mr Kevin Fuller (the Applicants) both filed applications for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) following the termination of their employment by Nyrstar Hobart Pty Ltd (ACN 124 818 113) (Nyrstar). The letters of termination cited “serious misconduct” 1 as the reason for termination. The Applicants sought reinstatement to their former positions as Operators in Casting at Nyrstar’s Risdon Smelter.

[2] The applications proceeded to conciliation before a Fair Work Conciliator but were unresolved and the matters continued to arbitration. Directions were set for the filing of evidence and submissions. A significant volume of material was filed with the Fair Work Commission (FWC) to determine these matters. Whilst not all of the submissions and evidence have been referred to, all have been considered in making this decision.

[3] These matters were not formally joined; however the circumstances of both dismissals were subject to a single investigation process which arose out of largely the same facts. The Applicants relied largely upon the same evidence and the parties agreed to have the matters heard and determined simultaneously.

[4] At the hearing of these matters, both parties sought and were granted leave to have legal counsel represent them. Mr R Reitano appeared for the Applicants. Ms S Zeitz appeared for Nyrstar.

[5] Nyrstar raised a matter of apprehended bias against me hearing the applications. I took submissions from Ms Zeitz on these matters and allowed Mr Reitano to make a number of observations by submission relating to the High Court of Australia decision in Re Media Entertainment Arts Alliance and Theatre Managers’ Association; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 (Polites) on which Nyrstar relied. After considering the submissions and all relevant authorities I ruled, on transcript, 2 that there was no basis to the existence of an apprehension of bias in these matters and, there was no impediment to me hearing and determining the applications, the matters proceeded.

[6] Nyrstar requested part of the evidence of one witness be made confidential, pursuant to s.593(3)(d) and s.594(1) of the Act. I issued an order to effect confidentiality and non-disclosure of this evidence on 3 July 2014.

Background

[7] The background to this matter was borne out in the evidence and is set out below to provide the context of these applications.

[8] Nyrstar is a global company in the mining and mineral processing industry, having purchased the Risdon Smelter from the previous owner Zinifex in September 2006. The Nyrstar Risdon Smelter workforce contains approximately 480 employees and 120 contractors.

[9] Mr Cannan, aged 50 years, and Mr Fuller, aged 57 years, commenced employment with Nyrstar in 1995 as Operators within the Casting Department. At the time of termination they were Grade 6 Operators under the Nyrstar Hobart Production Enterprise Agreement 2010 [2010] (the EBA). 3 Between 1998 and 2001 Mr Fuller had been employed as a Leading Hand, a position he stood down from after the death of his father.

[10] Other than two incidents involving Mr Fuller in 2002 and 2006 involving a contractor, and an incident in the early 2000’s when Mr Cannan was ‘coached’ over the taking of sick leave, neither Mr Cannan nor Mr Fuller have been the subject of formal disciplinary action by Nyrstar for performance or behavioural issues.

[11] The Casting Department operates under a rotating shift roster arrangement of four panels known as A, B, C and D and work a 4 day on, 4 day off rotation. Each panel works two 12 hour day shifts followed by two 12 hour night shifts, with both early and late starters for each shift. Mr Cannan and Mr Fuller have worked all their time at Nyrstar on D-panel. At the time of their termination they were late starters. There are pre-start (safety) meetings at the commencement of each shift which require separate pre-start meetings for the early starters and the late starters.

[12] Around mid-December 2012 Mr Joshua Fraraccio was appointed to the position of Team Leader of D-panel in the Casting Department. The role of the Team Leader changed at that time from operational to non-operational in nature and no consultation took place with D-panel about the change to the role. 4

[13] Between late January and May 2013, a number of industrial and safety disputes were raised by employees from D-panel.

[14] Following a meeting between Mr Fraraccio and Mr Fuller which occurred on 17 April 2013 at which Mr Cannan was present, the issue of bullying by Mr Fraraccio was raised with Nyrstar management.

[15] On 30 May 2013 Nyrstar appointed Mr David Farmer to undertake an investigation of the bullying allegations made against Mr Fraraccio. Mr Farmer held interviews and took statements from a number of employees, including the Applicants (the first investigation). Six D-panel employees made statements relating to Mr Fraraccio’s behaviour. In late July 2013, Nyrstar determined that the actions of Mr Fraraccio were reasonable administrative actions and were not bullying.

[16] Following that determination, and as a result of the information gathered, Nyrstar instructed Mr Farmer to take statements from other employees and to take further statements from some employees previously interviewed. Twelve additional statements were taken by Mr Farmer (the 12 statements) and provided to Nyrstar on 4 September 2013.

[17] On 13 August 2013 Nyrstar held a meeting with the six employees from D-panel who had made statements in the first investigation and advised them that as a result of that investigation, information had come to hand relating to them displaying behaviour which could be considered bullying. Nyrstar suspended the six employees on full pay pending an investigation of the allegations they had bullied Mr Fraraccio.

[18] On 15 August 2013 the Construction, Forestry, Mining and Energy Union (the CFMEU) notified a dispute to the FWC relating to the suspension of the six employees. The dispute came before Commissioner Lee who conducted a conciliation conference and recommended that retired industrial Commissioner Mr Jim Simmonds, who was suggested by the CFMEU, conduct an investigation into the six employees. On approximately 30 August 2013 Mr Simmonds was appointed to undertake the investigation (the second investigation). Mr Simmonds was provided with copies of the 12 statements taken by Mr Farmer.

[19] The 12 statements were never provided to Mr Cannan, Mr Fuller or the CFMEU.

[20] On 20 September 2013 Mr Cannan and Mr Fuller, with union representation, were interviewed by Mr Simmonds. They both provided information on the matters put to them. Mr Tim Wilson-Haffenden, Human Resources Manager for Nyrstar, received Mr Simmonds findings on 27 September 2013. 5

[21] Nyrstar wrote to Mr Cannan and Mr Fuller on 7 October 2013 (the ‘show cause’ letters) asking them to ‘show cause’ why their employment should not be terminated, and advised of Mr Simmonds’ findings.

[22] Mr Cannan, along with Mr Marshall Reeves and Ms Shelley Shay of the CFMEU, attended his ‘show cause’ meeting on 17 October 2013. Mr Wilson-Haffenden and Mr Roger Curtis represented Nyrstar. Mr Cannan raised concerns about the investigation and findings by Mr Simmonds and gave his response to those findings. Mr Cannan’s employment was terminated by Nyrstar on 23 October 2013.

[23] Mr Fuller, along with Mr Reeves and Ms Shay of the CFMEU, attended his ‘show cause’ meeting on 23 October 2013, where he responded to the findings of Mr Simmonds. On 29 October 2013 Nyrstar terminated Mr Fuller’s employment. Both Applicants’ letters of termination state they were dismissed due to “serious misconduct in that you bullied and harassed fellow employees and have shown to have had a number of instances of inappropriate conduct”. 6

The Evidence

[24] Witness statements for the Applicants were provided by:

• Mr Noel Anthony Cannan, 8 an applicant in these matters

• Mr Kevin Milton Fuller, 9 an applicant in these matters

[25] Witness statements for Nyrstar were provided by:

[26] Many of Nyrstar’s witnesses attested to historical conduct of the Applicants, from 1999 to 2009. Considerable additional documentation was provided for consideration, including audio recordings of some of the interviews undertaken by Mr Simmonds. The matter involved over 1700 pages of witness statements and seven hearing days.

Pre-Start meetings

[27] All Nyrstar witnesses described D-panel pre-start meetings as negative, difficult and confronting with D-panel members raising the same issues repetitively; and that they did so in front of Senior Nyrstar managers as a way of embarrassing or undermining their Team Leaders. Mr Seabourne said the group behaviour of D-panel in pre-start meetings was intimidating and offensive, but that individually they were fine to get along with. Ms Williams who attended pre-start meetings about twice a month described Messrs Cox, Roberts, Cannan and Fuller as shaking their heads and rolling their eyes during a meeting. “Those four people made it clear they did not like Fraraccio. I considered that they were trying to push him to the edge by their demeanour in the pre-start meetings.” 27

[28] In response, Mr Cannan, Mr Fuller and Mr Cox denied they undermined their Team Leaders, stating that they had always been encouraged to raise safety issues; and that if these matters were not addressed they had been told to continue to raise matters so they would receive priority in the company’s reporting system (RIMS). It was Mr Cox’s unchallenged evidence that their former General Manager, Mr Brett Fletcher, told them some years ago that they should keep pursuing issues until they were fixed. 28

[29] Mr Seabourne said that Mr Fuller would sometimes, in pre-start meetings, make comments like “Dickheads can’t get nothing right. Everything’s frigged in this place”, 29 because things weren’t being fixed.

[30] Mr Fraraccio said on 18 January 2013 in a pre-start meeting he questioned Mr Cannan about what he had done the previous shift to ensure his own safety. He said Mr Cannan moaned and hissed and said “What I always do. I do what I do. I just do my work and don’t hurt myself”, had embarrassed him and was intended to intimidate and humiliate him. 30 Mr Fraraccio said he did not speak to Mr Cannan about this matter.31 Mr Cannan said that as his shift on the previous day had been “one of the best shifts I had had for a very long time”32 he did not know what to say and replied that he just did his work and didn’t hurt himself. Mr Cannan said he does not know why Mr Fraraccio would have felt that way. Similarly, Mr Cannan said he was not rude, intimidating or arrogant toward Mr Fraraccio in pre-start meetings. He said that he did not intend to make Mr Fraraccio feel uncomfortable or undermined. Also he said Mr Fraraccio never told him that he was rude or intimidating.33

[31] Mr Fraraccio conceded that whilst the issues brought up by D-panel were relevant, some of them were outside of his control. 34 Mr Terry also conceded that safety issues raised by Mr Fuller at pre-start meetings were genuine;35 however he said he did not look forward to attending these pre-start meetings as they were tense and unfriendly.36

[32] Mr Cannan and Mr Cox said the issue of the flues and smoke was raised several times but they continued to raise the issue because they had ideas as to how improvements could be made, such as manually cleaning the system, with a number of issues previously being resolved by managers with higher authority.  37

[33] Mr Cox said that generally pre-start meetings for D-panel late starters took 15 to 20 minutes, and that it was not uncommon for multiple matters to be raised at one meeting as the plant had a lot of issues. 38 Nyrstar witnesses stated that D-panel pre-start meetings took longer than other panels in Casting.

[34] Mr W Hinds said of Mr Fuller’s behaviour at pre-start meetings “Kevin tends to be a bit animated, but they would be dealt with on the day.” 39

[35] Mr Mudge described Mr Fuller as a spokesperson for the group and that Mr Cannan could be very negative. 40 Mr Phillips stated that he had not observed any bullying behaviour by Mr Fuller or Mr Cannan toward Mr Fraraccio or anyone else in pre-start meetings or otherwise and that if he had he would have immediately reported it. 41

[36] Mr King said D-panel pre-start meetings were antagonistic to Team Leaders, although under cross-examination he stated that he rarely went to the late start meetings with Mr Cannan and Mr Fuller. 42 He also said that workers were encouraged to raise matters at pre-start meetings and he had no issue with the matters that were being raised by Mr Cannan and Mr Fuller. However, he said that the way they raised issues was not respectful.

[37] Mr Seward said he did not feel intimidated by the Applicants and that he never told Mr Cannan or Mr Fuller that they should not raise matters in pre-start meetings. He said after expressing his displeasure at Mr Cannan’s use of the word “demand” in a pre-start meeting, Mr Cannan never used the word again. 43

[38] Mr Rainbird said it was appropriate for matters to be raised in the right way at these meetings. However, he had never communicated to Mr Cannan or Mr Fuller that they should not raise matters again or that they needed to have some understanding of Mr Rainbird’s perspective. He also confirmed that he took no action to counsel Mr Fuller on the way he spoke or swore in the workplace. 44 Mr Cox said D-panel employees were never told by management not to raise issues or to stop raising issues at pre-start meetings.

Workplace Disputes

[39] Mr Reeves said it was not unusual for him to become involved in disputes either at the request of a delegate or management. Mr Rainbird was aware of the dispute settlement procedure in the EBA stating if a matter was not resolved through discussion, managers would refer the matter up the line to more senior managers, which included himself and Mr Wells. Generally, witnesses on both sides understood that once a matter was in dispute, the status quo would be maintained until the process was finalised.

Crib Breaks

[40] Crib breaks for D-panel was a long running dispute in the workplace. Mr Reeves provided a history of crib breaks in Casting from 1994 stating that around 2006 Superintendent for Casting, Mr Craig Wells, introduced three crib breaks of forty minutes each shift, in exchange for continuous running of the machines. He said that after making recent enquiries of other panels in Casting this is the practice that continues to apply. Messrs Cannan, Fuller and Cox all provided the same evidence as Mr Reeves as to the establishment of three 40 minute crib breaks. Mr Wells denied Mr Reeves’ version of continuous running and extended crib break arrangements stating that crib breaks for Casting included three 30 minute breaks plus 5 minutes walking time. Mr W Hinds confirmed that shift workers are entitled to three 30 minute breaks with an additional 5 minutes walking per shift. 45 However under cross-examination, Mr W Hinds recanted his statement about D-panel taking 45 minutes for crib breaks and he confirmed in the mid-2000s the crib times had change by 5 minutes. 46

[41] Mr Wells confirmed that whilst the issue of crib breaks had been put into dispute on a number of occasions, it had never progressed through the disputes settling procedure. 47 Mr Fuller advised he formally put the matter of crib breaks into dispute on 20 May 2013, 48 but that Mr Fraraccio never escalated the matter for resolution. Messrs Fraraccio,49 Rainbird, Wilson-Haffenden and Ms Newton were unable to say what had occurred about resolving that dispute even though Ms Newton said she would normally ensure the process is handled as per the disputes resolution procedure. Mr Fraraccio could not recall whether he passed the dispute notice to Mr Rainbird or Mr Wells and he could not recall whether he had further discussions with his supervisors about it.

[42] Mr Fuller and Mr Cox said Mr Fraraccio wanted D-panel to take shorter crib breaks. Mr Fuller stated Mr Fraraccio never said to him, or showed him, that the EBA allowed for crib breaks that were different to the D-panel arrangements. Mr Cannan advised that Mr Fraraccio did raise the issue of crib times “many times”, 50 but he did not comply with Mr Fraraccio’s requests because of the longer crib time arrangements. He said from time to time other Team Leaders had raised the issue of crib times.

[43] Mr Fraraccio advised of his understanding of the shift roster crib break for D-panel under Clause 3.6.2(ii) of the EBA which was, under cross-examination, identified as the crib break arrangements for day workers which allowed only two crib breaks. 51 He said however that D-panel took three 45 minute crib breaks each shift. He confirmed Mr Fuller disagreed with him and had advised him on a number of occasions that he would put the matter into dispute if he persisted to tell them to shorten their crib breaks. Mr Fraraccio confirmed he had a number of discussions with Mr Fuller and others about the matter, that he was aware there was disagreement and that discussion was the only action he took on the matter.52 Mr Rainbird said Mr Fraraccio discussed the matter with him, that Mr Fraraccio never did anything about it and he didn’t tell Mr Fraraccio to do anything about it.

