| [2015] FWC 2343 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
William Fitzpatrick
v
Mt Arthur Coal Pty Limited
(U2013/2954)
COMMISSIONER STANTON |
NEWCASTLE, 29 MAY 2015 |
Application for unfair dismissal remedy - arbitration.
[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act). The applicant in this matter, Mr William Fitzpatrick, was dismissed with notice on the grounds of serious misconduct. At the time of his dismissal, the applicant held the statutory position of shotfirer and had been employed by the respondent, Mt Arthur Coal Pty Limited, for approximately nine and a half years. It was common ground that prior to his dismissal the applicant had not been warned or counselled concerning his employment with the respondent.
[2] The applicant’s dismissal followed a “detailed” and “thorough” investigation into multiple allegations concerning threatening and intimidating behaviour against the applicant.1 That investigation subsequently determined:
[3] The applicant denied the allegations and the pattern of behaviour alleged. He considered the allegations were “unfounded or exaggerated”.2 The respondent denied him procedural fairness on the grounds that he was not shown copies of any statements in support of the allegations against him. He sought reinstatement to his former position.
[4] Mr Howell sought permission to appear for the applicant and Mr Warren sought permission to appear for the respondent. Having regard to s.596 of the Act and the complexity of the matter, permission was granted to both parties to be represented.
[5] On 18 July 2013, a then employee of the respondent, Mr Dean Jenner approached the Production Superintendent, Ms Hannah Farr to express his concern about allegations of bullying and harassment. Mr Jenner told Ms Farr, “I’ve had threats on my life and I need to let someone know.”3
[6] A further meeting with Mr Jenner occurred on 23 July 2013 with Ms Farr and Mr Mark Stroppiana, Manager, Human Resources. A subsequent meeting was also convened on 25 July 2013 involving Mr Michael White, the Mine General Manager.
[7] Mr Stroppiana and Mr Ross Carlson, the Mine Manager, Production, Coal and Services, were subsequently appointed by the respondent to investigate the allegations of bullying and harassment made by Mr Jenner. Ms Farr was also seconded to assist the investigation.
[8] The respondent commenced the investigation on 30 July 2013. More than 30 employees were interviewed. Ms Farr and Mr Carlson also interviewed Mr Jenner in Port Macquarie on 31 July 2013 to obtain particular details concerning the various allegations that he had made. The respondent subsequently set out the specific allegations concerning the applicant’s conduct and other allegations corroborated by employees interviewed as part of the investigation in correspondence sent to the applicant dated 2 August 2013:
It is alleged that on various occasions you have made threatening and intimidating comments to and about employees which were of a violent nature – threatening their personal safety and wellbeing.
Example 1
In November of 2012, a meeting of blast crew members was convened in the old crib room. An employee asked the supervisor Kenny Reichart at the time to leave the room and made a statement along the lines of:
At this meeting you were witnessed and heard by other employees to respond to this comment by stating that the “dog or dogs would get bashed if they were found out.” In the same meeting you were also seen and heard to have made a comment to Dean Jenner along the lines of:
Example 2
In April 2013, you were seen to be engaged in a confrontation with another employee Brett Spokes. The confrontation was regarding the fact that Brett Spokes took a second crib break. The comment you were reported to of made at the time was:
Example 3
During the Easter period this year, you were reportedly seen and heard to have stated to other blast crew members not to work overtime shifts against the Company’s wishes on the weekend by making the statement:
Example 4
Approximately 6 months ago, you were alleged to of made comments to Barry Sowter following a comment he made on the way you had directed an Orica employee to reverse her truck that actually resulted in her reversing into a drill hole. You stated:
It is alleged that you have raised inappropriate comments of a bullying and harassing nature to other employees.
Example 1
In a recent blast crew meeting you were witnessed to have motioned to kick and punch Barry Sowter off his chair, as you were sitting behind him. Recently, on a separate occasion you were witnessed to have called Barry Sowter:
Example 2
In July, 2013 in full view of the blast crew in a pre-shift meeting you made the comment to Shane Smiles:
This was heard by the Supervisor, Ollie Hall at the time and he pulled you up on this stating it was not an appropriate comment to make.
Example 3
We have evidence that you have been responsible for posting Facebook messages of a disparaging nature that makes direct reference to other employees (Dean Jenner and Jeremy Burgess).
In addition to these allegations, we are concerned with the following behaviours and practices that have been observed by other employees, which is seen to be impacting on operational effectiveness.
Example 1
On numerous occasions you have changed names on the line up board in the pre-start room, so that you try and arrange to work with a select group of people, namely Lisa Hull, Brad Borham, David Pang Cum, Colin Dolbel and Brett Murray without Supervisor authorisation.
Example 2
Making claim to Company property, specifically not releasing the Company vehicle that you regularly use (vehicle 4107) as required by other blast crew members.
[9] The applicant attended a meeting with Mr Carlson and Mr Stroppiana on 5 August 2013. He was accompanied by his support person, Mr Jeff Drayton, an official of the Construction, Forestry, Mining and Energy Union (the Union). The applicant provided a written response to the allegations and spoke to that response during the meeting. Shortly stated, the applicant strongly denied the allegations. The applicant’s response can be summarised as follows:
(i) Confirmed he had attended a meeting in or around November 2012 where it was reported that one of the blast crew had been attending private Union meetings and subsequently reporting what occurred back to management. He did not call or arrange the meeting, but had admitted that he and others had described this as a “dog act”, but denied that he had said “the dog or dogs would be bashed” or that he had said to Mr Jenner “I have cut tongues out for less than this”;
(ii) Denied ever saying to Mr Spokes “If you fuck with my family’s money, I will fuck with your life”. He did describe a discussion he had had with Mr Spokes where he pulled him up for doing the wrong thing associated with taking a second crib break, which 9 hour shift workers, such as Mr Spokes were not entitled to;
(iii) Denied he had ever said that there would be “fucking trouble” if anyone performed overtime over the Easter weekend, an allegation subsequently withdrawn by the respondent;
(iv) Denied that he had threatened Mr Sowter or that he had motioned to punch or kick Mr Sowter off his chair at a blast crew meeting, or called him a derogatory name and that he should hurry up and retire;
(v) Denied he had “bullied or harassed” Mr Smiles, but did describe a discussion he had had with Mr Smiles where he had made a “colloquial comment” to the effect that he should “Grow some balls and put up your hand and take a shot on”;
(vi) Did not recall having made disparaging comments about Mr Jenner or Mr Jeremy Burgess on Facebook. In that regard, he asked to be shown the alleged comments so he could respond having regard to his Facebook account to identify what the allegation may relate to;
(vii) Denied having bullied and harassed anyone by changing the names on the board in the pre-start room. That allegation was subsequently withdrawn by the respondent;
(viii) Denied acting inappropriately, harassing and bullying anyone in relation to the use of the vehicle for which he had had “principle responsibility” for “approximately four years.”
[10] The respondent subsequently determined the allegations were substantiated on the available evidence.
[11] Mr Carlson reviewed the findings in relation to the investigation and subsequently provided a recommendation to Mr White on 8 August 2013 that corroborated a pattern of threatening behaviour had been established. The applicant was provided with a letter outlining the investigation findings during a show cause meeting on 9 August 2013. The applicant subsequently provided a response to the allegations where he denied the allegations. During a further meeting with the respondent on 16 August 2013, the applicant was given a letter of dismissal.
[12] Pursuant to s.590(2)(a) of the Act the respondent had made an application for an Order requiring a Mr Jenner to attend Fair Work Commission in Newcastle at 10.00am on 28 February 2014. A statement by Ms Anna Reoch, a solicitor with Ashurst Australia, the respondent’s representative in these proceedings concerning the steps taken to secure and execute the Order was tendered without objection.