[44] Mr Fraraccio said he considered Mr Fuller was attempting to bully him when he swore and was aggressive about placing the crib break matter into dispute. 53

Manning Levels

[45] Mr Fuller said he raised a dispute in January 2013 with Mr Fraraccio over manning levels. He said after discussing the matter further with Mr Rainbird, he conceded that he was wrong and withdrew the dispute. Mr Rainbird confirmed meeting 54 with Mr Cannan and Mr Fuller about the matter and subsequently D-panel withdrew the dispute. Mr Fraraccio said Mr Fuller would not accept his explanation on this matter, but accepted the same explanation from Mr Rainbird, and that this was evidence of undermining behaviour.

SO2 Procedure

[46] Mr Reeves recalled being involved in a dispute concerning SO2 gas leaks which was resolved in a meeting with Mr Rainbird and Mr Fraraccio. He was aware of a new procedure developed in Casting for SO2 leaks, but he had had complaints from employees in A, B and C panel who were concerned about being told to stay on the floor when the SO2 alarm was sounding. He said D-panel decided, due to safety concerns, they were not going to work under the new procedure, which involved wearing a personal monitor and to re-enter the area.

[47] Mr Fuller said he found the new procedure and Mr Fraraccio’s approach unacceptable “… because the alarm was still going. He was suggesting to do that while the alarm was still going. The cell room operators vacated that area when the alarms went off and never returned to that area while those alarms were going and he was requesting us to enter that area despite the alarm still going”. 55

[48] Mr Cox denied that all issues with the new procedure were resolved with the other panels in Casting and he said that D-panel had genuine issues with the new procedure.

[49] Mr Rainbird said as a result of D-panel stopping work in February 2013, he discussed the safety concerns some members of D-panel had and issued a direction that, until further notice, the Casting floor must evacuate when the alarms were sounding. As part of those discussions, Mr Rainbird said he was to gather more data on the matter and involve the union occupational safety person in a final resolution. At the time of hearing, it was confirmed this direction as still in place.

Block Jackets

[50] Mr Cannan and Mr Fuller were involved in the risk assessment for block jackets, which are protective clothing used when Operators are making zinc blocks. Mr Cannan said there was an issue of hygiene relating to the use of soiled jackets with Mr Cox confirming block jackets were not always laundered and that he had had to wear jackets that were dirty. Mr Cannan said D-panel suggested employees be issued with their own jackets and that the additional block jackets arrived in July 2013 just before he went on leave and was subsequently stood down. Mr Fuller’s evidence on this point was supportive of Mr Cannan’s evidence. Mr Cox said more block jackets had been ordered, however not enough for each individual and that there was frustration around the length of time it took to get additional block jackets. He denied there was any aggression in the way the matter was raised at pre-start meetings but that frustration may have manifested in Mr Cannan and Mr Fuller swearing and shaking their heads.

[51] Mr Rainbird confirmed that an additional 20 block jackets were ordered to deal with the problem D-panel had with block jackets and that many of the new jackets had not been used. He said at some stage in 2013 there had been a cyclic downturn in the making of zinc blocks, but he could not recall the exact date. 56 Mr Rainbird said that they regularly made dross blocks to recycle back into their production, but after a further risk assessment, they now do not use block jackets.57

Rotations

[52] Mr Cannan said D-panel rotated the jobs they performed because this was a safer way to work as you did not get stuck doing the one job which could involve heavy manual labour. He said this position had been backed up by occupation consultants who had been to the workplace. Mr Cannan confirmed that Mr Fraraccio wanted no rotation of jobs and D-panel members objected to this on the basis of repetition and the nature of the work. 58 Mr Fuller said that rotations on D-panel entailed working on the machines for a full shift, but for other duties such as front forks, the mixer, the furnaces, the feed floor and the block line, those duties were rotated around after a crib break.59 Most of the previous Team Leaders of D-panel gave evidence describing D-panel’s position on rotation of jobs as inflexible and negative.

[53] It was Mr Rainbird’s evidence that Mr Fraraccio is not confrontational, is calm, balanced and very considered and that D-panel’s approach demonstrated a negative attitude.  60 He said despite management efforts, they had not been able to get D-panel to lessen rotation of jobs or shorten crib breaks.

D-panel Conduct

[54] Mr Fraraccio said whenever he raised efficiency matters Operators on D-panel would be argumentative and confrontational. 61 He described getting anxious and would “feel sick”62 about pre-start meetings when he knew that Mr Fuller, Mr Cannan and another Operator, Mr Roberts, were going to be there. He said he felt any response he gave them would be unsatisfactory, describing the block jackets issue and the non-use of new jackets once they had arrived.

[55] Mr Cox confirmed that Mr Cannan and Mr Fuller would sometimes take the lead on issues for D-panel. He said that it appeared that Mr Fraraccio had a dislike for certain people and favoured others and this led to the bullying allegations. He said that if former Team Leaders believed D-panel employees were rude or confrontational, “they made no effort to enlighten us as to that”. 63 He also said that he did not believe employees on D-panel had behaved this way; stating that matters were put into dispute for good reason and employees did not plan what to bring up at pre-start meetings.64 He also denied that D-panel was critical of the company or their Team Leaders.

[56] Under cross-examination, Mr Phillips recanted a number of observations he made about the behaviour of Mr Cannan, Mr Fuller and D-panel in general in the statement he made to Mr Farmer in August 2013, 65 which was one of the 12 statements. He said the issue of D-panel ringing alarms had been taken up with Mr Rainbird and Mr Wells, but nothing had been done about it.66

[57] Mr W Hinds’, Mr T Hinds’, Mr King’s and Mr Seabourne’s evidence was that D-panel were resistant to change; rang the help alarms more frequently than other panels; did not trouble shoot problems; and that pre-start meetings were unpleasant. Mr Seabourne said he felt pre-start meetings were scripted, that D-panel would not take management responses on board and he would spend the last of his days off worrying about the pre-start meeting the next day which made him tired and grumpy and effected his health. Mr T Hinds said during his time as Team Leader there were 23 members of D-panel which included Mr Cannan and Mr Fuller; that he found working on D-panel very difficult and he became tired and tense and he dreaded going to work. He said as a group, their behaviour made him feel like he was being attacked.

[58] Mr Schultz described D-panel using the help alarms as a ‘bullying tactic’. 67 Mr Terry said individual Operators on D-panel, including Mr Cannan and Mr Fuller, could be intimidating and this reduced the number of inspection walk-throughs he did when D-panel were working.68

[59] It was Mr Mudge’s evidence that D-panel was “known as “the burn-out crew” because the perception was that they gradually wore down their Team Leaders and Leadership Group.” 69 He said one on one the individuals on D-panel were easy to get on with. As a group, they were very hard to deal with and that working with D-panel made him feel on edge, with him expecting something negative to happen.

[60] Mr Rainbird said that whilst he had no data on the issue, D-panel seemed to ring help alarms more often than other panels.

Cannan’s Conduct

[61] Mr Fraraccio described Mr Cannan’s usual greeting at work as “Good as you can be here I guess” and that he would screw his face up and grunt in pre-start meetings when Mr Cannan disagreed with something he said. Mr Cannan rejected the assertion that he would greet Mr Fraraccio in this way, but would say, his days off had not been long enough.

[62] Mr Cannan recalled the meeting when Mr Fraraccio was introduced as the new Team Leader in which D-panel members were told that his role was not to operate machinery or work on the floor, but to deal with career paths, holidays and people management. Mr Cannan stated he was not confrontational or unpleasant in his dealings with Mr Fraraccio or ever ‘gang up’ on him. However he said that he did challenge Mr Fraraccio on matters which he disagreed with him about. He said he never needed to swear when he was discussing issues and that no previous Team Leader had ever taken exception to swearing in the workplace.

[63] Mr T Hinds specifically described an event involving Mr Cannan and his repeated pressing of the help alarm (about every 5 seconds) when operating the CM4 machine when Mr Cannan could not locate a problem with the machine. He said that action was agitating, that he discussed the matter with Mr Cannan at the time and to his knowledge Mr Cannan did not repeat the behaviour.  70 Mr Terry confirmed he had no dealings with Mr Cannan other than at pre-start meetings.71

[64] It was Mr Cannan’s evidence that he had nothing to do with any issue involving Mr Peter McCullum and the rotation of jobs.

[65] Mr Fraraccio said Mr Cannan had been unreasonable over an incident on 27 February 2013 involving the HF2 machine and safety barrier tape, wherein he advised Mr Cannan should have been more pro-active about fixing the safety matter rather than just reporting it. He said following a discussion with Mr Cannan about this, Mr Cannan had yelled at him “You’re bloody joking”. 72 Mr Cannan confirmed the issue involved barrier tape around machine HF2, that the wrong tape had been used, and that he spoke with Mr Fraraccio and helped him install black and yellow tape. Subsequently Mr Cannan noticed that some of the tape had been removed so he informed the crane operator, thinking the crane operator would deal with it. He also spoke to the Team Captain and Mr Fraraccio about the matter. Mr Cannan said after, in the discussion with Mr Fraraccio, he had disagreed with Mr Fraraccio’s position that he (Mr Cannan) should have put the tape up and that he may well have said “you’re joking”.73 He said Mr Cox was present during the conversation with Mr Fraraccio and could attest that Mr Cannan did not behave as described by Mr Fraraccio.

[66] Mr Cox confirmed he witnessed the discussion between Mr Cannan and Mr Fraraccio in the control room and that both Mr Fraraccio and Mr Cannan were “forthright in their respective positions” 74 but neither lost their temper, raised their voice, used swear words, huffed, snarled or were aggressive. He confirmed that Mr Fraraccio informed Mr Cannan he should have done more than he did to rectify the safety hazard and Mr Cannan responded that he had done all he could to deal with the hazard.

[67] Mr Cannan confirmed that he did approach Mr Fraraccio on 31 March 2013 about a back feed issue with the furnaces in Casting and that he said he thought it was a problem caused by the leadership group. Mr Cannan admitted he was angry at the time but denied engaging in an outburst. He said the noise of the plant operating requires him to wear ear plugs and it was likely he did speak loudly. He said he followed Mr Fraraccio’s advice and went and spoke with Mr King and the matter was dealt with. Mr Fraraccio’s evidence relating to the event accorded largely with Mr Cannan’s evidence although he indicated Mr Cannan had ranted rather than dealing with the issue constructively.

[68] Mr Cannan confirmed Mr Fraraccio had, on one shift, asked him to clean up an oil spill from a fork lift, but denied there was any dispute over the matter. He said whilst someone not allocated to a role would have been best placed to deal with the oil, he had cleaned it up when asked. Mr Fraraccio indicated Mr Cannan had been argumentative.

[69] Mr King described being belittled by Mr Cannan at a pre-start meeting on 10 April 2013, referring to Mr Cannan making comment of “getting a proper Process Leader”. He said despite him discussing the matter with Mr Cannan later, Mr Cannan did not apologise to him. He could not recall another example of where he had been belittled by Mr Cannan or Mr Fuller. 75Mr Cannan agreed he made the comment during a pre-start meeting regarding Mr King that “It would be good to get a proper process leader back”.76 He said he told Mr King afterwards that he meant nothing personal by the comments and that Mr King did not indicate to him that he felt belittled

[70] Mr Cannan recalled a discussion on 29 June 2013 with Mr Phillips involving CM2 machine and the messy state it was left in at the handover of D-panel’s previous shift. Mr Cannan advised he had been moved off that machine about one hour into his shift as CM2 had malfunctioned and that he had been told to work on B Scales. He said he had explained that situation to Mr Phillips and that he had told the Team Captain, Mr Mark Adams, on many occasions about the slabs accumulating under CM2. Mr Cannan said he challenged Mr Phillips’ version of events because he had not been responsible for that machine. Mr Phillips said he did not report a matter involving the melters where Mr Cannan replied to him saying he would ‘fucking fix it’, and that he took no action on that matter. 77

[71] Mr Phillips explained that when he described the Applicants as being ‘negative’ he meant to describe them as not agreeing with changes to crib times and rotations, and that on occasion Mr Cannan would say the company were trying to ‘screw’ them or ‘fuck’ them.

[72] Mr W Hinds described an incident between himself and Mr Cannan, which occurred sometime between 2000 and 2004, alleging Mr Cannan ran at him in an attempt to hit him. He said the matter was reported to the then Superintendent, Mr Rob Tyson and he confirmed that Mr Tyson had dealt with the matter. 78 Mr Cannan’s evidence was that he did have a disagreement with Mr W Hinds in relation to the handling of hot product when Mr W Hinds called him a “pussy”79 because he could not hold his hand on the hot product. He said he told Mr W Hinds he would never be a Team Leader and that it was after that that Mr W Hinds made the allegation that Mr Cannan had charged at him and stopped short. Mr Cannan said Mr W Hinds’ version of events later changed and that when Mr Tyson and then Team Leader Mr Michael Fletcher looked into the matter no further action was taken. Mr Cannan said he was not aware if Mr W Hinds was spoken to about his behaviour at that time.

[73] Mr Cannan said over the years issues had arisen about the role of contractors at the Nyrstar site, but he denied ever telling Mr Schultz not to help, or not to seek help, from contractors.

[74] Mr Cannan said that Mr Fraraccio conducted a performance review with him on 15 July 2013 and discussed the way he should raise safety hazards. He said Mr Fraraccio never mentioned raising safety issues to him prior to that date.

[75] Mr Cannan said that at no time did Mr Fraraccio, or anyone else, tell him that he rang the help alarms too much. Mr Cannan said it was incorrect to say he never undertook trouble shooting with plant 80 and that the first complaints he heard about him sounding the sirens was after he was stood down on 13 August 2013. Mr Cannan denied ever using the phrase ‘these muppets’ or ‘they have fucked that up again’.

[76] Mr Cannan said Mr Fraraccio never had a discussion with him about changing his attitude or behaviour, although he did recall a conversation with Mr Fraraccio about his method of delivery when raising concerns, but Mr Fraraccio had never stressed the point to him. He said he was never the subject of disciplinary action regarding the matters raised in Mr Fraraccio’s statement and that he was never subject to any counselling or warning about his behaviour or performance 81 at work. He also said there was no ongoing problem with D-panel’s production figures.82

[77] Mr Cannan said no-one ever told him that it was awful or horrible to work in D-panel and the first time he was aware that anything like this had been said was when he saw the 12 statements disclosed in these proceedings. He said he used to give his previous Team Leader, Mr Seward a ride home from work. 83

Fuller’s Conduct

[78] Mr Fuller said whilst he was generally known to swear, swearing was common within the workplace.

[79] Mr Fraraccio described Mr Fuller’s usual greeting was “Good until I fucking came here” or “Better before I got here”. He said his foul language and aggressive or rude tone made him feel uncomfortable. 84 Mr Fuller denied greeting Mr Fraraccio negatively, but said that he could have said this jokingly once or twice “good until I fucking come here”.85 Mr Fuller said he did say things like ‘I see it ran well while I’ve been gone’ or ‘they’ve fucked it again’, due to his frustration with the problems encountered with the plant, but he denied being aggressive or rude.

[80] It was Mr Fuller’s evidence that he generally got on well with his previous Team Leader, Mr Seward and other employees and managers, although occasionally he did have disagreements.

[81] Mr Fuller said he only placed matters into dispute that required action and only on three occasions when Mr Fraraccio was Team Leader. Mr Fuller confirmed that training of contractors had been a matter of dispute in the workplace previously and that the matter had been resolved through the Commission with a recommendation of the company consulting with its employees over the issue. Mr Fuller recalled an incident with a contractor, Mr Dean Herring where Mr Fuller was unaware that Mr Herring had been trained on the operation of the MF1 arrester feed button and had stopped Mr Herring from performing that duty. He was subsequently advised by Mr Schultz that Mr Herring had been appropriately trained.

[82] In relation to the issue of excessive smoke in Casting, Mr Fraraccio said he had had to coach Mr Fuller and another Operator about opening dampers and that Mr Fuller would always raise the issue of the flues in the plant and that he was deliberately smoking the place out, because he opposed the flue system being made manual. Mr Fraraccio said Mr Fuller was an experienced Operator and that he should not have been having these issues when operating a furnace. Mr Fuller said the flue issue arose regularly which involved fumes being released into the area where the furnaces were and denied that he misused the dampers. He said that he used the required amount of chloride, that he worked in accordance with his training and that the flues were not his sole responsibility.

[83] Mr Fraraccio described an incident, of which he had made a file note, 86 involving another Operator, Mr McCullum. Mr Fraraccio said he saw Mr Fuller bully Mr McCullum into not performing the feed floor role for an entire shift. Mr Fraraccio said he had approached Mr McCullum about not rotating the feed floor job for one shift; that Mr McCullum had agreed; and that he later observed Mr Fuller talking with Mr McCullum in an animated way and heard Mr McCullum say “OK, OK, we can rotate it then”.87 It was Mr Fraraccio’s evidence that the events were also witnessed by former Production Coordinator, Mr Rose. Mr Fuller confirmed he did speak to Mr McCullum about other workers generally regarding all tasks in Casting as ‘rotational’, but said he told Mr McCullum that if he was happy to work on the feed floor all day, it was up to him. Mr Fuller denied bullying or intimidating Mr McCullum on that day or any other day. Mr Fraraccio said he now understood that Mr Rose was not able to confirm his version of events and that Mr McCullum had said he was not bullied.88

[84] Mr Fuller said he did not constantly ring alarms or do so without troubleshooting problems. He said he was encouraged to ring the alarm the by the Team Captain when he needed help, that he only did this when necessary and he had never been told not to do this. He said the first he knew about there being a problem with D-panel ringing alarms too much was when he read the statements of previous Team Leaders relating to these proceedings. He said he always trouble shot his machinery and only called for help as a last resort and he denied ever saying that it was not his job to trouble shoot problems.

[85] Mr King gave evidence relating to an incident between Mr Fuller and a contractor Mr Steven Dodge. He confirmed under cross-examination that he was not present when Mr Fuller had the conversation with Mr Dodge and he could not recall the specifics of any conversation in the office between Mr Fuller and Mr Fraraccio. 89 Mr King’s evidence about this matter in his statement was, in light of his cross-examination, unsatisfactory. Mr Fuller admitted he did have a run in with Mr Dodge, in February 2013. He said he was frustrated with Mr Dodge’s performance of unloading bundles without putting stickers on them. This was despite Mr Dodge having been told on a number of occasions what was required. Mr Fuller denied calling Mr Dodge a ‘fucking idiot’ or swearing at him, but admitted that he did swear in his presence. In a meeting with Mr Fraraccio and Mr Ackerley, in which Mr Fraraccio advised the behaviour was inappropriate, Mr Fuller confirmed he did say that he spoke to “men as men” and that he also asked Mr Fraraccio whether he should “stop at the gate and put a dress on”.90 He said he realised “in the cold light of day that [it] was a mistake”91 to have sworn, that Mr Fraraccio explained the Nyrstar Code of Business Conduct which requires employees to act with “respect, dignity, fairness and courtesy”. 92 Mr Fuller offered to apologise to Mr Dodge for his swearing, however, Mr Fraraccio said that was not necessary.

[86] In relation to this incident, Mr Rainbird confirmed that at a meeting he had with Mr Fuller over the incident, no one had suggested that Mr Fuller had called Mr Dodge a “fucking idiot”. 93

[87] Mr Fuller denied that D-panel production was a problem, stating that the production graph in the monitoring room showed their production was up with the rest of the panels. 94

[88] Other than an incident in 2002 which involved him writing inappropriate words on a check sheet, Mr Fuller said he was never formally disciplined or counselled for anything at work, but said he was never warned about any of the matters referred to in any of the witness statements provided by Nyrstar. Under cross-examination, Mr Fuller denied seeing a progressive discipline report of 5 July 2006 95 on his employment file shortly after he was suspended from duty. Mr Fuller said he did not recall this incident, which involved him speaking to two contractors in a degrading manner.96

[89] Mr Fuller said he was accompanied by Mr Cannan to a ‘formal’ meeting with Mr Fraraccio on 17 April 2013. He denied that Mr Fraraccio described to him an increase in unacceptable behaviour, saying that Mr Fraraccio opened the meeting with “Aren’t you happy here. Do you want to leave here?” 97 Mr Fuller said he explained to Mr Fraraccio that he was happy and that he did not wish to leave Nyrstar, however Mr Fraraccio kept asking him did he want an exit package. Mr Fuller said that whilst Mr Fraraccio told him he wanted to see an improvement in his behaviour; Mr Fraraccio never told him that his employment was on the line.98 Mr Fuller said he stopped swearing and bringing matters up in the pre-start meetings, which was reflected in his last performance appraisal99 conducted by Mr Fraraccio. Mr Fraraccio said this meeting was one of two formal discussions with Mr Fuller about his behaviour and attitude, with the other meeting being held on 5 February 2013.100 Mr Fraraccio said Mr Fuller did not acknowledge any wrongdoing and that his attitude did not change.

[90] Mr Fuller said he, together with Mr Seward, conducted a risk assessment on the replacement of the stairs to HF1 machine. Following that risk assessment, Mr Mick Hinds, the superintendent, assured D-panel that the stairs would be put back and that he continued to raise the issue at pre-start meetings and with management because the stairs had not been replaced.

[91] Mr W Hinds said Mr Fuller ‘invaded his body space’ 101 which he said was dealt with by the then Team Leader, Mr Paynter.

[92] Mr Fraraccio said he felt disrespected when Mr Fuller told him to weigh product on B scales. Mr King said he was present when Mr Fuller made that comment to Mr Fraraccio; that it was not the job of a Team Leader; and that it was not what Mr Fuller said, but more the way in which he said it. Mr Fuller denied that he was being disrespectful to Mr Fraraccio on the occasion he suggested he weigh product on the B scales as the shift was very busy and other Team Leaders had carried out this role on high volume shifts.

[93] Mr Fuller said he was not made aware by Mr Phillips of any loss of process time due to him being in the showers early on one shift and Mr Phillips conceded in his oral evidence that the incident described in his written statement 102 involving Mr Fuller leaving early for a shower was not a “major issue”.103 Mr Phillips also stated that other than the contractor training dispute in August 2013 with Mr Fuller, he never witnessed any outbursts from Mr Cannan and Mr Fuller in meetings.

[94] Mr T Hinds described Mr Fuller referring to Process Coordinators in discussions with him as “proper cunts”. 104 Mr T Hinds said in cross-examination that he did not consider this matter serious enough to warrant any action and that swearing was part of the male dominated work environment. Mr Fuller denied ever referring to Production Coordinators as described by Mr T Hinds, stating that he was once a Production Coordinator himself. He also denied ever telling Mr Schultz that he was not to help contractors or to seek help from them.

[95] Mr Fuller said he had two formal discussions with Mr Fraraccio about a need to change his behaviour. Mr Fuller also recalled Mr Fraraccio saying that the workplace should be an enjoyable place to be and that the culture of D-panel was negative and required improvement. 105

[96] Under cross-examination, Mr Fraraccio stated he never told Mr Fuller “word for word” that he was performance managing him, but that he would “coach the guys in the moment when there was issues [sic] arose”.  106 He never formally disciplined any member of D-panel.

[97] The following exchange took place under cross-examination with Mr Fraraccio:

[98] It was Mr Fuller’s evidence that Mr Fraraccio never told him at any stage that he considered conversations with Mr Fuller to be confronting or uncomfortable. Mr Fuller denied ever pulling facial expressions or adopting an aggressive tone.

Performance Reviews

[99] Mr Wilson-Haffenden highlighted comments that had been made in Mr Fuller’s performance reviews from 2005 through to 2013 mostly related to his personal approach in meetings and a requirement for him to be more positive and less disruptive. 108

[100] Mr Fraraccio said he conducted a performance review on Mr Cannan on 15 July 2013, scoring him as satisfying all the performance criteria; that he had a conversation with Mr Cannan around his opportunities to improve; and that there was no mention in this review about him using derogatory terms when speaking.  109 Likewise, Mr Fraraccio confirmed that for his review of Mr Fuller on 15 July 2013 he scored Mr Fuller as satisfying all of the performance criteria except for one which related to the way he spoke. Again he provided comments on the document and gave feedback to Mr Fuller. 110 Mr Fuller denied he was not interested in feedback from Mr Fraraccio, stating that the feedback process was interrupted when he was required to resolve a work matter ‘upstairs’ and not being able to return to the meeting.

[101] Mr Schultz said Mr Fletcher had completed performance reviews on the Applicants in 2006/07. Despite his written statement, under cross-examination, Mr Schultz confirmed that the performance reviews of Mr Cannan and Mr Fuller had recorded them as satisfactory employees. 111 Whilst Mr Schultz sought to interpret the meaning of words written in performance reviews of Mr Cannan and Mr Fuller conducted by the then Team Leader, Mr Fletcher, the words used by Mr Fletcher were clear and unambiguous. I am not inclined to accept Mr Schultz’s evidence on this point as nothing indicated Mr Schultz’s interpretation should be preferred.112 He said when he was Team Leader, he provided review comments to the Applicants about using the Nyrstar Way, and that they dealt with people in a negative and confrontational way.

[102] Mr Cannan recalled his performance appraisal meeting with Mr Schultz when the use of the Nyrstar Way of dealing with issues was mentioned. He said he was never told in any performance appraisal process or at any other time, that the way he conducted himself was unsatisfactory. 113

[103] Mr Seward said whilst he was Team Leader at D-panel he scored Mr Fuller a satisfactory rating of 10 for most of the criteria, that he had demonstrated performance above the standard in the ‘safety’ and ‘skills in coaching others’ criteria and that he addressed some concerns he had with Mr Fuller’s behaviour in the improvement/development section of the review asking him to be more positive, less swearing and to use the Nyrstar Way. 114 He also said that Mr Fuller took pride in his performance and cared about his work. Mr Seward scored Mr Cannan satisfactorily for all criteria and above the standard for the safety criteria; whilst advising Mr Cannan in the ‘improvement/development’ section of the review, to use the Nyrstar Way when communicating and to be realistic about what could be achieved with workplace issues. Mr Seward confirmed that if he had reason to take disciplinary action, he would have done so.

[104] As for performance reviews conducted at Nyrstar, Mr Rainbird said the process needed to be transparent and employees should not be misled, for good or bad, on their performance at work. He said any conversation with the employee should reflect the review document. He said he encouraged Team Leaders to be positive and look for areas of improvement; 115 that there was still room for improvement when an employee was marked as satisfactory; and that he was not privy to the conversations held between the Team Leaders and the Applicants.116

Investigations & Procedural Fairness

The First Investigation

[105] Messrs Reeves, Cannan and Fuller and Ms Newton gave substantially similar evidence as to the initial raising of allegations of bullying by Mr Fraraccio at a meeting on 1 May 2013. Ms Newton requested further details of the allegations and Mr Reeves advised her on 9 May 2013 there were more complaints to come. Mr Reeves and Ms Newton confirmed the CFMEU suggested using Mr Farmer to undertake the investigation; that Nyrstar had agreed and that Mr Farmer interviewed six D-panel employees and a number of managers, between 2 June and 15 July 2013. Ms Newton confirmed that Mr Fraraccio was provided copies of all of these statements prior to his interview with Mr Farmer. 117

[106] Mr Farmer was engaged by Nyrstar on 30 May 2013 with Mr Wilson-Haffenden saying findings were then to be made by him on the basis of the statements obtained by Mr Farmer. 118 Ms Newton said she provided Mr Farmer with copies of Nyrstar’s Performance Improvement and Discipline Policy, Fair Treatment and Dispute Resolution Policy and the Risdon Smelter site’s Anti-Discrimination Policy. 119

[107] Ms Newton said that by 26 July 2013 she had received the statements from Mr Farmer and prepared a supporting document summarising the complaints and concerns of D-panel, and that on that day she met with Messrs Wilson-Haffenden, Wells and Rainbird, wherein they concluded that Mr Fraraccio had taken “legitimate and reasonable management actions carried out in a fair and reasonable manner”. 120 On the evidence of Ms Newton and Mr Wilson-Haffenden the following then took place:

 • A meeting to inform the employees of this on 5 August 2013 was abandoned due to unprotected industrial action by D-panel and rescheduled; 

 • On 13 August 2013 a meeting was held and the six employees (less Mr Cannan, who was on leave) were advised by Ms Newton of the outcomes of the first investigation and were advised of their stand down and investigation for behaviour toward their Team Leader.123

• Ms Newton also advised the company would be speaking with a number of other parties, that they would be provided with specific allegations and given an opportunity to respond. Mr Cannan was advised similarly on 15 August 2013 and all employees were provided with a letter at the meeting advising of Nyrstar’s concerns. 124

[108] On 8 August 2013 Nyrstar instructed Mr Farmer to interview other employees who had historically been involved with D-panel. An additional eight employees, together with Messrs Fraraccio, Rainbird, Phillips and Wells were interviewed.

The FWC Recommendations

[109] Mr Wilson-Haffenden said subsequent to the standing down, the CFMEU notified a dispute to FWC before Commissioner Lee, which gave rise to recommendations and the second investigation by Mr Simmonds. 125 Ms Newton said Commissioner Lee provided recommendations that included Nyrstar clarifying in writing the allegations the subject of the investigation, that Mr Simmonds undertake an independent investigation and the ability for the suspended employees to return to work in another area of the plant, should they wish.

[110] Ms Newton said that after the conference before Commissioner Lee, she advised Mr Farmer of the engagement of Mr Simmonds and requested him to gather additional statements from Ms Williams, Messrs Rainbird, Wells, Fraraccio, Schultz, King, Phillips, T Hinds, Seabourne, Moore, Terry and Mudge, the 12 statements. Ms Newton said these statements were completed on 29 August 2013 and that somewhere around that time she met with Mr Farmer and that she was shocked at the content of the statements.

The Second Investigation

[111] In accordance with Commissioner Lee’s recommendations Mr Wilson-Haffenden wrote to Mr Cannan and Mr Fuller on 30 August 2013 126 providing greater details of the allegations against them, that on 4 September 2013 he received the 12 statements from Mr Farmer and that he provided those statements to Mr Simmonds that day127 On 10 September 2013 Mr Wilson-Haffenden received from Mr Simmonds a set of draft allegations128 to be put to the six individual employees under investigation. On the evidence, Mr Wilson-Haffenden undertook the following:

[112] Mr Reeves said the only terms of reference formulated for the second investigation where the allegations provided to the employees on 18 September 2013 and which were responded to in the interviews with Mr Simmonds, whilst he and Ms Marshall of the CFMEU were present. He said at that time he did not know whether the allegations contained any information from the 12 statements taken by Mr Farmer, as at the time he was not aware of the existence of those statements. He stated that Mr Simmonds had the allegations with him when he conducted the interviews and that Mr Simmonds was fairly aggressive. Mr Reeves confirmed that neither he nor Ms Marshall raised Mr Simmonds’ aggression with him at the time.