[13] Ms Reoch deposed she sent the executed Order to Mr Jenner on 18 February 2014 by Express Post and confirmed that delivery via “Track your item” occurred on 19 February 2014. Ms Reoch subsequently contacted Mr Jenner by telephone to confirm the Order had been issued by the Fair Work Commission requiring his attendance at the hearing. It was Ms Reoch’s evidence that Mr Jenner started experiencing technical difficulties with his telephone whereby the telephone call was subsequently disconnected. Mr Reoch attempted to contact Mr Jenner again but instead reached his voicemail. She had no further contact with Mr Jenner. Ms Reoch was not required for cross-examination.
[14] The applicant’s case relied on witness statements provided by:
[15] The following persons gave evidence on behalf of the respondent:
[16] I have given consideration to the extensive nature of the witness statements filed in this matter and the extensive cross-examination that followed. I do not propose to summarise that evidence line by line.
[17] The applicant’s evidence was that he had never been warned or counselled since commencing work with the respondent in January 2004. He further considered the range of incidents relied upon by the respondent to dismiss him for “a pattern of alleged threatened or intimidating behaviour”4 was either fabricated or exaggerated.
[18] The applicant was initially not told who specifically had made the allegations against him – but he later understood the complaints had been made by Mr Jenner. The applicant deposed Mr Jenner had taken a disliking against a number of employees including him. He further alleged Mr Jenner had made the complaints on or around 28 July 2013 to enable him to participate in a body building competition known as the Max Muscle Up Challenge which also commenced on 28 July 2013.
[19] The applicant recalled that on 30 July 2013, he and five other employees were called to a meeting where Mr Carlson stated, “There have been some allegations of harassment and intimidation against some employees.”5 The applicant and the other employees were subsequently stood down pending a formal investigation. The applicant understood none of the five employees were given any form of formal warnings in response to their conduct.
[20] Following Union intervention, the applicant received written confirmation of the allegations on 2 August 2013 which he subsequently strongly denied.
[21] The applicant stated he had cause for concern about Mr Jenner’s behaviour. The applicant stated that following the completion of his shift at 3:00pm one day, he had noticed Mr Jenner at the Coles supermarket in Muswellbrook. He could not recall the precise date, but did recall that Mr Jenner was rostered to work that day to until 6:00pm. The applicant asked Mr Jenner why he was not at work. Mr Jenner subsequently replied, “Yeah, sweetener”, which he explained meant, “Mr Jenner had snuck away from work early.”6 The following conversation ensued:
Applicant: You are mad leaving early; with what you are doing you are going to stuff it for everyone... If the company catches you, it doesn’t just look bad for you, it looks bad for every Shotfirer and you know what the Company are like. If they think Shotfirers are taking them for a ride, they will come down on us like a tonne of bricks.
The applicant stated that in response, “Mr Jenner did not care.” Mr Jenner was annoyed when the applicant warned him that if he became aware that he had left work early, he would inform management. Other shotfirers had told him that they had seen Mr Jenner in town or at the gym when he should have been at work.
[22] The applicant stated he was not provided with copies of the written statements of those employees who had raised allegations concerning bullying and harassment against him. He relied and adapted his response to the Company’s show cause letter concerning the allegations put against him.
[23] In a second witness statement,7 the applicant stated he was supervised by Mr Frank Botha and Mr Oliver Hall8 who allocated work and company vehicles to the shotfirers.9 He had been allocated an explosives vehicle for approximately three years. Any conduct on his behalf alleged to have occurred at a pre-shift information meeting would have been observed by the supervisor.
[24] The applicant stated he was a member of a motorcycle club and during his membership of some five years, he had never ridden his motorcycle to work. The applicant noted that the club required members to wear club colours when riding a motorcycle. As a member of the club, he had never been accused of unlawful activity or been subject to any police investigation. Members of the shotfiring crew were unaware of his club affiliation until a new employee showed them a photograph of him wearing his club colours. It was the applicant’s evidence that he would only speak about his club involvement if asked which was fairly rare. He denied Mr Jenner’s references concerning his photograph being on Facebook dressed in club colours. In that regard, the applicant stated it was club policy was that no member photographs were to be placed on social media.
[25] In relation to Mr Jenner’s complaints, the applicant stated Mr Jenner never made a written statement and dismissed the allegations raised with Ms Farr as being untrue.
[26] The applicant stated he considered Mr Jenner’s work on a “shot” as unsatisfactory on the grounds that Mr Jenner did not always conduct the relevant checks prior to the blast.10 He further denied that he had photographs of motorcycle club members on his tablet computer. He also denied making threats against Mr Brett Spokes and harassing Mr Barry Sowter.
[27] In cross-examination, the applicant recalled undertaking Code of Business Conduct: Working with Integrity (the Code of Conduct) training on 14 May 2013 and acknowledged he understood that policy.11 He further acknowledged that conduct such as swearing and offensive, insulting, intimidating, malicious or humiliating behaviour was a breach of the Code of Conduct.12 The applicant further agreed that a breach of the Code of Conduct could result in termination of employment.13
[28] The applicant strongly refuted that he spoke to or acted towards Mr Jenner,14 Mr Spokes,15 Mr Sowter16 and other employees in a threatening and intimidating manner contrary to the Code of Conduct.17
[29] In re-examination, the applicant explained that if he was the shotfirer in charge at the time he saw an employee commit an unsafe act he would “speak to them about it and show them how it is done properly or ask why they’re doing it that way.”18
[30] Mr Spokes has worked with the respondent as a shotfirer for approximately two years.
[31] Mr Spokes was aware that Mr Jenner had lodged a complaint against the applicant and other employees. He was also aware that Ms Farr had described a conversation she had with Mr Jenner on 29 July 2013 in the following terms:
“Spokey’s had his life threatened too. If you affect my family you are dead.”19
In that regard, Mr Spokes stated that he understood that Mr Jenner had alleged to Ms Farr that the applicant had threatened him. It was Mr Spoke’s evidence that he never told Mr Jenner that the applicant had threatened his life nor had the applicant ever threatened his life.
[32] When interviewed by the respondent on 31 July 2013, Mr Spokes stated that he denied that he had ever been bullied, harassed or threatened by the applicant. Nor could he recall having witnessed anyone being bullied, harassed or threatened by the applicant.
[33] Mr Spokes contended that much of the interview concerned rumours that he may have heard at the workplace concerning the applicant’s conduct.20 Mr Spokes recalled an occasion when the applicant spoke to him about taking a second crib break. During the course of that discussion, the applicant did not threaten his life. However, he did note that the applicant likes to “cross his t’s and dots his i’s” when he’s undertaking his duties as he is one of the best shotfirers to work with at the respondent’s mine.21
[34] When Mr Spokes heard that the respondent had relied upon the discussion between the applicant and himself concerning the taking of the second crib break as a reason for the applicant’s dismissal, he was not happy. In that regard, he subsequently raised the matter with Mr Stroppiana, who responded by stating, “We didn’t have to confirm it with you as it was confirmed with numerous other sources.”22 At the time, Mr Stroppiana could not identify who had said the applicant had threatened Mr Spokes.
[35] In relation to his record of interview with Mr Stroppiana that was attached to Mr Stroppiana’s Witness Statement dated 28 January 2014, Mr Spokes stated that he had never heard the applicant in any way threaten Mr Jenner nor had he heard anybody else say that the applicant had threatened Mr Jenner. Further, Mr Spokes stated that Mr Jenner had raised the issue with him about two days before his interview with Mr Stroppiana and in that regard, he did not take Mr Jenner’s concerns very seriously on the grounds that when he asked him whether he had told his wife about being threatened, Mr Jenner said “he had not.” Mr Spokes further recalled that at the time, he thought it was unusual that Mr Jenner would raise such a matter with him as he rarely spoke to Mr Jenner during work.
[36] When interviewed by Mr Stroppiana, Mr Spokes claimed that he thought he had been “set up” as Mr Jenner had only raised the allegations with him about two days prior.