[113] In relation to the allegation of bullying of Mr McCullum, Mr Wilson-Haffenden put Mr Simmonds in contact with previous Nyrstar Production Coordinator James Rose and that Mr Rose provided a statement 133 to Mr Simmonds relating to that allegation; and that Mr McCullum also provided a statement134 to Mr Simmonds.

The ‘show cause’ letter and meetings

[114] Following receipt of Mr Simmonds’ report, Mr Wilson-Haffenden said the six employees were provided with correspondence 135 on 7 October 2013 detailing the findings against them, asking them to ‘show cause’ as to why their employment should not be terminated and that he was entitled to replace Mr Simmonds’ findings with his own. Relevantly, the following exchange took place under cross-examination:

[115] The evidence provided that Mr Wilson-Haffenden and Production Manager, Mr Curtis met with Mr Cannan on 17 October 2013 and that:

[116] Mr Wilson-Haffenden said that during the show cause meetings he had tried to discuss the further information from the 12 statements but that “Mr Reeves took over the meeting and said, “You’ve asked us to show cause. We will respond”.” 138 He also said he had had some discussions with Mr Noel Washington of the CFMEU which indicated that there were other Team Leaders involved and that the CFMEU had never requested further information from him.139 He said that he had a number of discussions with Mr Washington about what options might be available, after receiving Mr Simmonds’ report.140

[117] Both Applicants stated they were unaware of any matters being raised with their representatives that were historical in nature and that were being considered as part of their termination. 141

[118] Mr Wilson-Haffenden and Mr Curtis met with Mr Fuller on 23 October 2013 as he had been interstate the week previous. The evidence was that Nyrstar considered Mr Fuller’s response to the ‘show cause’ letter as suggesting where improvements could be made in Casting to increase production. Mr Wilson-Haffenden said “There was no recognition or acknowledgement that his behaviours were inappropriate and had caused other employees to be humiliated, embarrassed and in several instances, damaged.” 142 However Mr Wilson-Haffenden confirmed that the only reference he made about this behaviour, to the Applicants, was by stating in a letter “I have considered all the available information”.143

[119] In the interview with Mr Simmonds, Mr Fuller said he was sorry if anyone was bullied or harassed or intimidated by anything he said or did. He said he told Mr Simmonds that he did not intend that at all. 144

[120] Mr Wilson-Haffenden said that following the ‘show cause’ meetings with Mr Cannan and Mr Fuller, both he and Mr Curtis considered the Applicants’ responses, their lack of contrition, their service history, the 12 statements taken by Mr Farmer and Mr Simmonds findings. 145 Under cross-examination, Mr Wilson-Haffenden provided the following exchange relating to the ‘show cause’ letter and eventual dismissal of Mr Cannan:

[121] Mr Wilson-Haffenden confirmed that the only allegations on which he asked Mr Cannan and Mr Fuller to ‘show cause’ were those matters contained in the ‘show cause’ letters which included the findings in Mr Simmonds’ report. 147 He did not provide the Applicants with the 12 statements as he was concerned around the wellbeing and confidentiality of some of the people who gave those statements.148 He did not ask Mr Cannan about the information set out in those statements149 and he did not include in the ‘show cause’ letter any part of the general allegation investigated by Mr Simmons that involved information from the 12 statements.150

[122] Mr Wilson-Haffenden said he did not indicate in the ‘show cause’ letters that he was seeking for the Applicants to provide a response around contrition and that as no contrition had been expressed by either Mr Cannan or Mr Fuller, it was not appropriate to consider options other than dismissal. Mr Wilson-Haffenden confirmed in cross-examination that had Mr Fuller made a statement that he had not intended to bully or humiliate anyone in anything that he did, that statement would have been a material consideration. It was put to Mr Wilson Haffenden that Mr Fuller made such a statement to Mr Simmonds when he was interviewed. 151 Mr Wilson-Haffenden said that Mr Fuller never advised him of that statement.152

[123] Mr Wilson-Haffenden said he did not listen to the recordings of the interviews conducted by between Mr Simmonds and he did not investigate, prior to the dismissals, whether the matters referred to in the 12 statements were subject to contemporaneous management action. He said all factors were considered on reaching the decision to terminate Mr Cannan and Mr Fuller’s employment and that Nyrstar’s Code of Business Conduct had been sent to all Nyrstar departments for distribution.

[124] Mr Cannan described reading the 12 statements and feeling shattered, which had caused him to reflect on what had occurred in the workplace. He stated “To think, you know, that you may have had a part to do with someone that was thinking along them lines, I had no idea he ever felt that way… Again, yes absolutely no idea they felt that way.” 153

[125] It was Mr Wilson-Haffenden’s evidence that of the six employees investigated by Mr Simmonds, three were dismissed and three were transferred to other parts of the plant.

Management Action

[126] Mr Wells described D-panel’s behaviours over more than 10 years as negative, not constructive and disputing minor matters. He said it was clear when he returned to the Superintendent role in 2012, D-panel culture was the same as it had been in the early 2000s, that is, dysfunctional and opposed to management.  154 Of his time as D-panel Team Leader Mr Wells said “They had no understanding of what was acceptable and what was not acceptable. They were high maintenance.”155 He said “[Terry] Hinds approached me and said he couldn’t cope any longer with working on D panel. I decided to put Brian Paynter into the role as he had a very likable nature. After a period of time my observation was that he allowed the behaviours to go unreported. I had numerous discussions with Paynter in relation to this but it appeared that nothing was going to change”156 confirming that he was aware of the behaviours of D-panel during Mr T Hinds’ and Mr Paynter’s tenures as Team Leader.157

[127] Mr Wells said he and Mr Fraraccio had commenced a process of meeting with D-panel members individually to discuss their behaviours in January 2013, having good meetings with Mr Roberts and Mr Wilson, but that he then went on leave and did not know whether the process had continued. Mr Wells later changed his statement to “However, the process was derailed by Roberts and Wilson. Roberts became angry and demanded examples… Soon thereafter, a number of Operators on D-panel commenced complaints against Fraraccio.”  158 I find Mr Wells’ evidence on this point contradictory and unsatisfactory.

[128] Mr Wells confirmed he spoke to D-panel in pre-start meetings about their behaviour and negativity toward the company but that he never had reason to take any formal disciplinary action against Mr Cannan or Mr Fuller. He also confirmed that he never advised anyone else to take any action; 159 stating that it was the Team Leader’s responsibility to instigate disciplinary action; and that he had had discussions with them about dealing with the behaviour.

[129] Mr W Hinds, who last worked on D-panel in 2004 said when relief Team Leading he would refer serious matters to his Superintendent, who at that time was Mr Tyson. He said he never instigated disciplinary action against the Applicants and that if he had had any issues he would have referred them to the then Team Leader or Superintendent. He also said he documented and coached Mr Fuller for “abusing a contractor” 160 but provided no clear time as to when this coaching occurred.

[130] Mr Seabourne confirmed that Mr Cannan and Mr Fuller had always been courteous and pleasant to him, that they were individuals he would ‘have a chat with’, that personally he got along with them and had no difficulty raising matters with them.  161 He said if a matter was serious he would have referred it up the line to be dealt with by the Superintendent, Mr Wells, but that he never had any reason to refer either Mr Cannan or Mr Fuller for disciplinary action.

[131] The following exchange took place under cross-examination with Mr Seabourne:

[132] Mr Phillips evidence was that he never discussed with Mr Cannan or Mr Fuller any concerns he had with them not agreeing to make changes, ringing the help alarms, not trouble shooting or swearing in the workplace.

[133] Mr Mudge said he never had reason to take disciplinary action, or to refer an issue for disciplinary action, against Mr Cannan, Mr Fuller, or anyone else in his time with D-panel, which included all the matters detailed in his written statement. Relevantly, Mr Mudge said:

[134] Mr Schultz confirmed that he was ‘old school’, sorting out the issues on the floor rather than taking it further; that he never instigated disciplinary action against either of the Applicants; that he had dealings with Mr Cannan and Mr Fuller when operational mistakes had been made; and that in the six years in total he had worked with D-panel, he was unaware of any disciplinary action against the Applicants. He said he considered bullying was a serious matter which would cause him to take action in the workplace. Mr Schultz’s subsequent evidence about whether he referred allegations of bullying by Mr Cannan or Mr Fuller to his Superintendent is less than satisfactory, having contradicted himself on a number of occasions.

[135] Mr Schultz said it was unpleasant and he was unhappy working on D-panel. Specifically he said “My Superintendent, Craig Wells, asked me to move off D Panel in late 2012. He told me [he] didn’t want to see me fail and he was concerned for me. I stood down as Team Leader so I could become a Process Leader on A Panel.” 164

[136] It was Mr Moore’s evidence that on starting with D-panel in 2000 there was an “us and them” 165 mentality concerning the Team Leader and Process Co-ordinator. He said some Operators on D-panel, including Mr Cannan and Mr Fuller, were difficult to manage, antagonistic, negative and raised safety concerns as a way to resist change. Mr Moore, in his testimony, explained antagonistic and negative as Mr Fuller’s refusal to accept the changes management wanted to make.

[137] Mr Moore said his work days were full of conflict and negativity which undermined his confidence and he dreaded going to work. Under cross-examination, Mr Moore confirmed the last full time occasion he had worked personally in a managerial role with D-panel was in about 2000. Mr Moore said “being on the Leadership Team on D Panel was referred to as “the tour of duty” amongst Management in Casting”. 166 Mr Moore said he had noticed a change in Mr Fraraccio after he became Team Leader on D-panel.

[138] Mr Moore said when he was Process Leader on D-panel he did not have any difficulty raising complaints, but that nothing occurred that warranted him taking any formal action against Mr Cannan or Mr Fuller. 167 He said he never raised any performance management issues with Mr Cannan or Mr Fuller in relation to D-panel ringing alarms and not trouble-shooting and was not able to say which Operators had rung the help alarms at that time, although he had spoken to the then Team Leader, Mr T Hinds about the matter. Mr T Hinds confirmed that, if necessary, he would have instituted disciplinary action against an employee and that he never had reason to discipline either Mr Cannan or Mr Fuller.168

[139] It was Mr Rainbird’s evidence that he had never witnessed or heard of any bullying behaviour by D-panel members. 169 He said D-panel was referred to as “the burn out crew” and that senior managers had expressed concerns about running communication sessions with D-panel.170 In his first statement to Mr Farmer, Mr Rainbird stated “Craig Wells addressed Fraraccio, myself and others within management in early 2013 and said we must be careful to treat D Panel with respect.”171 He said he or the company had never raised the issues of crib breaks, rotations, use of the sky walk bridge or the ringing of help alarms as problems with any members of D-panel.

[140] Under cross-examination the following exchange took place with Mr Rainbird:

[141] It was Mr Wilson-Haffenden’s evidence that during Mr Fraraccio’s term as Team Leader there was no formal counselling undertaken of Mr Cannan and Mr Fuller as none such were raised with the Human Resource Department but that he had caused training to be conducted by the Anti-Discrimination Commission at the Risdon site and that Mr Cannan and Mr Fuller undertook this training on 22 October 2012.

Fraraccio’s conduct/Miscellaneous

[142] Mr Reeves said that in late April and early May 2013 he met with D-panel about concerns over Mr Fraraccio’s behaviour. He said D-panel employees told him Mr Fraraccio consistently told them “You’ve had it too good for too long. You have too long for crib. You work something like eight and three-quarter hours a shift, not 12 hours.” 173 He said through Mr Fraraccio raising crib times at every panel and constantly raising the issue of rotation of jobs, D-panel were being isolated. Mr Reeves said that on the basis of what he was told, he considered Mr Fraraccio’s treatment was unreasonable, in line with an Anti-Discrimination Commission’s pamphlet distributed in the workplace. He advised D-panel to raise a formal complaint about the behaviour and said that shortly after he raised the bullying matter with Ms Victoria Newton.

[143] Mr Cannan said Mr Fraraccio regularly commented that they (D-panel) had had it too good for too long. Mr Fraraccio denied being aggressive with D-panel members when dealing with the issues of crib breaks and rotations.

[144] Mr Fuller said he was subjected to Mr Fraraccio continually bringing up issues with him such as reducing crib breaks, implying that excessive smoke was occurring due to the dampers being left open, pushing for acceptance of the new SO2 safety procedure, pressing him to take a transfer or an exit package, and that Mr Fraraccio was generally checking up on him all the time. He said he was “coming to work, panel after panel, wondering what scenario was going to be brought up next where I would be defending our conditions and our workers’ rights”, 174 and that it was affecting him personally both at work and at home.

[145] Mr Cannan attended the meeting between Mr Fuller and Mr Fraraccio on 17 April 2013 and said that Mr Fraraccio offered Mr Fuller an “exit package” on three occasions, describing Mr Fraraccio’s behaviour as harassment due to his body language and menacing speech, which Mr Cannan said made him feel uneasy. He said Mr Fraraccio told Mr Fuller that his behaviour needed to change or he didn’t have a future at Nyrstar.

[146] Mr Fraraccio denied trying to harass Mr Fuller into taking an exit package during that meeting saying he could not recall how many times he made the offer of the exit package. 175

[147] Mr Fraraccio said he was not aware that Nyrstar’s disciplinary policy was also a performance improvement policy, but recalled looking at it at some stage and was aware of the formal warning document attached to that policy. He said the file notes he kept on Mr Fuller were to assist him when completing the performance review documentation, confirming that he did not divulge to Mr Fuller that he was keeping these notes or that he had to. 176 Mr Fraraccio said he tried to build working relationships and deal with issues as they arose, however he found dealing with Mr Fuller, Mr Cannan and other D-panel members to be “constantly confrontational and draining”.177 He said he was aware that Mr Fuller was the union delegate.

Audio of interviews conducted by Simmonds

[148] I have availed myself of the audio recordings of the interviews conducted between the Applicants and Mr Simmonds. I was able to confirm the transcript 178 provided of the exchange between Mr Fuller and Mr Simmonds which indicated contrition on the part of Mr Fuller. I was also able to ascertain that whilst the interviews did, at times, become heated, I am of the view that the Applicants were afforded an opportunity to respond to the matters put to them.

Remedy

[149] Mr Cannan is married with three children with the two youngest children, aged 12 and 17 living with and being dependent on him. He is 50 years of age and is the main income earner in his family. In early February 2014 Mr Cannan obtained employment at a car wash and is paid $20 per hour, working approximately 24 hours a week guaranteed and that he has been unsuccessful to date in finding other employment. 179

[150] Mr Fuller is married with a son and daughter, aged 15 and 17 who live with him. He is the main income earner in his family. Mr Fuller obtained casual employment with an orchard and earns approximately $650.00 net for a full week’s work. From dismissal to the end of April 2014 Mr Fuller had earned approximately $8,700 in that employment. He made application with a Nyrstar contractor, VMAC, but received no work through that application, 180 nor has he been successful in finding other employment to date.

[151] Messrs Fraraccio, Rainbird and Wells all said that D-panel was running better since the Applicants’ dismissals.

Submissions

The Applicants’ submissions

[152] Mr Reitano for the Applicants submitted that on Mr Fraraccio becoming Team Leader for D-panel, issues arose in respect of crib breaks, with Mr Fraraccio having a differing view to Mr Cannan, Mr Fuller and other employees on D-panel, as to the time available for crib breaks, 181 and that despite these opposing views and Mr Fuller placing the matter into dispute, the dispute was never passed up the line by Mr Fraraccio and thus never determined. Also Mr Fraraccio wished to change the rotational way in which D-panel worked, preferring to have operators ‘specialise’ in their tasks. This was resisted by the Union and members of D-panel and became a source of controversy and irritation.