[37] In cross-examination, Mr Spokes stated that Mr Wayne Radoll, the Union delegate for the Shot crew had informed him that he had been named by the respondent in correspondence sent to the applicant concerning the allegations that ultimately led to his dismissal.23 Mr Spokes denied that during the “second crib” discussion with the applicant, the applicant had said to him, “you fuck with my family’s money, I will fuck with your life.” He further denied that he told Mr Jenner that “if I go on Fitzy’s crew, I’m going to walk out.”24 Mr Spokes subsequently described a statement attributed to Mr Jenner that “Spokesy acted like he had won lotto when he found out he didn’t get on Fitzy’s crew” as “rubbish.”25
[38] When Mr Spokes heard that his name had been mentioned in correspondence to the applicant concerning the allegations raised by Mr Jenner, Mr Spokes asked Mr Stroppiana why the respondent had not discussed the matter with him before writing to the applicant.26 Mr Stroppiana replied the respondent did not need to consult him.
[39] Mr Radoll is a shotfirer and the day shift delegate for the Union. When told the applicant had been stood down pending an investigation into alleged harassment and bullying, Mr Radoll and five other shotfirers met with Mr Peter Sharp, the respondent’s most senior manager in New South Wales and submitted, “what had happened to the applicant was inappropriate.”27
[40] Mr Radoll was aware the applicant was a member of a motorcycle club. However, the applicant did not talk about club activities at work. In that regard, he described as “untrue” the statements attributed to Mr Jenner set out in Ms Farr’s interview notes28 that the applicant “...always has his tablet out with photos of the Comancheros.” Mr Radoll contended the applicant and his work colleagues would watch YouTube on the tablet computer but did not appear to be looking at content concerning the Comancheros.29
[41] Mr Radoll stated he both called and chaired this meeting. He did not hear any comments about “dogs getting bashed” not did he hear the applicant say to Mr Jenner, “I have cut tongues out for less than this.”30 He further stated he would have remembered the comment “if it was said.”31
[42] Mr Radoll did not witness the alleged confrontation between the applicant and Mr Spokes concerning him taking a second crib break. However, Mr Radoll did recall that in or about April 2013, he had cautioned Mr Spokes not to take a second crib. Mr Spokes subsequently replied, “It’s all good; Bill has already spoken to me about it.”32
[43] Mr Radoll recalled an occasion when the applicant and Mr Smiles were discussing the allocation of work at a pre shift information meeting and Mr Smiles had mentioned that as a new employee, he had not had the chance “to take on many shots.” In that regard, he recalled the applicant had said to Mr Smiles, “Muscle up, grow some balls, put your hand up and take a shot.” Mr Smiles did not appreciate the comment and told the applicant to “Fuck off.”33
[44] Mr Radoll stated that given the dangerous nature of shotfiring, it was common for issues concerning individual or team performance to be “discussed openly and sorted out” in a frank manner.34
[45] Mr Radoll stated that vehicles were often in short supply due to the increased number of shotfirers engaged by the respondent. Vehicle allocation issues were normally resolved by the supervisor. It was Mr Radoll’s evidence that if he was allocated the ‘bomb truck’, he would not lend it to anyone unless it was being returned to the explosive’s magazine.35
[46] Mr Radoll did not find Mr Jenner to be an efficient shotfirer. It was rumoured he would start late and leave work early. He recalled Mr Jenner had a lot of time off over a short period. Mr Jenner had approached him on one occasion to discuss a matter where “he had been chipped because a Manager had seen him at McDonalds having a coffee when he was meant to be at work.”
[47] Mr Radoll described a “frank discussion” as a “brief discussion on the job... that’s dealt with virtually straightaway.”36
[48] In cross-examination, Mr Radoll stated the manner in which the applicant had addressed Mr Smiles was probably inappropriate although he personally did not take offence at the words used.37
[49] Mr Radoll contended the applicant had told him that Mr Spokes was absent from the shot taking a second crib break and that the applicant had discussed the matter with Mr Spokes.38 In relation to the crib room incident, Mr Radoll stated the meeting was quite subdued39 and during the course of that meeting, the word “dog” was not used to his knowledge.40 The duration of the meeting was only three or four minutes. He was unaware the applicant had said the word “dog” during the meeting.41
[50] In relation to the shotfirers’ petition in support of the applicant’s reinstatement,42 Mr Radoll said Mr Mepham handed it to him during the pre start meeting on 14 February 2014.43 When asking shift colleagues to support the applicant, Mr Radoll stated “It’s up to the individual to sign this document if they want to.”44 He further recalled telling colleagues that he found the applicant to be a good employee and had not witnessed him “harassing, intimidating or bullying anybody.”45 He acknowledged the names of some signatures were employed after the applicant’s dismissal.
[51] Mr Radoll was subsequently recalled to give further evidence. Mr Radoll said the petition signed by shotfirers employed by the respondent was prepared by the Union for Mr Mepham.46 In cross-examination, Mr Radoll stated that when seeking support for the petition, he informed employees:
Look, guys, there’s a petition here... You read it. It’s about working with Billy. If you’ve been harassed by him, I’m assuming you haven’t. It’s up to the individual to sign this document if they want to.47
and,
Well, I just got it and they said, “What’s it about?” I just said, “Okay, look, I found Mr Fitzpatrick a good employee and I’ve never witnessed Mr Fitzpatrick harassing, intimidating or bullying anybody.48
[52] No employee refused to sign the petition and it was later returned to Mr Mepham.49
[53] Mr Mepham is a production operator and the Union’s Site Lodge President. Shortly after the applicant was stood down pending an investigation into the allegations against him, Mr Mepham spoke to a number of shotfirers, including Mr Radoll who unanimously agreed “that it was not true.”50
[54] Mr Mepham took issue with certain observations set out in Mr Carlson’s Statement51 concerning a meeting with Mr Carlson, Ms Nichole Samuelson, the Bayswater Lodge Secretary and himself on 12 August 2013. In that regard, Mr Mepham contended Mr Carlson has misunderstood what he and Ms Samuelson had put to him concerning the safety of the crew if the applicant’s employment was terminated. Rather, Mr Mepham considered the discussion involved an acknowledgement by shotfirers that they had not witnessed any bullying or harassment. He stated he and Ms Samuelson told Mr Carlson that if the respondent considered the applicant guilty, then he should be put on a stage three final warning an “if he does it again he will have decided his own fate.”52 He expressed similar concerns that Mr Stroppiana had misinterpreted the position put by the Union in support of the applicant.53
[55] In cross-examination, Mr Mepham denied that in suggesting the applicant be put on a final warning, the Union was accepting the applicant was guilty.54 Rather, he and Ms Samuelson were “trying to cut a deal.”55
[56] Mr Mepham denied suggesting to Mr Carlson that if the applicant was dismissed, he was concerned about the safety of other members of the crew.56
[57] Mr Mepham acknowledged he initiated the petition in support of the applicant.
[58] Ms Samuelson deposed she had not met the applicant prior to his standing down in August 2013. Ms Samuelson stated that when the respondent interviewed Mr Smiles, Mr Colin Dolbel and Mr Steve Haylen, none stated they had personally observed any bullying and harassment of employees by the applicant.57 She also recalled Mr Stroppiana had asked the group whether they had heard stories about incidents involving the applicant that may have occurred. In that regard, it was Ms Samuelson’s evidence that she questioned why the respondent was seeking to investigate “stories” and hearsay, rather than what the employees concerned had actually observed. The respondent’s position at all times was “We will ask what we want.”58
[59] In relation to an alleged confrontation between Mr Smiles and the applicant in the crib room, Ms Samuelson said the relevant supervisor, Mr Hall had informed Mr Mepham and herself that he did not need to speak to either employee privately about the incident.