[153] It was submitted that the SO2 (odourless and transparent gas) incident resulted in a safety dispute due to Mr Cannan and others considering that Mr Fraraccio’s direction that they work in the area with personal SO2 alarms affixed to them was not safe, that the concerns of Mr Cannan, Mr Fuller and other D-panel employees were legitimate concerns, entitled to be pursued and resolved, and were not attempts to undermine Mr Fraraccio. 182

[154] Mr Reitano submitted that the meeting held on 17 April 2013 between Mr Fraraccio and Mr Fuller, with Mr Cannan present, was a significant event in this matter; that Mr Cannan was concerned about Mr Fraraccio’s demeanour toward Mr Fuller, when Mr Fraraccio asked Mr Fuller several times whether he wanted an exit package. It was this event that instigated Mr Fuller’s complaint of bullying against Mr Fraraccio.

[155] Mr Reitano submitted that the Nyrstar Code of Business Conduct requires employees to be open and honest and to act with respect, dignity, fairness and courtesy. It was said that Nyrstar’s conduct towards Mr Cannan and Mr Fuller does not meet these requirements as their managers never addressed any behavioural concerns in an open and honest manner.

[156] Mr Reitano stated that the treatment afforded to the Applicants whilst they were being investigated for bullying was very different to the treatment afforded to Mr Fraraccio when he was being investigated for the same thing; with Mr Fraraccio being allowed to stay at work and was given copies of all statements made against him, whilst Mr Cannan and Mr Fuller were suspended, did not receive copies of statements and weren’t even told about statements and allegations that had been made against them.

[157] Mr Reitano stated that Nyrstar failed to act on its Performance Improvement and Disciplinary Policy to address any inappropriate behaviour. It was said that the policy applies to everyone within the workplace and that at paragraph 5 of the policy provides “Employees will be provided with an opportunity for improvement to meet the required performance and behavioural standards and, where practicable, be provided with assistance.” Mr Reitano stated that Mr Cannan and Mr Fuller received no opportunity to improve behavioural standards and there was no offer of assistance. Further the policy calls for supervisors and managers to be responsible for maintaining appropriate behaviour and that action should be taken in a timely manner, none of which, it is asserted, was followed by management.

[158] It was said the evidence substantiated that neither Mr Fraraccio nor any of the former D-panel supervisors instigated any form of formal counselling of Mr Cannan or Mr Fuller. Mr Reitano stated that the disciplinary policy required that formal counselling advise an employee that should their behaviour not change, it could lead to termination of employment, and that the Applicants were never told this.

[159] Mr Reitano submitted that it is necessary to consider the position of Mr Cannan and Mr Fuller separately, but that there is a marked similarity with their circumstances. He stated both were longstanding employees of more than 18 years of relatively unblemished service and were dismissed for almost identical circumstances and reasons.

[160] In relation to Mr Fuller, it was submitted that other than an incident in 2002 and another in 2006 regarding behaviour toward a contractor, Mr Fuller had not been disciplined, counselled or warned about his conduct or performance at work in relation to the issues giving rise to his dismissal or any other matter. It was said that Mr Fuller was never disciplined or warned that his employment might be terminated because of the matters that ultimately concluded his employment on 29 October 2013; that he was regarded, over a sustained period, as a good employee who met or exceeded objectives; that his performance continued in this vain under an appraisal conducted by Mr Fraraccio, dated 15 July 2013; and that due to objective documentary evidence, Mr Fuller’s good performance should be considered uncontroversial.

[161] In respect of Mr Cannan, it was submitted that other than being ‘coached’ for his use of sick leave approximately 10 years ago, Mr Cannon had never been the subject of any formal disciplinary action; always being regarded as a satisfactory employee.

[162] It was said that Mr Cannan was never disciplined or warned that his employment might be terminated due to the matters that gave rise to his dismissal. Mr Reitano said that Mr Cannan’s evidence provided that at no stage was it ever indicated to him that his performance or conduct was unsatisfactory and this was not challenged in any material way by Nyrstar. It was submitted that Mr Fraraccio, in his performance appraisal of Mr Cannan, considered Mr Cannan was an employee who achieved all objectives and satisfied all criteria.

Unfairness

[163] Mr Reitano stated that, objectively viewed, Mr Fuller and Mr Cannan were not guilty of serious or other misconduct that would give rise to a valid reason for termination of employment. It was said that if Mr Fuller and Mr Cannan did anything wrong, they were never disciplined, counselled or warned about the matters and that Nyrstar’s failure to consider reasonable alternatives to dismissal and the personal circumstances of the Applicants rendered the dismissals unfair and harsh pursuant to s.387(h) of the Act.

[164] Mr Reitano said it was significant that Nyrstar, relied upon matters that did not form the reasons for dismissal at the time it dismissed Mr Cannan and then Mr Fuller. It is submitted that Nyrstar relied on allegations that were not proven by Nyrstar and were never contemplated or raised as part of the dismissal process, thereby rendering the ‘show cause’ and termination process procedurally unfair.

[165] The historic matters relied on by Nyrstar to support the dismissals had been within the knowledge of Nyrstar managers for a very long time and it was said this gave rise to the principles of condonation and waiver. Due to the matters complained of by Nyrstar stretching back over months and years, the alleged behaviour in the context of the workplace was either tolerated or there was complete acceptance that the alleged behaviour was acceptable, referring to the previous case of B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191 at [42].

[166] Mr Reitano submitted that both Mr Cannan and Mr Fuller were frank and forthright witnesses, who, when cross-examined, made appropriate and proper concessions about what had occurred in the workplace which included admissions such as “I was pissed off, yes, I was” 183 therefore, where conflict of evidence arises, their evidence should be preferred. He cautioned the acceptance of witness evidence called by Nyrstar stating “it seeks to explain away objective facts that support Mr Fuller and Mr Cannan’s case in a way which is disingenuous and, in some cases incredible.”184 In this regard the Applicants sought to rely on the performance appraisals conducted by Nyrstar management; Mr Fraraccio’s unsatisfactory explanation as to the conflict between his evidence and the documented performance appraisals; Mr Wilson-Haffenden’s evidence that Mr Fuller swore at a contractor when that was never proven, his failure to appreciate Mr Fuller’s remorse when interviewed by Mr Simmonds, and the matters of which he took account in determining his reasons for the dismissals and the reasons he gave to the Applicants.185

[167] It was said that Mr Fraraccio’s failure to raise any of the matters now in his statements until after the bullying complaint was raised against him, including secret file notes he kept on employees was not capable of rational explanation; and that the unverified notes were a serious matter and should not be treated by the Commission as evidence that is credible, particularly due to Mr Fraraccio’s failure to have them verified.

[168] Mr Reitano stated that all of the evidence presented by Nyrstar failed to acknowledge the representative role Mr Fuller and Mr Cannan both played within the workplace.

Reasons for dismissal

[169] Mr Reitano submitted that both termination letters were in substantially the same terms, did not provide any great detail of the alleged ‘bullying and harassment’ misconduct, or what the ‘inappropriate conduct’ was. He said it may safely be presumed that the alleged serious misconduct pertained to matters referred to in the termination letters and was the only things the Applicants were invited to ‘show cause’ about, and involved the findings made by Mr Simmonds.

[170] It was submitted the allegations were first raised against the Applicants on 18 September 2013 and had not been the subject of any earlier complaint. These were different to the allegations that were made on 13 August 2013, in that they alleged conduct against more people than Mr Fraraccio.

[171] Importantly, it was said that the termination letters also stated what appeared to be ‘further reasons’ for dismissal which included, but were not limited to, a lack of acknowledgement, accountability and a failure to display remorse for the behaviours which formed part of the reasons for dismissal as confirmed by Mr Wilson-Haffenden’s evidence. Mr Reitano said the Applicants were not permitted to be heard on these matters, which breached the obligations in s.387(c) of the Act.

[172] Also relevant, Mr Reitano said, was that Mr Wilson-Haffenden relied on other matters for the basis of the dismissals which were not put to Mr Fuller and Mr Cannan, and that it was not entirely clear from his evidence what those matters were. Mr Retaino said this included information contained in the 12 statements which were not found proven by Mr Simmonds. It was said that the Commission should reject the suggestion that Mr Cannan and Mr Fuller were provided with information from the 12 statements through the general reference in the termination letter of ‘all other information’. Mr Reitano said these were also matters on which the Applicants had no opportunity to be heard and is significant given Mr Cannan’s evidence of contrition. 186

[173] Mr Reitano submitted that even if the findings of Mr Simmonds were accepted, it could not be found that those findings, in context and objectively viewed, were so serious as to warrant dismissal and that the only relevant allegations in this matter were those found proven against Mr Cannan and Mr Fuller in the second investigation.

The allegations against Mr Fuller

[174] It was submitted that there were seven findings against Mr Fuller on which Nyrstar relied in dismissing him. These were:

• Third, that on 5 February 2013 Mr Fuller was engaged in a dispute with a contractor, Mr Dodge and used the word ‘fuck’ in conversation. There was never a finding that Mr Fuller swore at Mr Dodge and Mr Fuller did not deny using the word and offered to apologise to Mr Dodge for expressing his frustration.

• Fourth, that on 10 April 2013 Mr Fuller said in a pre-start meeting ‘I will see you in the fucking Commission. I will have the dispute paper work with you on Monday’ on the issue of crib times. In the context of the shop floor environment it was said the use of the expletive was hardly unknown of, unheard of, or offensive and that Mr Fraraccio failed to follow the disputes procedure to have the matter dealt with. Objectively viewed, the matter was not treated as serious at the time and the use of the expletive could be said to be condoned.

  • Fifth, the action of Mr Fuller putting the crib break matter into dispute was bullying and inappropriate. Mr Reitano submitted the matter was ‘live’, of concern to many employees in D-panel and it was appropriate for the matter to be placed into dispute and resolved via the usual procedure. It was said this was not misconduct.


  • Sixth, it was alleged Mr Fuller said ‘what’s up your arse’ when questioned by Mr Phillips about being in the showers early. Mr Fuller did not deny saying those words and the matter was not raised as a disciplinary matter at the time; and that Mr Phillips’ failure to complain about the matter at the time illustrates the importance Mr Phillips placed on the matter.


  • Seventh, an accusation involving Mr Fuller raising a production-related matter with his Team Leader despite having been advised months earlier that his Team Leader was not to be involved in production-related matters. It is submitted that the allegation is specious in that the matter was not the subject of any disciplinary action, or any other action, at the time it occurred.


    • [175] Other allegations were made against Mr Fuller, which Nyrstar did not rely upon in the dismissal. Mr Reitano said it was important that Nyrstar confined itself (in the ‘show cause’ and termination letters), as its reasons for dismissal, to the allegations found sustained by the second investigation. He said that none of the general allegations made against Mr Fuller and Mr Cannan, were found by Mr Simmonds to be substantiated.

    The allegations against Mr Cannan

    [176] It was submitted that there were five findings against Mr Cannan on which Nyrstar relied in dismissing him. These were:

    [177] Mr Reitano said that the evidence in response to the allegations in Mr Cannan’s written statement is completely consistent with his evidence given under cross-examination. Further, it was submitted that when Mr Cannan was confronted with the 12 statements, he said he did not intend to affect anyone in the way that was described in those statements, even more so in relation to one of the statements, and that he was denied the opportunity to address these matters at the ‘show cause’ meeting due to the statements being undisclosed.

    In general

    [178] Of all of these matters, it was submitted, neither Mr Cannan nor Mr Fuller were ever warned that any repetition of their conduct would lead to disciplinary action or dismissal. There appeared a pattern of failure to deal with matters at the time they arose and that Nyrstar had failed to prove misconduct such that would warrant dismissal. Mr Reitano said the investigator’s approach of giving primacy to undisclosed file notes was in error; that the notes were not tested and amount to nothing more than an unverified view of one party; and that for the most part were the subject of a direct denial by Mr Cannan or Mr Fuller. Further, Mr Reitano said the failure of Mr Fraraccio or Mr Phillips to deal with issues at the time they occurred should affect the creditworthiness of those individuals’ allegations.

    [179] Mr Reitano submitted that the investigation took a misconceived view of the right of employees to invoke the disputes procedure from the workplace agreement and that Mr Fuller should not have been criticized for invoking those rights. Nor did the investigator, it was said, explain how he found the behaviour to be a breach of policy, or inappropriate such as to amount to bullying.

    [180] The Applicants submitted if there was a serious concern about their behaviour, that should have been, as a matter of fairness, raised and dealt with by the appropriate disciplinary policy. It was put by Mr Reitano that:

    [181] Mr Reitano made submissions addressing each of the criteria contained in s.387 of the Act and submitted that reinstatement (or re-employment on terms no less favourable) was appropriate, with continuity of employment and payment of any remuneration lost due to their dismissal. As to the basis of reinstatement, Mr Reitano sought to rely on Callahan v Graphic Impressions [2014] FWC 437.

    Nyrstar’s Submissions

    [182] Ms Zeitz submitted that following the complaint of bullying against Mr Fraraccio to Ms Newton in early May 2013, Nyrstar had appointed an investigator, Mr Farmer, who was proposed by the CFMEU. It was submitted that in that meeting, two incidents were identified, neither of which involved Mr Cannan. It was said by Ms Zeitz that the complaint process initiated by Mr Reeves lifted the lid on bullying behaviour for successive members of D-panel’s management team. 188

    [183] It was said that after the first investigation determined that the actions of Mr Fraraccio were reasonable, information had become available and Nyrstar was concerned about possible bullying by D-panel members which led to the suspension of the six employees. Ms Zeitz said no decision had been made at that point, and Mr Farmer was still completing the 12 statements.

    [184] Ms Zeitz said that previous members of D-panel management described, in the 12 statements, behaviour that was “unpleasant, abusive, insulting, critical, undermining, persistent demands, obstructive, mocking, demeaning, belittling, humiliating,” 189 and that Nyrstar believed there was a case to answer because that conduct was identified as adversely impacting some employees.

    [185] Ms Zeitz submitted that at all times the CFMEU were representatives of the Applicants and that they were alive to the fact there were a range of allegations made against Mr Cannan and Mr Fuller, from the correspondence of 18 September 2013. This correspondence followed the previous letters to Mr Cannan and Mr Fuller of 13 and 30 August 2013 which also provided allegations. Ms Zeitz said these allegations said that Mr Cannan and Mr Fuller had been involved in an ongoing pattern of behaviour or course of conduct which intended to have the effect, of humiliating, undermining and embarrassing Team Leaders of D-panel and others.

    [186] Ms Zeitz said that the evidence provided by the former Team Leaders and supervisors of D-panel in their statements to Mr Farmer, as it related to the personal impact of the conduct complained of, was unchallenged.

    [187] It was submitted that Mr Wilson-Haffenden’s evidence provided that he had discussions with Mr Washington of the CFMEU about the ‘other matters’ and that there is no obligation on an employer to provide copies of statements from an investigation process, particularly so when the investigation involves bullying.

    [188] Ms Zeitz said Nyrstar were looking for some acknowledgement from Mr Cannan and Mr Fuller during their ‘show cause’ meetings of the impact of their behaviour to health and safety. 190

    [189] Nyrstar submitted that the Applicants did not deny the behaviour described by witnesses, nor did they suggest they had not been spoken to about this. On this point, Nyrstar sought to rely on the relevance of the lack of acknowledgement in Mary Lou Anning v Virgin Australia Airlines [2012] FWA 8414. It was submitted that Mr Wilson-Haffenden’s notes of the ‘show cause’ meeting 191 indicated that D-panel were full of hate, not anger. Ms Zeitz said this was consistent with an unhealthy workplace; the culture impacted individuals; and that the Applicants had no interest in considering their own behaviour and its impact.

    [190] In relation to condonation, Ms Zeitz indicated that whilst Nyrstar were aware of the behaviours of the Applicants over a period of time, there was a culture within the workplace of management trying to work with individuals on the floor to deal with issues and further, that without the Applicants’ acceptance of their conduct, Nyrstar had no other option but to dismiss them. Ms Zeitz conceded that the Applicants were not given a formal opportunity to moderate their conduct until this process, but during the process they had an opportunity to “wake up”, 192 however that opportunity was not taken.

    [191] It was submitted that whilst it might be said that Mr Cannan and Mr Fuller did not know their behaviour was inappropriate, there are such things as social and proper standards of behaviour. It was said that the Nyrstar Way required that behaviour was courteous and respectful.

    [192] Of the investigation by Mr Simmonds, Ms Zeitz said:

    [193] Ms Zeitz said that bullying does not require a particular intent behind it as the test is the objective observer. As such, she said, Nyrstar were correct in making its own finding of bullying, rather than accepting the finding in Mr Simmonds’ report.

    [194] It was submitted by Ms Zeitz that the allegation involving swearing and the contractor, Mr Dodge, will have to be considered by the FWC. She acknowledged that Mr Fuller was not given a formal warning about the matter, but he was spoken to by Mr Fraraccio and told he needed to modify his behaviour in early February 2013. Ms Zeitz said there was a further meeting, in April 2013 when Mr Fraraccio again told Mr Fuller he would need to change his behaviour.

    [195] Ms Zeitz said that the allegations of bullying made against Mr Fraraccio were seriously investigated and nothing was identified that amounted to bullying behaviour on the part of Mr Fraraccio.   She said on 8 August 2013, the process of Mr Farmer gathering the 12 statements commenced.

    [196] Nyrstar referred to Mr Fraraccio’s evidence which provided that with the benefit of hindsight he should have started disciplinary processes earlier and that there was nothing sinister in Mr Fraraccio keeping file notes on the Applicants for coaching purposes. Ms Zeitz said whilst there was no formal disciplinary process, Mr Fraraccio was attempting to get employees to ‘step up’ and he did not want to mark them down in their performance reviews.

    [197] It was said that Mr Wilson-Haffenden was entitled to take the 12 statements into account when making the decision to dismiss Mr Cannan and Mr Fuller, as the behaviours were consistent over the history.

    [198] Ms Zeitz submitted that one witness, Mr Seaward gave evidence that he could see Mr Fraraccio changing and that perhaps the degree of damage that was being done was not filtering up to levels of the organisation where it could have been dealt with earlier. She said that Team Leaders were on the floor trying to meet the expectations of management, with management’s position being that Team Leaders would ask for help if they needed it.

    [199] Nyrstar submitted that D-panel were a coherent group of employees who had worked together for a long time and contained strong personalities. Further, that the approach taken by Mr Cannan and Mr Fuller amounted to bullying, that Mr Cannan had no respect for Mr Fraraccio and that Mr Cannan’s acknowledgement, that he treated Mr Fraraccio no differently to his other Team Leaders, was telling.

    [200] Further, Ms Zeitz referred to the incident between Mr King and Mr Cannan, indicating that Mr Cannan never apologised to Mr King and when he did speak to him, his explanation was patronising. Mr Schultz had spoken to Mr Cannan about his negativity. Of Mr Cannan’s contrition expressed in evidence, Ms Zeitz said this was only after he had been availed of the contents of the 12 statements, but that he still had not apologised.

    [201] In relation to Mr Fuller, Nyrstar submitted the raising of safety and workplace rights is encouraged, however the way in which Mr Fuller did so was a problem.

    [202] Ms Zeitz submitted that Mr Terry’s evidence was that D-panel was an unfriendly, negative environment, describing the way Mr Cannan and Mr Fuller would interact. Mr Terry said he didn’t like going to D-panel, with Mr Mudge having similar experiences.

    [203] It was submitted that Mr Schultz had tried to deal with matters ‘on the floor’ with Mr Cannan and Mr Fuller; that Mr Moore’s unchallenged evidence described working on D-panel as death by a thousand paper cuts, a constant grind and a constant wall of negativity; that Ms Williams was shocked when attending a pre-start meeting and described the demeanour of those meetings, contrary to the evidence given by the Applicants.

    [204] It was submitted that Mr Seaward described working in D-panel as a wearing down process, with it being a difficult and hostile workplace at times. Ms Zeitz referred to Mr Rainbird’s evidence, that they took the approach of wanting to keep batting for the guys and trying to get them across the line.

    [205] Nyrstar submitted that the Commission should find, consistent with the findings of Mr Simmonds with respect to some of the supervisors, there was a history of bullying behaviour, with Messrs Fraraccio, King and Phillips. Further Ms Zeitz said that Nyrstar was entitled to rely on Mr Simmonds’ finding with respect to Mr McCullum by its choice to accept the account of Mr Fraraccio.

    [206] It was submitted the allegations were put to the Applicants and meetings took place to allow them an opportunity to ‘show cause’ why their employment should not be terminated and that there was ample opportunity for the Applicants and their representatives to seek further particulars of any other materials. To the extent that non-provision of other materials was seen as a flaw in the process, Ms Zeitz submitted that nothing in the proceedings had been identified that would warrant a reinstatement or re-employment order.

    [207] Ms Zeitz submitted that whilst there might have been missteps within the process, when taken as a whole, procedural fairness had been afforded. However, with the benefits of hindsight it was said Nyrstar could have been more proactive about the 12 statements. Ms Zeitz said without the contrition sought by Nyrstar, there was clearly a valid reason for termination as the Applicants were aware of and understood the obligations and behaviour applying to employees, 194 there had been a destruction of the trust within the employment relationship and Nyrstar had no option but to dismiss Mr Cannan and Mr Fuller. It was said the decision reached was defensible and justified on an objective analysis of the facts and that reinstatement or re-employment was not warranted and that the FWC should take into account the damage inflicted on employment relationships.

    [208] Ms Zeitz said that the Applicants’ ages and long service, is only a factor in determining harshness, however this is not an overriding consideration. Nyrstar sought to rely on Hepburn v Department of Justice (1998) 81 IR 32, as to the role of the FWC in determining a valid reason and Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, Khan v Cuno Pacific Pty Ltd (2005) 146 IR 441 and State of New South Wales v Manall [2005] NSWCA 367 as to the basis of a valid reason to dismiss the Applicants.

    [209] In relation to remedy Ms Zeitz made a number of submissions should I make findings of no valid reason or that the terminations were harsh, unjust or unreasonable.

    [210] On the basis of unchallenged evidence from Nyrstar’s witnesses, it was submitted that the applications should be dismissed.

    In-reply Submissions for the Applicants

    [211] Mr Reitano said the ‘show cause’ letters are relevant to the question of procedural fairness and that any suggestion that additional information or findings not made out by Mr Simmonds appropriately formed any basis for termination cannot be countenanced. He reasoned that if Nyrstar intended to rely on allegations not proven by Mr Simmonds, then it had an obligation to advise Mr Cannan and Mr Fuller of that fact in the ‘show cause’ letters. He also stated that the letters’ failure to advise the Applicants on the issue of contrition added to the unfairness. He said if the dismissals involved anything beyond the contents of the ‘show cause’ letters, the processes were procedurally unfair, referencing clause 4 of Nyrstar’s Performance Improvement & Disciplinary Policy.

    [212] Mr Reitano said in the second investigation, five allegations were made out against Mr Fuller and five were made out against Mr Cannan. With Mr Cannan, three of the allegations relate to Mr Fraraccio, and one relates to each Mr King and Mr Phillips, with none of those allegations relating to anything he did at a pre-start meeting. Nothing there was said to indicate inappropriate asking of questions by Mr Cannan. In relation to Mr Fuller, two allegations relate to Mr Fraraccio with the remaining three allegations relating to Mr McCullum, Mr Dodge and Mr Phillips. One of the allegations found, relating to Mr Fraraccio, did involve Mr Fuller and a pre-start meeting of 10 April 2013. However, Mr Reitano submitted, that allegation 3 in the second investigation process was not made out against Mr Fuller and in any event there is nothing in the documentation leading up to or included in the dismissals that would indicate any allegations involving repeated conduct at pre-start meetings.

    [213] As to the evidence of other Team Leaders, Mr Reitano said if some people did not like working with D-panel, it was not appropriate to sheet home the blame for that to Mr Cannan and Mr Fuller, that there must be evidence of it and, on the balance of probability, it could not be established.

    [214] Furthermore that in order for bullying to be proven, the behaviour or conduct must be unreasonable; something which he said had been overlooked. To this end, Mr Reitano said witness after witness gave evidence that they never asked for the behaviour to stop, they never took any action about it because they did not consider it serious or important enough.

    [215] Mr Reitano stated that the allegations of bullying fail at the threshold because all of the objective indications do not prove unreasonableness.

    [216] It was also said that the evidence of negativity was explained by Nyrstar’s witnesses as the Applicants indicating they didn’t like being at work. He said whilst it might have been said using more florid language, it was nothing less than saying they preferred their days off. Moreover, if the behaviour was unreasonable, they were never told they should not say these words or do certain things and they were never counselled or warned.

    [217] Relevantly, Mr Reitano said it was Mr Rainbird’s evidence that provided they did not want to gag the Applicants or stop them raising their concerns, as directed by the General Manager some years ago. He also said no store should be placed in the notes of Mr Wilson-Haffenden about D-panel being full of hate, as nothing indicates that Mr Cannan or Mr Fuller were full of hate and that matter was not put to either of them in cross-examination.

    [218] As to Mr Fraraccio’s file notes, Mr Reitano said they had never been verified and that this is the reason why Nyrstar’s disciplinary policy provided that an employee signs the note so there can be no dispute about the content.

    [219] It was said that whilst Nyrstar wished to rely on Mr Cannan and Mr Fuller not annunciating they were prepared to change, during cross-examination, that question was never put to them. He said the contrition the company was seeking presumed an acceptance of the allegations in the forms that the company made them. Mr Cannan’s and Mr Fuller’s responses were that their behaviour wasn’t as the allegations had it. This was despite, it was said, the words of contrition spoken by Mr Fuller to Mr Simmonds during the second interview process and that the intention of the Applicants was relevant.

    Legislation

    [220] These unfair dismissal applications were made pursuant to s.394 of the Act. Sections 385 and 387 are relevant in determining whether the dismissals were harsh, unjust or unreasonable (and therefore unfair). These sections of the Act set out as follows:

    Consideration

    [221] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:

    [222] For the purposes of these matters, sub-section (a) is established and sub-sections (c) and (d) are not relevant. In determining sub-section (b) as to whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the criteria set out in s.387.

    Valid Reason

    [223] In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Northrop J found (at 373) that a valid reason is one that is “sound, defensible or well founded”. Northrop J went on to say that “…the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business”. Such a concept embodies the element of fairness in the sense that a valid reason must be defensible and well founded.

    [224] In Australian Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1, albeit under the Workplace Relations Act 1996, a Full Bench of the Commission relevantly concluded at page 14 that:

    [225] Accordingly, in considering whether there was a valid reason for dismissal based on the misconduct of an employee, the Commission must firstly determine for itself on balance that the conduct occurred and then determine whether or not that misconduct constituted a valid reason for dismissal. In these matters I have had regard for the information available at the time of the dismissals and, separately, the evidence put before me.

    s.387 (a) Was there a valid reason

    [226] The Applicants advanced there was no valid reason for their dismissals as the reasons cannot be proved and even if they were, do not amount to the seriousness that would warrant dismissal, particularly in view of any management inaction and no fair opportunity for either of them to deal with any shortcomings. Neither Mr Cannon, nor Mr Fuller was guilty of any deliberate or knowing wrongdoing. If the behaviour was able to form a valid basis for dismissal, then the possibility of dismissal would have necessarily been articulated earlier as required by Nyrstar’s disciplinary policy.

    [227] The findings of Mr Simmonds are, in my view, central to establishing whether there was a valid reason for termination. Nyrstar submitted that the Commission should find with respect to some of the Team Leaders, and consistent with the findings of Mr Simmonds, 195 that there was a history of bullying behaviour with Messrs Fraraccio, King and Phillips. Further Ms Zeitz said that Nyrstar was entitled to rely on Mr Simmonds’ finding with respect to Mr McCullum by its choice to accept the account of Mr Fraraccio.

    [228] I firstly deal with the issue of the file notes kept by Mr Fraraccio. I accept the evidence and submissions of Nyrstar that the file notes were kept for coaching purposes by Mr Fraraccio and that he had no obligation to disclose them. However, for the purposes of relying on them as evidence of wrongdoing, I have placed them no higher than Mr Fraraccio’s oral evidence, due to their uncorroborated nature.

    [229] I accept Nyrstar’s argument that bullying does not require a particular intent behind it. The test for bullying is an objective one and the definition for being bullied at work has been established under the new Anti-bullying jurisdiction of the FWC. 196 As such, it was appropriate for Nyrstar to consider the findings of Mr Simmonds in error. This however raises concerns of a procedural nature, in that the substituted findings were not put to the Applicants. I will deal with this matter when considering s.387(c).

    Findings against Mr Fuller

    [230] I now deal with the findings relating to Mr Fuller and Mr McCullum. Mr Fuller denied the allegation of bullying Mr McCullum and thereby undermining Mr Fraraccio’s authority as Team Leader, but admitted to having a conversation with Mr McCullum about rotations. Mr Fraraccio’s evidence was that he viewed Mr Fuller in a conversation with Mr McCullum and said he heard words that related to the rotation of jobs. Mr Rose, who was said to have witnessed the conversation between Mr Fuller and Mr McCullum could recall the incident but none of the specifics and could not support Mr Fraraccio’s version of events. Mr McCullum gave a statement to Mr Simmonds and said he was not bullied by Mr Fuller. In light of the evidence before me I find it was an error for Mr Simmonds to have found this allegation made out and for Nyrstar to have relied on it. The allegation of bullying Mr McCullum and of undermining Mr Fraraccio’s authority that was made against Mr Fuller is, I conclude, without basis.

    [231] On the evidence before me, much of which was provided by Nyrstar’s own witnesses, I am satisfied that the raising of workplace disputes by Mr Fuller was in his capacity as union delegate and were raised over concerns that were genuinely held. Whilst it may be that D-panel raised more disputes than other panels in Casting that in itself does not denote misconduct and was done in accordance with the dispute settlement procedures contained in the EBA. To the extent that Mr Simmonds found the raising of disputes to amount to misconduct of bullying, he provided no reasons for this in his report and I am of the view his findings were in error.