[60] Ms Samuelson stated that following the issue of a show cause letter to the applicant, a number of shotfirers advised her that they were concerned the respondent “was alleging they had said things they had not said or they were reporting rumours or manipulating what they had said about the applicant.”59 Despite requests for a copy of their record of interview, the respondent only agreed that shotfirers could “look over their record, but the respondent would not allow any changes.”60
[61] Ms Samuelson contended Mr Carlson’s characterisation of what he understood Mr Mepham and herself meant by suggesting the applicant should be placed on a final warning was wrong and further denied stating to Mr Carlson, words to the effect, “This is the safest option for everyone.”61 In that regard, Ms Samuelson suggested Mr Stroppiana’s evidence that she and Mr Mepham had suggested that other crew members “are fearful of what will happen if the applicant’s employment is terminated” was baseless.62
[62] Ms Samuelson deposed she attended Mr Smiles’ interview and was aware that he had never personally been harassed or bullied by the applicant nor had he ever witnessed such behaviour. She also recalled Mr Sowter had expressed to her a concern that he believed the respondent had “misrepresented what I have said.”63
[63] In cross-examination, Ms Samuelson confirmed that when the six employees including the applicant were stood down in August 2013, she did not offer any support to those employees or Mr Jenner.64
[64] With respect to her presence during the interviews between Mr Stroppiana and Messrs Smiles, Dolbel and Haylen, Ms Samuelson confirmed she had said, “We will ask what we want.”65 Ms Samuelson agreed that despite a number of earlier requests rejected by the respondent, Mr Carlson subsequently agreed that the individuals interviewed as part of the investigation process could access their record of interview, but could not make any changes.66 Mr Carlson later said the records of interview could not be amended.67 Ms Samuelson contended the employees interviewed wanted to ensure their statements had been recorded correctly.68
[65] Ms Samuelson agreed she was aware that Mr Sowter had claimed his position had been misrepresented in the record of interview. However, she did not voice that concern with Mr Stroppiana or Mr Carlson at the time.69 Ms Samuelson later contended that such representations “wouldn’t make an ounce of difference.70
[66] Ms Farr is a Production Superintendent with the respondent. Her statement deals extensively with the complaint of bullying and harassment raised by Mr Jenner commencing on 18 July 2013 when Mr Jenner first approached her concerning certain alleged threats to his life.71
[67] It was Ms Farr’s evidence that during her meeting with Mr Jenner on 18 July 2013 and 23 July with Mr Stroppiana and herself, Mr Jenner was concerned about any investigation “because they will all know it was me who raised the issue.”72 She observed Mr Jenner was upset at the time.
[68] On or about 29 July 2013, Mr Stroppiana called Ms Farr to advise her that the respondent had decided to conduct an investigation into Mr Jenner’s allegations. In a subsequent telephone conversation, Mr Jenner alleged some other members of the blast crew had been mistreated or harassed by the applicant. Mr Jenner reluctantly agreed to participate in a formal investigation interview in Port Macquarie on 31 July 2013 with Mr Carlson and herself. Hand written and typed records of interview were attached to her statement.73 During the course of the interview, Mr Carlson asked most of the questions and Ms Farr took the relevant notes.
[69] Ms Farr stated the interview with Mr Jenner and other employees followed a “Guidelines to Interview” document prepared by Mr Stroppiana.
[70] Ms Farr noted the applicant attended a BHP Code of Conduct training session on 14 May 2013. Issues raised during that training included acceptable and unacceptable behaviours and bullying and harassment.74 Further, during the course of the training session she had stressed to employees that a breach of the Code of Conduct “is the easiest way for you to get yourself sacked from this Company.75
[71] Records of interview with Mr Jenner, Messrs Adam Whatham, Brendan Leadley, Barry Sowter, Brad Jenkinson, Dean Hanson and Michael Southcombe were attached to her statement. In response to the following questions put Messrs Whatham, Leadley, Sowter, Jenkinson, Hanson and Southcombe as part of the formal interview process:
Have you witnessed any employees being bullied, harassed or threatened;
Have you been subjected to any harassment or bullying from other employees;
Have you heard of any incidents where employees have been bullied, harassed or threatened?
The overall response of those interviewed to these questions was “No.”
[72] Mr Sowter qualified his response to question 4 by suggesting there may have been some harassment or bullying 12 months ago. Mr Hanson stated he had only heard about the second crib incident involving the applicant and Mr Spokes. Mr Spokes told him he was upset by the incident. In response to the question, “Did he say he felt threatened?” Mr Hanson replied, “No, he had a laugh saying “what a bloody weirdo”, it did frustrate him.” Mr Sowter provided a broad response to questions concerning tensions within the crew, vehicle use and other questions put concerning relationships within the crew. There was no direct evidence concerning any threatening or intimidating behaviour within the crew.
[73] In cross-examination, Ms Farr agreed that other than Mr Jenner, there were no other complaints made by employees concerning the applicant’s alleged conduct.76 She also agreed that it was not uncommon for the respondent’s employees to “use come fairly robust language with one another and to swear at one another”77 or, call names. Ms Farr agreed that employees do not generally behave that way in her company because she was part of management. Rather, supervisors would be best placed to observe such behaviours.78
[74] Mr Carlson is the respondent’s Manager, Production, Coal and Services. His statement79 set out in detail the investigation concerning the allegations against the applicant and a number of other employees initially stood down following Mr Jenner’s complaints. Mr Carlson was also responsible for the recommendation that the applicant be dismissed.
[75] Mr Carlson deposed Mr Stroppiana and himself were nominated as the primary investigators.
[76] Mr Carlson stated employees against whom allegations of bullying and harassment had been made were stood down with pay during the investigation.80 He also arranged for a security company to monitor Mr Jenner’s Muswellbrook home as Mr Jenner was particularly concerned about the investigation as the applicant was a member of the Comancheros Motorcycle Club.81
[77] Mr Carlson explained in some particular detail the interview arrangements concerning Mr Jenner and the six employees, including the applicant, stood down for alleged bullying and harassment.82
[78] Mr Carlson referred to the Interview Guidelines document prepared by Mr Stroppiana and used by the investigators as a generic template for employee interviews.
[79] During the course of his interview with the applicant, Mr Carlson said the applicant had alleged Mr Jenner had sought to sell him ephedrine and firearms. In relation to the firearms allegation, Mr Jenner told Mr Carlson that a friend had his firearms confiscated by the police. The police refused to return the firearms to his friend but allowed the friend to sell them. Mr Jenner had contended he was merely helping his friend. Mr Carlson acknowledged a local newspaper article had largely corroborated Mr Jenner’s version of events. When interviewed, Mr Jenner denied that he had ever approached the applicant or any other employee to sell ephedrine.83
[80] While Ms Samuelson had sought copies of the records of interviews, Mr Carlson advised her that interviewees were welcome to look at their record of interview, but could not take a copy away.84 He further stated on or around 12 August 2013, Ms Samuelson sought a copy of Mr Sowter’s statement. Mr Carlson advised she could examine the statement in his office but a copy was not available. Later that day, Ms Samuelson advised him that Mr Sowter no longer required a copy of his statement nor did he wish to change anything he had said during the interview.85
[81] The recommendation to terminate the applicant was made on the grounds that he had breached the Code of Conduct, specifically Section 2, Bullying and Harassment:86
[84] Mr Carlson noted that Mr Jenner was concerned for his safety and had resigned from the respondent on 28 August 2013.91
[85] Mr Carlson also stated he spoke to Mr Jenner on or around 2 April 2014. Mr Jenner expressed to him he was concerned for his family as a result of making the allegations against the applicant and was also facing financial difficulty. Mr Jenner made it clear to Mr Carlson that he was not prepared to be a witness in these proceedings.92
[86] Mr Carlson confirmed that while he did not participate in all of Ms Farr’s interviews with Mr Jenner or Messrs Whatham, Leadley, Sawter, Jenkinson, Hanson or Southcombe,93 he depended on the notes of those interviews to make his findings concerning the applicant’s conduct.94
[87] In relation to vehicles, it was Mr Carlson’s evidence that the relevant blast crew supervisor met with the blast crew each morning to outline the day’s work and allocate employees and vehicles.95
[88] In cross-examination, Mr Carlson agreed that in circumstances where a senior shotfirer who is in charge of the shot observes something unsafe, the Code of Conduct directs him or her to correct the person who is working in an unsafe manner or, let the supervisor know.96 He further agreed that in the absence of the relevant supervisor, the senior shotfirer “would be expected to pull people who are performing poorly or being lazy” into line.97 Mr Carlson also agreed that a “one off issue” was one where it was probably not necessary for the senior shotfirer to discuss the matter with the appropriate supervisor.98
[89] Mr Carlson confirmed the findings of the investigation put to the applicant in correspondence dated 9 August 2013 were distilled from the investigation interviews and follow up interviews with a number of employees including Mr Jenner, Mr Reichart and Mr Frank Bowther.
[90] In relation to allegation 1(a), Mr Carlson agreed that if an employee threatened to “cut tongues out” in the context of a crib meeting, he would expect the recipient of the threat to raise the matter with a supervisor.99 He further agreed Mr Jenner had made no such complaint prior to July 2013.100 Mr Carlson further agreed there was no evidence from Mr Smiles, who shared a house in Muswellbrook with Mr Jenner or the other 30 blast crew members interviewed concerning the allegations, to support Mr Jenner’s allegation that be had actually received the “cut tongues out” threat.101 Mr Carlson agreed the respondent could not corroborate this particular allegation.
[91] Mr Carlson acknowledged that Mr Jenner had kept the alleged “tongues” threat to himself for approximately 8 months before informing Mr Reichart that no one would give him lift to the job site after a crib meeting one day in November 2012. He further agreed it was fairly extraordinary that a person would make a complaint about not getting a lift and not make a complaint when threatened that someone proposed to “cut their tongue out.”102 Mr Carlson noted that Mr Jenner at the time did not have confidence that the issue would be satisfactorily resolved.103
[92] In relation to allegation 1(b), Mr Carlson agreed that no blast crew member present at the time the “tongues” threat was allegedly made actually overheard the conversation as alleged.104 Mr Carlson further agreed that no information had been provided by the investigation which corroborated the “tongues” threat allegedly made by the applicant to Mr Jenner. Nor was anyone asked whether they heard the threat.105 He also agreed there was no information to support Mr Jenner’s view that the allegation was put to him “when he was away from everybody else.”106 Mr Carlson confirmed that Mr Reichart could not recall Mr Jenner making any complaint to him.107
[93] Mr Carlson agreed that comments set out at page 329 of Mr Stroppiana’s witness statement to the effect that Mr Smiles thought the applicant was “animated” during the crib meeting in November 2012 do not corroborate the allegations that the “applicant had threatened to bash people.”108 He further agreed that Mr Jenner did not allege that the applicant had threatened to bash anybody.109 Mr Carlson confirmed the only person who had suggested the applicant engaged in such conduct had resigned and was not called by the respondent to give evidence.110
[94] Notwithstanding Mr Carlson’s description that the alleged incident between the applicant and Mr Spokes as a confrontation, he agreed Mr Spokes had not described this exchange as a confrontation.111 He further agreed that Mr Spokes had told the investigation team that he had never been the subject of bullying or threatening behaviour when he was at work.112 Moreover, the applicant did not deny having an exchange with Mr Spokes about him taking a second crib break that he was not entitled to take. Mr Carlson further agreed that Mr Spokes was not questioned whether the applicant had in fact told Mr Spokes, “If you fuck with my family’s money, I’ll fuck with your life.”113
[95] When Mr Carlson was shown Mr Spoke’s statement, the following exchange occurred:114
At paragraph - starting from paragraph 4?---Yes.
“Never told Mr Jenner that the applicant threatened my life, nor has the applicant ever threatened my life”?---Okay.
Does that cause you to reconsider whether or not you could find substantiated allegation 1(b)?---Yes, it does about that specific point.
So do we take it then that you no longer are satisfied that that allegation is proved? It’s a question for the Commission ultimately?---Yes.
[96] Mr Carlson subsequently agreed that allegations 1(a) and 1(b) had not been corroborated and suggested respondent had “just accepted Mr Jenner’s version of events”.115 He agreed Mr Spokes did not say he was offended or humiliated which is a requirement of the Code of Conduct.116
[97] In relation to allegation 1(c) concerning the Orica truck incident and the allegation the applicant had stated to Mr Sowter, “Fucking dobber, what are you going to do? Just wait until we are out the gate, and I am on my bike, then you will know how dangerous I am”, Mr Carlson was unaware the applicant and Mr Sowter had known each other for approximately 34 years.117 Nor did Mr Sowter (or any other employee present at the time)118 make any complaint or indicate at the time that he found the alleged comments offensive or humiliating as required by the Code of Conduct. Moreover, when interviewed, Mr Sowter did not say he had perceived such comments as a threat.119 Further, Mr Carlson also confirmed that the respondent did not seek to verify the alleged threatening, offensive or humiliating comments made by the applicant with any of the 31 other members of the blast crew.120 The following exchange subsequently occurred:121
If you had been satisfied that the threatening or intimidating behaviour had not occurred, but the matters in 2(a), (b) and (c) and maybe 3, were substantiated, the applicant would likely have not been dismissed but would have been the subject of some other disciplinary action, wouldn’t it?---Without the first 1(a), (b) and (c)?
Yes?---Yes, there would have been another (indistinct)
Indeed, Brad Bullen was one of the three shotfirer workers who was the subject of part of this investigation process, wasn’t he?---Yes.
Again Mr Jenner had suggested that Mr Bullen this time had made a threat to his life. That’s right, isn’t it?---Yes.
Mr Bullen denied it?---Yes.
You don’t seem to describe this in the correspondence that you sent to Mr Bullen, but did you accept that Mr Bullen had made a threat to Mr Jenner’s life?---We were unable to substantiate those claims so there was - there was one version of the story and another and there were no witnesses so it was very difficult to find on a single event what the outcome was.
All right. So again we have the difference between Mr Bullen and the applicant being a number of allegations?---A number of allegations.
Where you have one word versus another. Yes?---Yes, and there’s the pattern of behaviour - - -
And most of it - sorry, I cut you off?---Yes.
In most of the allegations it’s Mr Jenner who is making the allegation, isn’t it?---In a number of them.
And in each one of them they’re not corroborated. Right?---Yes.
So again there’s a series of allegations which you rely upon, allegations and largely made by Mr Jenner that you relied upon in order to say that these allegations were found proven. That’s right, isn’t it?---Relied on a number of the comments from Mr Jenner, yes.