    [232] In relation to the findings made against Mr Fuller on the use of swearing involving the contractor Mr Dodge and use of inappropriate language with Mr Phillips, neither of these matters could be said to be bullying as they are one off incidents and do not amount to repeated behaviour against those individuals. The incident involving Mr Fuller suggesting that Mr Fraraccio could weigh product on B-scales does, in my opinion, show a lack of understanding as to Mr Fraraccio’s role and displayed a lack of respect for Mr Fraraccio, but was not dealt with at the time. I consider all of these behaviours to be a breach of the Nyrstar Code of Business Conduct which requires employees to act with courtesy, fairness, dignity and respect.

    Findings against Mr Cannan

    [233] Mr Cannan denied the allegation of being disrespectful to Mr Fraraccio on 18 January 2013. Mr Fraraccio’s evidence was that Mr Cannan moaned and hissed to him. There was no other witness evidence on this matter and the allegation was not made out by Nyrstar. I concur with that finding.

    [234] As to the allegation of Mr Cannan raising his voice at Mr Fraraccio during a conversation about a safety issue involving barrier tape, Mr Cannan denied the allegation. Mr Cox, who was a witness to the incident, said the conversation between both men was robust, but that neither Mr Cannan nor Mr Fraraccio raised their voices. It was an error for Mr Simmonds not to have questioned Mr Cox over this matter, particularly as Mr Cannan had identified him as witnessing the incident. I find, on the basis of the evidence given at hearing, this allegation cannot be made out against Mr Cannan.

    [235] The incident on 31 March 2013 alleged Mr Cannan was disrespectful and angry with Mr Fraraccio over interference by someone in Mr Cannan’s work. On the evidence presented and the submissions of Mr Reitano I conclude this behaviour was a result of frustration and was not aimed at Mr Fraraccio. Nevertheless, the behaviour was inappropriate and was a breach of the Nyrstar Code of Business Conduct. So too was the behaviour of Mr Cannan when he spoken disparaging about the Process Leader, Mr King at a pre-start meeting.

    [236] Having regard to the evidence of Mr Phillips and Mr Cannan relating to the incident where it was alleged Mr Cannan was ‘pointedly unpleasant’ to Mr Phillips. I am inclined to accept the submissions of Mr Reitano in that the allegation does not articulate any particular conduct on the part of Mr Cannan and cannot be proven on the evidence.

    Findings of historic behaviour

    [237] As to the historic allegations made by previous management of D-panel involving inappropriate behaviour by D-panel members, I have found this evidence the most difficult to reconcile. Firstly, many of the allegations did not specifically identify an employee, instead referring to D-panel in general. Secondly, the allegations stretch back to 1999-2000 at a time when there were some 24 employees on D-panel. Thirdly, whilst a number of previous D-panel management described working in D-panel as being harmful to their health and family life, they did not consider that any of the conduct of Mr Fuller, Mr Cannan or other D-panel members serious enough to take any action. Further a number of these same witnesses described Mr Fuller and Mr Cannan as easy to get along with.

    [238] However, based on the unchallenged evidence of Nyrstar witnesses as to how they felt working with D-panel and some of the historic, but specific behaviours that were attributed to Mr Cannan and Mr Fuller in pre-start meetings, and on the balance of probabilities, I have determined that this behaviour was of a bullying nature and is a breach of the Nyrstar Code of Business Conduct.

    [239] Having regard for the authorities on which Nyrstar relied in submissions and on the findings I have made that relate to bullying and breaches of the Code, I am satisfied there was a valid reason for the termination of Mr Cannan and Mr Fuller.

    s.387 (b) Notification of the valid reason

    [240] Mr Cannan and Mr Fuller were aware of the stated reasons for their dismissal by way of a termination letter, although it was argued that details or particulars of the reasons needed to be gleaned from other documents. Mr Wilson-Haffenden gave evidence that part of the reason for the dismissals were the contents of the 12 statements together with Nyrstar substituting its own findings for the general allegation of bullying (allegation 3 in the allegations letters), 197 where Mr Simmonds had found that allegation not to be made out. These matters, together with contrition, which formed part of the dismissal reasoning, were not disclosed to the Applicants prior to or at the time of dismissal. Accordingly, I have concluded that the Applicants were not notified of all of the reasons for their dismissals.

    s.387(c) Opportunity to respond to any reason

    The ‘show cause’ and termination letters

    [241] Having regard to all of the evidence it is clear Mr Cannan and Mr Fuller were not afforded an opportunity to respond to all parts of the reasons for dismissal, only the matters that were found proven by Mr Simmonds.

    [242] Relevantly, as discussed earlier, Mr Wilson-Haffenden’s evidence went to him substituting his own view for those of Mr Simmonds in relation to findings in the second investigation. These substituted findings, together with the content of the 12 statements were not articulated in the ‘show cause’ letters; were not provided to Mr Cannan or Mr Fuller before their dismissals and were not outlined in the letters of termination. The ‘show cause’ letter’s 198 sent to Mr Fuller and Mr Cannan provided a copy of Mr Simmonds’ findings and requested them to ‘shown cause’ as “…the Company treats all accusations of bullying within the workplace extremely seriously. Bullying is unacceptable and will not be tolerated. The Company has carefully considered all of the information available to it and in particular the matters identified through this investigation process and the findings of Mr Simmonds. The findings are serious…” The letter did not include any reference to Nyrstar considering general allegation 3 to be made out. I am satisfied the Applicants were not provided with an opportunity to address the issues related to that specific allegation as it formed part of the reasons for dismissal.

    [243] It is significant that Nyrstar relied upon matters that did not form the reasons for dismissal at the time it dismissed Mr Cannan and then Mr Fuller. Nyrstar relied on allegations that were never contemplated or raised as part of the dismissal process. Whilst Mr Wilson-Haffenden referred to a CFMEU official that there were more statements, this act did not afford fairness to Mr Cannan or Mr Fuller. Whilst Nyrstar argued that there had been previous allegations letters and that the CFMEU should have asked for more information, the obligation was on Nyrstar to provide the information so the Applicants could respond fully. The contents of the 12 statements did not form part of the reasons contained within the ‘show cause’ letters or meetings and as such I have concluded this omission renders the termination process procedurally unfair.

    [244] Further, the letters of termination 199 evidenced the specific findings of Mr Simmons with no mention of the substituted findings that Nyrstar made in relation to general allegation 3. Also the terminations letters stated “In reaching this decision to terminate your employment, we have taken into account all the available information, your employment history, your conduct and response to investigation outcomes.” Again there is no mention of the additional information from the 12 statements. This amounted to a procedural error.

    Contrition

    [245] It is clear that without disclosure of the 12 statements the Applicants were, unable to provide the contrition Nyrstar craved at the time of the ‘show cause’ meetings, through their inability to fully understand the impact of their conduct. 200 On the evidence of contrition provided by Mr Fuller during his interview with Mr Simmonds, and particularly that provided by Mr Cannan under cross-examination, I am satisfied that both Applicants have express contrition and were sincere in their endeavours. Further, Nyrstar’s failure to identify the issue of contrition in the ‘show cause’ letters or meetings served to further disadvantage the Applicants in the dismissal process, particularly as Mr Wilson-Haffenden said any contrition expressed would have been a material consideration for Nyrstar. I am of the view that the omission of contrition as a matter to be responded to at the ‘show cause’ meetings was a procedural error on the part of Nyrstar.

    [246] Whilst it does not change the behaviour, it is relevant that both Applicants stated they had no intention of bullying anyone, that they had never been told to stop the behaviour and had never been warned about the behaviour.

    [247] Procedural fairness is an important consideration and should not be lightly cast aside. Its proper application ensures a robust and just process for those involved.

    [248] I have concluded these were significant failures to accord fairness in the dismissal process that placed the Applicants at a considerable disadvantage to be able to show cause as to why their employment should not be terminated.

    s.387(d) Unreasonable refusal to allow a support person

    [249] Mr Cannan and Mr Fuller were not refused the right to have a support person present throughout the investigation and this did not affect the dismissal process.

    s.387(e) Warnings regarding unsatisfactory performance

    [250] Mr Cannan and Mr Fuller were not warned about any alleged unsatisfactory performance in the manner intended by s.387(e), namely by warning or counselling, so that ‘deficient’ performance could be rectified or addressed.

    [251] Nyrstar viewed s.387(e) as having no relevance in this matter as the Applicants were dismissed for misconduct and not unsatisfactory performance, although there was some dispute as to ongoing behaviour being a matter of performance in the workplace. Both parties submitted that these issues were capable of being dealt with, in any event, under s.387(h) ‘other matters’ and I do so below.

    s.387(f) Impact of the size of Nyrstar on procedures followed

    [252] Nyrstar is a large business with in excess of 400 direct employees. Documentary evidence submitted in the matter indicates considerable policy and procedure documentation. I have determined the size of Nyrstar’s enterprise did not impact the dismissal procedures followed.

    s.387(g) Absence of dedicated human resources management expertise on procedures followed

    [253] Nyrstar has a dedicated human resource function with a Human Resource Manager and Superintendent, both working at the Risdon Smelter site. The absence of such a function is not relevant in this matter.

    s.387(h) other relevant matters

    Person Impact

    [254] The personal impacts of most terminations of employment are significant. This is certainly so in the circumstances of this case. Both Applicants are aged 50 years or older and have worked in the one job for the one employer for 18 years. Coupled with their specific skill set, I am of the view both Mr Cannan and Mr Fuller will find it difficult to obtain full time employment. This is however, as submitted by Nyrstar, only one factor in determining whether a dismissal is harsh, unjust or unreasonable.

    Condonation

    [255] The principle behind the Applicants’ submission of condonation is that an employer, with full knowledge of an employee’s misconduct and continues to employ him, cannot later rely on that misconduct to dismiss the individual. Thus, by knowing the behaviours of Mr Cannan and Mr Fuller and electing to continue the employment of them, Nyrstar ‘condoned’ their conduct and ‘waived’ the right to terminate their employment contracts. 201

    [256] The practical manifestation of this principle in the employment context is that a wronged party has the right to elect, in the face of a breach of a condition of an employment contract, either to continue the contract or terminate it for breach. In order for condonation to be present, an employee must provide that:

    [257] In B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, the Full Bench held at [42]:

    [258] It is clear that condonation is a relevant consideration in determining whether a dismissal is harsh, unjust or unreasonable.

    [259] There was considerable evidence on the part of Mr Wells that as Superintendent of Casting, he was aware in the early 2000s about the behaviours of members of D-panel, including him substituting one Team Leader for another, due to burn out. 203 Mr Wells continued to have these concerns, along with other managers at Nyrstar, however no one ever dealt with the behaviour or invoked disciplinary procedures. Two safety officers of Nyrstar described what they believed to be unsafe behaviour; however neither of them took action to have the behaviour dealt with.

    [260] Mr Rainbird said senior managers had expressed concerns to him about running communication sessions with D-panel and Mr Mudge’s evidence was that the Leadership Group in Casting discussed the problems and culture with D Panel but the situation was allowed to persist. 204

    [261] Nyrstar’s submissions that Team Leaders were ‘on the floor’ trying to meet the expectations of management, and upper management were not engaging unless Team Leaders requested assistance, only supported, in my view, the existence of unacceptable management practices that supported an unwanted culture.

    [262] The evidence 205 of Mr Wells, Mr Rainbird and most of the previous Team Leaders of D-panel provided that over the long history of this matter, there was a tolerance or acceptance of the conduct of the Applicants. Previous Team Leaders of D-panel and Senior Managers said they did not consider the conduct of Mr Fuller and Mr Cannon serious enough to warrant disciplinary action.

    [263] I have concluded that Nyrstar management had full knowledge of the conduct of the Applicants, that despite this they not only retained the Applicants’ services, they did nothing about the conduct and that accordingly, Nyrstar had deliberately given up the right to dismiss the Applicants summarily for that behaviour.

    Management inaction

    [264] The disputes over crib times and job rotation lay at the heart of the relationship between members of D-panel and their Team Leader Mr Fraraccio. The failure of Nyrstar to deal with those matters effectively and efficiently created significant pressure within the workplace, which festered and fed, in my view, an environment of little respect on either side. An example of this was the inability of any Nyrstar witness to confirm what actions had been taken by the company to resolve the formal dispute that was invoked by Mr Fuller on 20 May 2013. Mr Wilson-Haffenden, Ms Newton and Mr Fraraccio failed to progress the dispute to any level after receiving a copy of the dispute form.

    [265] Nyrstar’s evidence was that they, together with Mr Fraraccio, wished to have D-panel rotate fewer jobs. This had been an on-going matter for a number of years and was seen as a serious issue. However despite this, Nyrstar management never attempted to have the dispute resolved through the dispute resolution procedure.

    Unsatisfactory behaviour/performance

    [266] Both Mr Cannan and Mr Fuller had substantially unblemished employment with Nyrstar over some 18 years, having received satisfactory or good performance appraisals. The evidence of many of the previous Team Leaders did not accord with the performance reviews conducted on the Applicants and that none of the conduct complained of attracted disciplinary action of any kind or any pro-active management at the time it was said to have occurred. I found this evidence difficult to reconcile. Having regard to all of the evidence of these Team Leaders, I have concluded, on the balance of probability, they were lacking in the skills and training required to properly conduct a frank and transparent performance review process. That said, it was entirely appropriate for the Applicants to rely on the performance reviews and for them to consider they were conducting themselves satisfactorily.

    [267] Further any conduct that was considered to be unsatisfactory in the workplace is catered for under Nyrstar’s Performance Improvement and Disciplinary Policy and states that generally employees will be provided with an opportunity for improvement and that action should be taken in a timely manner. Whilst it is common ground that the Applicants were not dealt with under this policy and was not afforded an opportunity change their behaviour, Nyrstar submitted that the Applicants had an opportunity during the investigation process to accept their behaviour was wrong, but failed to do so. I am of the view that Nyrstar, by way of failing to deal with any of the conduct complained of in a contemporaneous manner, failed in its obligation to allow the Applicants an opportunity to understand and change their behaviour, which added to the procedural deficiencies in these dismissals

    Conclusion as to merits

    [268] Following consideration of each of the matters specified in s.387, I have concluded that there was a valid reason for the Applicants’ dismissals by reason of their misconduct. Mr Cannan had, what I consider, an unblemished employment history. Whilst Mr Fuller’s disciplinary history is not without incident, the last formal matter was some 8 years ago and is not significant when applying ‘the standard of men not angels’. 206 Given their 18 years’ service to Nyrstar, ages at the time of dismissal, family dependent responsibilities, the denial of procedural fairness in effecting the dismissals, my findings on the condonation by Nyrstar and lack of managing the behaviour, I am satisfied the conduct did not justify summary dismissal. I find the dismissals of both Mr Fuller and Mr Cannan were harsh.

    Remedy

    [269] Section 390 describes the circumstances of when a remedy order may be made:

    [270] The jurisdictional preconditions in s390(1)(a) and (b) are satisfied and I will now consider whether to order the reinstatement of Mr Cannan and Mr Fuller or, if reinstatement is inappropriate, whether in all the circumstances, it is appropriate to order payment of compensation to the Applicants.

    Reinstatement as the primary remedy for an unfair dismissal

    [271] Subsection 390(3) provides the primacy of reinstatement as a remedy for an unfair dismissal with compensation only to be ordered where the FWC considers reinstatement inappropriate. Part 3-2 of the Act, which contains the unfair dismissal provisions, evidences that an object of that Part, at s.381(1)(c), is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.” The question in determining whether to grant reinstatement of an employee who has been unfairly dismissed is whether that is appropriate in the particular case.