[98] Mr Carlson agreed that when questioned by Ms Farr, Mr Sowter did not submit any incidents where “employees have been bullied, harassed or threatened.”122
[99] Mr Carlson agreed that allegation 2(a) raised by Mr Jenner, that the applicant had been “witnessed to have motioned to kick and punch Barry Sowter off his chair” during the course of a crew meeting123 and was said to have told Mr Sowter, “Geriatric old cunt, you should hurry up and retire” had not been corroborated.124 Mr Carlson stated the respondent had accepted Mr Jenner’s word concerning these two particular allegations. It had not sought to verify or check the allegations with Mr Sowter.125 He agreed Mr Sowter should have been asked whether the allegations were true.126
[100] Mr Carlson did not disagree with the proposition that this allegation by Mr Jenner had not been corroborated nor was it subject to a broad based inquiry involving other employees present at the relevant crib meeting.127 Moreover, there was no reference to any threatened “punch” in the investigation interview materials.128
[101] In relation to the allegation 2(b), which concerned the applicant’s alleged statement to Mr Smiles during a pre-shift meeting in July 2013, “If you had any balls ask for your shot back,” Mr Carlson agreed Mr Smiles did not make a complaint129 or describe the applicant’s conduct in terms of bullying or harassment;130 Nor did any other crew member present at the pre-shift meeting make a complaint. Mr Carlson determined the applicant’s conduct towards Mr Smiles was bullying or harassing conduct in breach of the Code of Conduct “Because (it was) in context with the other events that occurred”:131
“...initiating a response like that and throwing out provocative language, that is something that we don’t accept.”132
[102] Mr Carlson agreed that the supervisor at the time, Mr Hall had described the applicant’s conduct as inappropriate and had corrected the behaviour of both the applicant and Mr Smiles at the time without further investigation.133However, while Mr Carlson considered the applicant’s conduct harassment.134 Mr Carlson subsequently agreed Mr Smiles had not described the verbal exchange between the applicant and himself as bullying or harassing behaviour.135 Rather, it was a heated exchange.136 Mr Carlson confirmed he regarded the applicant’s conduct as harassment and therefore inappropriate conduct under the Code of Conduct.137 Mr Carlson also agreed that the applicant did not regard Mr Smiles’ “Fuck off” retort as bullying or harassing behaviour138 and that in response, the applicant did not swear at him.139
[103] In relation to the allegation 2(c) that the applicant was responsible for posting Facebook messages and photographs of a disparaging nature concerning Mr Jenner and Mr Jeremy Burgess, Mr Carlson agreed that the relevant Facebook messages, which included two photographs, were essentially an exchange between the applicant and a Facebook “friend”140 in circumstance where someone other than the applicant had posted the alleged offensive material. Mr Carlson subsequently confirmed the respondent was not suggesting the applicant had shown the Facebook page to other employees. However, “people that were on the crew that were friends with him had shown it to the other individuals.”141 Mr Carlson subsequently agreed that Mr Burgess had not made a complaint against the applicant concerning the Facebook page.142
[104] Mr Carlson agreed that in the event the Commission determined allegations 1(a), 1(b) and 1(c) did not occur, but the allegations framed under paragraphs 2(a), 2(b), 2(c) and 3 were substantiated, the applicant would have been subject to disciplinary action other than dismissal.143
[105] With reference to certain behaviours relied upon by the respondent concerning the allegation that the applicant had not released his vehicle for use by other crew members, Mr Carlson agreed that historically, including the time of the applicant’s dismissal, vehicles were allocated on the basis of seniority and those employees allocated a vehicle were required to take care of that particular vehicle.144 Mr Carlson also agreed the applicant did not fall into the group of employees the respondent had investigated for their reluctance to allow other employees to use their allocated vehicles.145 He acknowledged that there were some employees who would not share their vehicles whilst others would “openly (share) those vehicles for the benefit of the business.”146 Mr Carlson later acknowledged “some members of the team would restrict the use but it wasn’t universal.”147
[106] Mr Carlson agreed the applicant was not directly informed that it was Mr Jenner who had raised complaints against him. He also confirmed that Mr Jenner did not reduce his allegations to writing and the respondent had relied on the investigation process to “capture” them.148
[107] Mr Stroppiana is the respondent’s Manager, Human Resources. Mr Stroppiana’s evidence included a summary of his discussions with Mr Jenner concerning the request that Mr Jenner should make a statement and appear in these proceedings as a witness. Those discussions commenced in early December 2013 and continued on 20, 23 and 7 January 2014. On 8 January 2014, Mr Jenner’s solicitor contacted Mr Stroppiana to advise that his client had received death threats and had been advised by local police “not to get involved in the unfair dismissal hearing and that it would be best for him to disappear.”149
[108] At paragraphs 10-18 of his statement, Mr Stroppiana set out in considerable detail the various steps he initiated to obtain witness statements from employees who had participated in the investigation concerning the bullying and harassment allegations against the applicant. Those employees included Mr Dean Hanson, Mr Sowter, Mr Steven Haylen, Mr Smiles, and Mr Jeff Hanlon. However, no employee agreed to discuss such matters with the respondent’s legal representative on site at the time.
[109] Mr Stroppiana referred to the respondent’s Code of Business Conduct: Working with Integrity. He deposed the Code of Conduct required all employees to undertake a 1.5-2.0 hour training course and annual refresher training. In that regard, the applicant had undertaken refresher training in March 2010, April 2011, March 2012 and April 2013.150
[110] Mr Stroppiana set out in detailed chronological order his discussions with Ms Farr in July 2013 concerning Mr Jenner’s complaint, subsequent discussions and correspondence to the General Manager, Mr White, the investigation process, including the preparation of interview guidelines, employee interviews and investigation findings.
[111] Mr Stroppiana recounted a conversation between Mr White, Mr Mepham, Ms Samuelson and himself on 12 August 2013 where he considered Mr Mepham expressed a concern that “People are fearful of what will happen if you terminate his (Mr Fitzpatrick’s) employment.”151 Mr Stroppiana also recalled Ms Samuelson’s statement at the time to the effect that the respondent should consider issuing the applicant with a final written warning, propose that he apologise to the crew and return to work on a performance management plan.152
[112] Mr Stroppiana detailed the ‘Show Cause’ process concerning the applicant and confirmed that he agreed with Mr Carlson’s recommendation that the applicant be dismissed.153 Mr Stroppiana further maintained that the applicant was told who specifically had raised complaints against him. In that regard, he relied on correspondence sent to the applicant on 2 August 2013 setting out the allegations then subject to the pending investigation.154
[113] In cross-examination, Mr Stroppiana was adamant Mr Mepham had used the word ‘fearful’ when describing the concerns of Union members if the applicant was dismissed.155 He also confirmed his view that the attempt by Ms Samuelson to broker a deal and have the applicant return to work subject to a performance management plan was an admission by the Union that the applicant had done something wrong.156
[114] Mr Stroppiana confirmed the applicant was terminated following a finding that he had engaged in a pattern of intimidating and threatening behaviour. He stated the applicant was terminated for the reasons set out in Mr Carlson’s correspondence dated 9 August 2013. Those reasons included allegations 1(a), 1(b) and 1(c).157
[115] Both the applicant and respondent put extensive written and oral submissions to the Commission in support of their respective positions. I have given consideration to those submissions and the authorities relied upon in determining this matter.
[116] The applicant contended the investigation was flawed. There were no formal records of interview made. Rather, the investigation process relied on the notes taken by three management representatives and an administration assistant. No employee interviewed as part of the investigation had adopted the respondent’s interview summary as a correct account of what he or she had actually told the company investigators. Accordingly, the applicant contended the interview summaries relied upon by the respondent to prove the applicant had engaged in a “corroborated pattern of threatening and intimidating behaviour”158 were largely hearsay and the Commission should take care in exercising its discretion to receive hearsay evidence: The Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd.159
[117] The applicant submitted the Commission is not bound by the rules of evidence. However, that does not mean the Commission considers the rules of evidence irrelevant. Where alleged misconduct gives rise to dismissal, the Commission must determine whether the alleged conduct took place and what it involved: King v Freshmore (Vic) Pty Ltd.160
[118] The applicant denied he engaged in the conduct alleged and the allegations relied upon for his dismissal had not, on the admission of Mr Carlson, been corroborated.161
[119] In cross-examination, Mr Carlson agreed that in the event the applicant was found not to have engaged in the threatening and intimidating behaviour as alleged in paragraphs 1 (a) – (c) of the termination letter, the applicant would not have been dismissed but rather, subjected to an alternative form of discipline.162
[120] The applicant acknowledged that he and other crew members had described the conduct of someone reporting to management what had occurred during the course of a Union meeting in or around November 2012 as a “dog act” but denied he had said words to the effect that “the dog or dogs would be bashed” or as Mr Jenner had alleged he had said, “I have cut tongues out for less than this.”163
[121] The applicant also denied saying to Mr Spokes, “If you fuck with my family’s money, I will fuck with your life.” He did however agree that he had a candid conversation with Mr Spokes about him taking a second crib break, a break that did not apply to nine hour shift workers.164
[122] The applicant denied that he had either motioned or sought to kick Mr Sowter off his chair as alleged during a crew meeting or call Mr Sowter a derogatory name or suggest that he should hurry up and retire early.165
[123] The applicant argued that he did not bully or harass Mr Smiles. He admitted having a conversation with Mr Smiles where he said Mr Smiles should “Grow some balls and put up your hand and take a shot.”
[124] With regard to the alleged disparaging comments made against Mr Jenner and Mr Burgess on Facebook, the applicant could not find the evidence alleged by the respondent on his Facebook page and sought detailed confirmation of the allegation so that he could interrogate his Facebook account to establish the basis of the allegation.
[125] The applicant denied that he had acted inappropriately or harassed any crew members concerning the use of the respondent’s vehicles.
[126] The allegations concerning the “dog act” and the “cut tongues” statement to Mr Jenner were strongly denied by the applicant. They are hearsay and uncorroborated. Moreover, there is no evidence before the Commission that Mr Jenner made a complaint in or around November 2012 when the comment was allegedly made to management or the police. Mr Jenner’s explanation that he did not make a complaint the time on the grounds that he thought management would not act on the matter was not believable.
[127] The applicant submitted Mr Jenner’s allegations changed over time:
18 July 2013
Jenner alleges he had been told, “cut cunts tongues out – watch what you do.”166
25 July 2013
In a discussion with Mr White, the applicant is alleged to have said, “I have cut cunts heads off and their tongues out.”167
31 July 2015
In a discussion with Mr Carlson and Ms Farr, Mr Jenner stated, “… Fitzy walked past and looked me in the eye in a way and said, “I’ll cut cunts tongues out for this.”
[128] In cross-examination, Mr Carlson stated he did not discern the three variations of events as described by Mr Jenner when making the finding that the conduct alleged by Mr Jenner had occurred. Mr Carlson did, however, agree and accept that where a person’s version of events changes was a relevant consideration when conducting a fact-finding exercise.168
[129] In cross-examination, Mr Carlson confirmed Mr Spokes had not made any complains about the applicant’s alleged threat, nor was Mr Spokes asked about the alleged incident when interviewed as part of the investigation on 30 July 2013.169 During that interview, Mr Spokes was asked whether he had been subject to bullying or harassment behaviour. He said that he had not been subject to such conduct.170 Further, it was Mr Spokes’ evidence that he did not tell Mr Jenner that the applicant had made any threats against him.171
[130] Mr Carlson also accepted in cross-examination that the respondent had accepted that a senior shotfirer should correct the behaviour or a junior shotfirer to ensure safety and performance expectations were maintained.172 In that regard, Mr Carlson had accepted in cross-examination the fact that Mr Spokes denied such a threat had been made caused him concern and he was no longer satisfied the allegation was proven.173
[131] In cross-examination, Mr Carlson stated he was not aware that the applicant and Mr Sowter had known each other for some 34 years.174 Mr Sowter had made no complaint against the applicant in relation to the Orica truck incident. In that regard, the applicant admitted he told Mr Sowter to mind his own business but denied threatening, bullying or harassing him. Further, Mr Carlson accepted in cross-examination that Mr Sowter had never said the incident as alleged actually occurred nor did he make any complaint concerning such conduct.175 Mr Sowter was not questioned concerning the allegations when interviewed and none of the 31 other persons interviewed as part of the investigation were asked whether they had witnessed the Orica truck or alleged “kick and punch Barry Sowter off his chair” incidents.176
[132] Mr Carlson also conceded in cross-examination that Mr Smiles had made no complaint concerning the applicant’s conduct concerning the “take a shot” discussion.
[133] The applicant submitted the Code of Conduct describes “bullying” as “repeated behaviour directed towards an individual or group of individuals and creates a risk to health and safety”. Further, “harassment” is defined as “an action, conduct or behaviour that a reasonable person would find unwelcome, humiliating and offensive.” In this matter, there is no evidence that Mr Smiles was offended. The exchange that took place between the applicant and Mr Smiles did not amount to bullying or harassment.
[134] The allegation by Mr Jenner that the applicant did not release his allocated vehicle as required to other blast crew members was denied. However, the applicant did not deny he had a preference to keep control of the vehicle. Further, he denied he had refused to permit other crew members to use the vehicle.177 The applicant contends there is no evidence to support Mr Jenner’s complaints and in that regard, Mr Carlson’s evidence was that he had no reason to doubt the applicant’s evidence that no supervisor had ever raised a concern with him about the applicant’s refusal to release his vehicle.178
[135] The applicant urged the Commission to determine there was no valid reason for termination and the applicant’s dismissal was harsh, unjust and unreasonable. Reinstatement was the appropriate remedy.
[136] There was no valid reason to dismiss the applicant as he had not engaged in bullying or harassment as defined by the Code of Conduct.
[137] The applicant had worked for the respondent for almost 10 years. During that time, he had never been warned about misconduct of the kind that lead to his dismissal or any other form of misconduct. Nor had he been warned or counselled during that period. Indeed, Mr White, the General Manager, regarded him as a “very good shotfirer.”179
[138] The investigation conducted by the respondent was flawed. Rather than seek to elicit information that would enable an objective assessment of the allegations made, the investigation was directed to eliciting information that would support the allegation made.
[139] The investigation had proceeded on the basis of an initial broad based inquiry that had asked a set of general questions. However, none of the specific allegations were the subject of investigation so as to enable the respondent to establish the facts. Rather, the respondent simply took the allegations made as part of the initial interviews with the blast crew employees as fact without conducting any follow-up investigations. The applicant should be reinstated on the grounds that his dismissal was harsh, unjust and unreasonable.
[140] The applicant was terminated following a determination by the respondent that he had engaged in a pattern of threatening and intimidating behaviour against other employees. The alleged conduct was in breach of the Code of Conduct and amounted to serious misconduct. The applicant had received training, including refresher training concerning the Code of Conduct.
[141] The respondent’s decision to dismiss the applicant followed an extensive investigation process led by Mr Carlson and Mr Stroppiana. The respondent determined specific allegations put to the applicant during the investigation and the subsequent disciplinary process were substantiated:
[142] The respondent submitted the pattern of threatening and intimidating behaviour relied upon to dismiss the applicant comprised small incidents, medium concern incidents and incidents of a significant concern.180 Those events in their totality established the pattern of behaviour relied upon. However, the Commission does not have to be satisfied that each and every event alleged against the applicant has been proven to the requisite standard.181
[143] It was the respondent’s case that the Commission will find that a valid reason existed for the applicant’s dismissal if it is satisfied that sufficient incidents concerning threatening and intimidating behaviour have been proven to the requisite standard and the cumulative effects of that conduct was a clear breach of the Code of Conduct that warranted his dismissal.182
[144] The respondent recognised that allegations 1(a), (b), and (c) “are at the heart of their case.”183
[145] The respondent submitted neither Mr Stroppiana or Ms Farr were challenged with respect to their respective notes and or interview summaries and the Commission should be confident that what has been recorded there is what was said or words to the effect of what was said.184 The respondent referred to a number of interview summaries, including the interview with Mr Adam Thrift, Mr Brad Jenkinson, Mr Smiles, Mr Hanson and Mr Hall to provide examples of the threatening and intimidating behaviour relied upon in determining that the appropriate disciplinary action was to terminate the applicant.
[146] The Commission is not bound or constrained by any technical rules of evidence. Rather, it has discretion to admit what would not normally be admissible under the rules of evidence. The respondent referred to the decision in Australian and International Pilots Association v Fair Work Australia and others185 where Buchanan J observed:
...it is important to appreciate that FWA is not bound by any technical rules of evidence (s.591); it may inform itself in relation to any matter before it as it thinks fit (s.590); it must perform its functions quickly, informally and without unnecessary technicalities (s.577)
The Commission should proceed and deal with matters without unnecessary technicality and as informally as the circumstances of the case permit: Coal & Allied Mining Services Pty Ltd v Lawler.186
[147] The respondent referred to the Full Bench decision in Dardanup Butchery at [30]:
When a tribunal member is confronted with an attempt to call hearsay evidence from a manager as to the attitude of employees to participating in discussions with a permit holder, the member should give serious consideration as to whether evidence going to that issue is more properly received directly from one or more employees rather than by hearsay evidence of that sort and decline to receive the hearsay evidence unless a satisfactory explanation is provided as to why it is not appropriate to call direct evidence from one or more employees. This is particularly so in a workplace where there is little or no union penetration and thus little or no justification for fearing some form of reprisal for taking a public stand against the union.