    [272] Nyrstar advanced the argument that reinstatement is inappropriate in this matter as there had been a loss of trust and confidence, so as to make impossible any re-establishment of the employment relationship with the Applicants. This argument is not uncommon in unfair dismissal matters. Loss of trust and confidence concerns what is essential to make an employment relationship work. In Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd 207 Gray J observed that the development of law relating to the employment relationship and trust and confidence started when that relationship customarily involved a close personal relationship between employer and employee, but that the importance of trust and confidence has diminished with the rise of corporate employers.208 That is not to say that trust and confidence is not important, however an assessment must be made as to the likely effect of any loss of trust and confidence on workplace operations and all circumstances must be taken into account.

    [273] Relevant to this the Full Court of the Industrial Relations Court under the Workplace Relations Act 1996 in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 said of a reinstatement remedy at 191:

    [274] The more recent Fair Work Australia Full Bench decision in Regional Express Holdings Limited v Richards [2010] FWAFB 8753 also observed at paragraph [26]:

    [275] The conclusions of the Full Benches in Perkins and Regional Express relating to the appropriateness of reinstatement continue to have currency and I adopt them in forming my decision whether an order reinstating the Applicants is appropriate.

    Is reinstatement appropriate?

    [276] The Risdon Smelter remains operational with a large number of employees and contractors on site. No matters were put to me that indicated reinstatement would result in either Mr Cannan or Mr Fuller being surplus to Nyrstar’s business requirements. This is clearly a factor which goes to the question of the appropriateness of reinstatement. 209 No matters have been brought to my attention that indicated undisclosed serious misconduct which would almost certainly lead to a further termination of the Applicants’ employment. There was no evidence of a material incapacity on the part of either Mr Cannan or Mr Fuller that would affect the further performance of their contractual obligations.210

    [277] Both Mr Cannan and Mr Fuller were Operators within Casting at the Nyrstar Risdon Smelter, responsible for operation of plant in the production of zinc. These positions do not have any managerial responsibilities. As is apparent from my earlier findings, whilst there existed a culture within D-panel that had been fostered by Nyrstar’s inaction, both Mr Fuller and Mr Cannan breached Nyrstar’s Code of Business Conduct in their dealings with their Team Leader, Mr Fraraccio and others. There was an obligation on them to conduct themselves in accordance with the principles of that Code. The inaction of Nyrstar added to the Applicants’ lack of understanding of the effect of their conduct. Having regard to the contrition expressed by both Mr Cannan in cross-examination and by Mr Fuller in the interview with Mr Simmonds, I am satisfied that both Applicants are now cognisant of their conduct and are capable of change.

    [278] The decision of Anning, on which Nyrstar sought to rely, differs from these matters in that many of these allegations were old and neither of the Applicants denied raising issues many times or challenging their management. Having considered Anning, I note that decision provides that each case runs on its own particular set of circumstances and warned against an employer relying on behavioural excesses over a lengthy period.

    [279] There was nothing that was put to me that would indicate an irreparable breakdown in the trust and confidence relationship between the employer and the Applicants and I am of the view that it is appropriate to order the Applicants’ reinstatement.

    Conclusion

    [280] I am satisfied that Mr Cannan’s and Mr Fuller’s dismissals were harsh.

    [281] I have concluded that in all the circumstances reinstatement of both Mr Cannan and Mr Fuller is appropriate to another position on terms and conditions no less favourable than those on which they were employed immediately before the dismissals. I have also determined it appropriate to maintain the continuity of Mr Fuller’s and Mr Cannan’s employment and that their period of continuous service is maintained.

    [282] To enable assessment of lost pay relevant in these matters, the parties are required to provide written submissions relevant to the issues contained in s.391(3) and (4) of the Act. Directions of the provision of these submissions are issued separately.

    [283] An order giving effect to this decision will be issued, following receipt of the submissions requested above. Should a conference to affect an orderly return of the Applicants to the workplace be considered appropriate, I am available at the request of either of the parties.

    DEPUTY PRESIDENT

    Appearances:

    Mr R Reitano, for the Applicants

    Ms S Zeitz, for Nyrstar, the Respondent

    Hearing details:

    Hobart

    2014

    3, 4, 5 June and 1, 2, 3, 4 July

    Final written submissions:

    2014

    25 August

     1   Exhibit R4 – Statement of Timothy Wilson-Haffenden, 7 April 2014 Attachments TWH-29 and TWH-32

     2   Transcript – PN70-72

     3   Exhibit A1 – Statement of Marshall Reeves, 28 April 2014 Attachment MRR-1

     4   Transcript, PN2794, 2795 and 2805

     5   Exhibit R4 – Attachment TWH-24

     6   Exhibit R4 – Attachments TWH-29 and TWH-32

     7   Exhibit A1

     8   Exhibit A2 – Statement of Noel Cannan, 28 April 2014

     9   Exhibit A4 – Statement of Kevin Fuller, 28 April 2014

     10   Exhibit A5 – Statement of Gardner Cox, 28 April 2014

     11   Exhibit R3 – Statement of Victoria Newton, 7 April 2014

     12   Exhibits R4 & R21 – Supplementary statement of Tim Wilson-Haffenden, 26 May 2014

     13   Exhibit R5 – Statement of Craig Wells, 29 May 2014

     14   Exhibit R6 – Statement of Joshua Fraraccio, 7 April 2014

     15   Exhibit R7 – Statement of William Hinds, 13 June 2013

     16   Exhibit R8 – Statement of Kerry Seabourne, 28 August 2013

     17   Exhibit R9 – Statement of Steven Phillips, 7 July 2014

     18   Exhibit R10 – Statement of Cade Terry, 29 August 2013

     19   Exhibit R11 – Statement of Adrian Mudge, 29 August 2013

     20   Exhibit R12 – Statement of Ricky Schultz, 8 May 2014

     21   Exhibit R13 – Statement of David King, 1 August 2013

     22   Exhibit R14 – Statement of Stuart Moore, 29 August 2013

     23   Exhibit R15 – Statement of Alexandra Williams, 16 August 2013

     24   Exhibit R16 – Statement of Grant Seward, 12 May 2014

     25   Exhibit R17 – Statement of Terence Hinds, 2 May 2014

     26   Exhibit R18 – Statement of Craig Rainbird, 7 April 2014 with attachments CR-2A and CR2B & Exhibit R19 – Supplementary Statement of Craig Rainbird, 23 May 2014

     27   Exhibit R15, paragraph 6

     28   Transcript, PN 2541-2542

     29   Transcript, PN4962

     30   Exhibit R6 – Attachment JF-9

     31   Transcript, PN4563, PN4574

     32   Exhibit A2 – paragraph 12

     33   Exhibit A2 – paragraph 9

     34   Transcript, PN4499

     35   Transcript, PN5142, PN5150, PN5152

     36   Transcript, PN5195

     37   Transcript, PN2680, PN1171

     38   Transcript, PN2662

     39   Transcript, PN4815

     40   Exhibit R11, paragraph 27

     41   Transcript, PN5070-5073, PN5087-5088, PN5083

     42   Transcript, PN5896

     43   Transcript, PN6272

     44   Transcript, PN6814

     45   Exhibit R7, paragraph 18

     46   Transcript, PN4768-4770, PN4766

     47   Transcript, PN4072

     48   Exhibit R3, Attachment VN-8

     49   Transcript, PN4274

     50   Transcript, PN732

     51   Transcript, PN4236-4237

     52   Transcript, PN4309

     53   Exhibit R6, paragraph 46

     54   Exhibit R18, paragraph 54

     55   Transcript, PN1882

     56   Transcript, PN6714

     57   Exhibit R18, paragraph 50

     58   Transcript, PN779 -782

     59   Transcript, PN2411

     60   Exhibit R18 – Attachments CR-2A, paragraph 25 & CR-2B, paragraph 5

     61   Exhibit R6, paragraph 19

     62   Exhibit R6, paragraph 27

     63   Transcript, PN2585

     64   Transcript, PN2590, PN2604

     65   Transcript, PN5432

     66   Transcript, PN5303

     67   Exhibit R12 – Attachment RDS-1, paragraph 11.

     68   Exhibit R10, paragraph 20

     69   Exhibit R11, paragraph 7

     70   Transcript, PN6417, PN6415-6416

     71   Transcript, PN5144

     72   Exhibit R6, paragraphs 63 and 64

     73   Exhibit A2 – paragraph 14

     74   Exhibit A5 – paragraph 4

     75   Transcript, PN5912

     76   Transcript, PN1026

     77   Transcript, PN5309

     78   Transcript, PN4751

     79   Transcript, PN1295

     80   Transcript, PN1022

     81   Exhibit A2 – Attachment NAC-2

     82   Transcript, PN1060

     83   Transcript, PN937

     84   Exhibit R6, paragraphs 31

     85   Exhibit A4 – paragraph 15

     86   Exhibit R6, Attachment JF-2

     87   Exhibit R6, paragraph 37

     88   Transcript, PN4455-4456

     89   Transcript, PN5949, PN5954

     90   Transcript, PN1778-1779

     91   Transcript, PN1773

     92   Exhibit A3

     93   Transcript, PN6843

     94   Transcript, PN2001

     95   Exhibit R2 – Progressive Discipline Report, Zinifex Ltd, employee Kevin Fuller, dated 5 July 2006

     96   Exhibit R21 – Supplementary Statement of Tim Wilson-Haffenden, dated 26 May 2014, paragraph 22

     97   Transcript, PN1795

     98   Transcript, PN1808

     99   Exhibit A4 – Attachment KMF-2, Nyrstar Hobart Smelter Performance Based Pay Performance Review Form Operator, Kevin Fuller

     100   Exhibit R6 – Attachments JF-4 and JF-7

     101   Exhibit R7, paragraph 13

     102   Exhibit R9, paragraph 15

     103   Transcript, PN5296

     104   Exhibit R17 – Attachment TH-1, paragraph 7

     105   Transcript, PN1756

     106   Transcript, PN4320, PN4332

     107   Transcript, PN4416-4418, PN4437

     108   Exhibit R21, paragraphs 17 to 27

     109   Transcript, PN4348, PN4540

     110   Transcript, PN4434, PN4363

     111   Transcript, PN5757-5758

     112   Exhibit R12 – Attachment RDS-2 to RDS-5

     113   Transcript, PN1360

     114   Exhibit R16, paragraphs 10 to 13

     115   Exhibit R19, paragraph 6

     116   Transcript, PN6870

     117   Transcript, PN2844

     118   Exhibit R4, paragraph 19

     119   Exhibit R3, Attachment sVN-12, VN-13, VN-14

     120   Exhibit R3, paragraph 35

     121   Exhibit A3

     122   Exhibit R4, paragraph 29 and Attachment TWH-9

     123   Exhibit R3, paragraph 50

     124   Exhibit R3, Attachment VN-31

     125   Exhibit R4 – Attachment TWH-12

     126   Exhibit R4 – Attachment TWH-13

     127   Exhibit R4, paragraph 45

     128   Exhibit R4 – Attachment TWH-15

     129   Exhibits A6 & A7

     130   Transcript, PN3438-3439

     131   Exhibit R4 – Attachment TWH-19

     132   Exhibit R4 – Attachment TWH-24

     133   Exhibit R4 – Attachment TWH-20

     134   Exhibit R4 – Attachment TWH-21

     135   Exhibit R4 – Attachment TWH-25

     136   Transcript, PN3347

     137   Transcript, PN1558

     138   Transcript, PN3369

     139   Transcript, PN3886-3887

     140   Transcript, PN3857

     141   Transcript, PN2345

     142   Exhibit R4, paragraph 66

     143   Transcript, PN3291-3292

     144   Exhibit A4, paragraph 31 & Exhibit A8 – Transcribed section of interview with Mr Simmonds

     145   Exhibit R4, paragraphs 63 and 67

     146   Transcript, PN3198-3199

     147   Transcript, PN3214

     148   Transcript, PN3931

     149   Transcript, PN3216

     150   Transcript, PN3267, PN3277

     151   Exhibit A8 – Transcript of Mr Fuller’s apology during interview with Mr Simmonds

     152   Transcript, PN3882

     153   Transcript, PN1150-1151

     154   Exhibit R5 – paragraph 12, Attachment CGW-1, page 1, paragraph 3 and page 6, paragraph 46

     155   Exhibit R5 – Attachment CGW-1, page 7, paragraph 4

     156   Exhibit R5, paragraphs 5 and 6

     157   Transcript, PN4027

     158   Exhibit R5 – Attachment CGW-1, page 3, paragraph 18 and page 10, paragraphs 22 and 23

     159   Transcript, PN4037, PN4097 and PN4088-4089

     160   Exhibit R7, paragraph 5

     161   Transcript, PN4893, PN4899, PN4909-4910, PN4914

     162   Transcript, PN4944-4946, PN4949

     163   Exhibit R11, paragraphs 28 and 29

     164   Exhibit R12, paragraph 29

     165   Exhibit R14, paragraph 6

     166   Exhibit R14, paragraph 13

     167   Transcript, PN6019

     168   Transcript, PN6373-6377

     169   Transcript, PN6546-6547

     170   Exhibit R18 – Attachment CR-2A, paragraph 31

     171   Exhibit R18 – Attachment CR-2A, paragraph 5

     172   Transcript, PN6818-PN6821

     173   Transcript, PN295

     174   Transcript, PN1838

     175   Transcript, PN4475-4477

     176   Transcript, PN4408

     177   Exhibit R6, paragraph 10

     178   Exhibits A8 & R20 – part of Respondent’s outline of submissions

     179   Transcript, PN674 & 675

     180   Transcript, PN1667-1668

     181   Transcript, PN123

     182   Transcript, PN 129 & 130

     183   Transcript, PN1252

     184   Exhibit A10 – Applicants’ written closing submissions, paragraph 13

     185   Exhibit R4, paragraph 63

     186   Transcript – PN1415, PN1482

     187   Exhibit A1 – Attachment MRR-1, clause 2.4.2

     188   Transcript – Ms Zeitz, PN2705

     189   Transcript – Ms Zeitz, PN2707

     190   Transcript, PN7151

     191   Exhibit R4 – Attachment TWH-31

     192   Transcript, PN7187

     193   Transcript, PN 7217

     194   R20, paragraph 26

     195   Exhibit R4 – Attachment TWH-24

     196   Fair Work Act 2009, s.789FD(1) and (2)

     197   Exhibit R4 – Attachment THW-19, page 3

     198   Exhibit R4 – Attachment TWH-25

     199   Exhibit R4 – Attachments THW-29 & TWH-32

     200   Exhibit R4, paragraph 66

     201   Howard v Pilkington (Australia) Ltd [2008] VSC 491 at [49] citing Rankin v Marine Power International Pty Ltd [2001] VSC 150.

     202   Ibid.

     203   Exhibit R5, paragraphs 5 & 6

     204   Exhibit R11, paragraphs 28 and 29

     205   Exhibit R11, paragraph 29, Exhibit R14 paragraph 13, Exhibit R15 Attachment CR-2A paragraphs 5 & 31

     206   Jupiter General Insurance v Shroff [1937] 3 All ER 67 at 74

     207   [2000] FCA 627

     208   Ibid at [42]

     209   See Newtronics Pty Ltd v Salenga, AIRC Full Bench, PR4305

     210   See Smith v Moore Paragon, AIRC Full Bench, PR942856

    Printed by authority of the Commonwealth Government Printer

    <Price code J, PR553610>