[148] The respondent sought to distinguish the circumstances of that case from the unionised work environment of the respondent and urged the Commission to accept that the respondent has a satisfactory explanation why direct evidence has not been called.
[149] The respondent sought to rely upon the High Court decision in R v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte Angliss Group187 to support the proposition that the Commission is required to “get to the heart of the issue… and receive such evidence as you need to get to the heart of the issue.”
[150] The respondent considered the various notes of interview prepared by Mr Stroppiana and Ms Farr were not subject to challenge in cross-examination188 and can be relied upon to support the respondent’s decision to dismiss the applicant on the grounds that there was a pattern of threatening and intimidating behaviour.
[151] Employees interviewed by the respondent were able to view their Statements and amend them if required.189 Employees were also afforded the opportunity to talk to the respondent’s lawyers.190 The respondent sought to rely on Ms Samuelson’s statement to Mr Carlson that Mr Sowter “doesn’t want to review his statement and doesn’t want to change anything he said in the interview.”191
[152] The applicant agreed in cross-examination that he had received Code of Conduct training and had further agreed that he understood the standard of behaviour required. Specifically, the applicant agreed that he must ensure that his behaviour was not perceived by others as offensive, insulting, intimidating, malicious or humiliating.192 However, notwithstanding that training, the applicant “imposed his personality, wishes and desires upon his crew.” He intimidated Mr Jenner and others contrary to the Code of Conduct. Employees were reluctant to give evidence against the applicant. The evidence of Messrs Jenner, Sowter and Spokes was indicative of the relationship the applicant had with the blast crew.193
[153] The respondent submitted that in the event the Commission determined there was no valid reason for termination, the respondent opposed reinstatement.
[154] The respondent referred to the evidence of Mr Stroppiana concerning his discussions with Mr Jenner as follows:194
Early December 2013
Mr Jenner told he will be required to give evidence. Mr Jenner appeared reluctant to give evidence.
20 December 2013
Telephone call to Mr Jenner, who subsequently expressed concern about the safety of his family and himself.
23 December 2013
Mr Jenner informs Mr Stroppiana he did not think he can get involved.
30 December 2013
Mr Jenner informs Mr Stroppiana by text message that he was not prepared to provide a statement.
6 January 2014
Mr Jenner confirms he is not going to provide a statement and expresses a concern about his family’s safety.
7 January 2014
Mr Stroppiana raises importance of Mr Jenner giving evidence and potential to subpoena him.
8 January 2014
Mr Jenner’s solicitor telephone Mr Stroppiana to confirm Mr Jenner is not prepared to assist and in response to death threats, the local police have advised Mr Jenner not to get involved in the unfair dismissal hearing.
[155] Mr Stroppiana also spoke to Mr Hanson, Mr Sowter, Mr Haylen and Mr Hanlon on 17 December 2013 and Mr Leadley, Mr Smiles, Mr Sowter and Mr Hanson on 17 January 2014.
[156] Section 385 of the Act relevantly provides that a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.
[157] Section 387 of the Act sets out the criteria to be considered by the Commission in determining whether a particular dismissal is harsh unjust or unreasonable and provides the following criteria must be taken into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[158] In determining this matter, I have given consideration to the evidence and submissions of the parties. In particular, I have found the evidence and frank admissions of Mr Carlson pivotal.
[159] The onus rests with the respondent to establish that the misconduct as alleged took place and it constituted a valid reason for dismissal: Culpeper v Intercontinental Ship Management Pty Ltd.195
[160] The Commission is required to consider whether the applicants’ actual conduct was of sufficient gravity to constitute a valid reason for termination: Qantas Airways Ltd v Cornwall.196 The Commission’s consideration involves a close scrutiny of the evidence and requires clear, cogent or strict proof that the allegations relied upon to dismiss the applicant have been made out: Briginshaw v Briginshaw:197 Neat Holdings v Karajan Holdings.198
[161] In King v Freshmore, the Full Bench of the then Australian Industrial Relations Commission stated:
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
...
[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.
...
[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.
[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.
[162] In Selvachandran v Peteron Plastics Pty Ltd,199 Northrop J considered the dismissal provisions of the Industrial Relations Act 1998 and determined:
...the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based up the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed upon them. The provisions must ‘be applied in a practical and commonsense way to ensure that’ the employer and employees are each treated fairly...200
[163] It was submitted that the applicant was not guilty of serious misconduct relied upon by the respondent as justification for his dismissal.
[164] Despite efforts by the respondent to encourage Mr Jenner to give evidence in this matter, he refused outright to do so. As a result, the applicant was unable to test the various allegations raised by Mr Jenner against him. The first time that the applicant was given an opportunity to see and test the complete materials relied on by the respondent was in the proceedings before the Commission in this matter. Given the gravity of those allegations, the applicant has suffered a degree of unfairness in not being able to cross examine Mr Jenner.
[165] The respondent is entitled to expect compliance with lawful work directions given to employees and its express workplace policies and procedures. It also follows that not all breaches of such policies will result in dismissal.
[166] The allegations put to the applicant during the investigation were extremely serious. However, the role of the Commission in determining this matter is not whether the respondent had a reasonable belief that the applicant engaged in the conduct as alleged, but rather, whether the evidence is of sufficient quality to establish that he actually did engage in that conduct. The standard of proof to be applied to establish whether the applicant engaged in the alleged conduct is the balance of probabilities.
[167] In Neat Holdings Pty Ltd, the High Court observed:
When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can be validly said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.201
[168] The show cause letter given to the applicant on 9 August 2013 set out the following findings under paragraphs 1(a), (b) and (c); 2(a), (b) and (c) and 3 :
1) The respondent determined the allegation that on various occasions the applicant had made threatening and intimidating comments to and about other employees which were of a violent nature - threatening their safety and wellbeing was substantiated on the balance of probabilities:202
(a) In November of 2012, a meeting was called by an employee in the old crib room for all blast crew members to attend. An employee asked the supervisor Kenny Reichart at the time to leave the room and made a statement along the lines of: “There is a dog on crew who is going back to management.”
At this meeting you were witnessed and heard by other employees to respond to this comment by stating that the “dog or dogs would get bashed” if they were found out. In the same meeting you were also seen and heard to have made a comment to Dean Jenner along the lines of: “I have cut cunts tongues out for less than this.”
[169] The applicant freely admitted describing the action of the employee concerned as a “dog act”. However, he denied stating the phrase as alleged by Mr Jenner. In cross-examination, Mr Carlson agreed the investigation process did not corroborate the “cut tongues” threat as alleged by Mr Jenner nor, as part of the investigation, was any employee asked whether they had heard the statement. Moreover, Mr Carlson confirmed the relevant supervisor, Mr Reichart, could not recall whether at the time, Mr Jenner had raised a complaint with him. In the absence of corroboration, or assistance from Mr Jenner, I am therefore unable to find that on the balance of probabilities, the conduct as alleged by Mr Jenner actually occurred.
(b) In April of 2013, you were seen to have engaged in a confrontation with another employee Brett Spokes. The confrontation was regarding the fact that Brett Spokes took a second crib break. The comment you were reported to have made at the time was: “If you fuck with my family’s money, I will fuck with your life.”
[170] The applicant denied the allegation. However, he did agree that he had spoken to Mr Spokes about his taking of a second crib break. Mr Spokes was aware that Mr Jenner had told Ms Farr that the applicant had threatened him. However, Mr Spokes was adamant that he did not tell Mr Jenner that the applicant had threatened him nor had the applicant ever made such threats. When interviewed by the respondent during the investigation process, Mr Spokes denied he, or other members of the crew had been bullied or harassed by the applicant. Mr Spokes did, however, state that the applicant takes his work duties seriously and is one of the best shotfirers to work with at the respondent’s mine.
[171] In cross-examination, Mr Carlson acknowledged Mr Spokes had not described his exchange with the applicant as a confrontation. Mr Carlson acknowledged that the specific allegation, “If you fuck with my family’s money, I will fuck with your life” was not put to Mr Spokes as part of the investigation to establish whether or not the conduct relied upon actually occurred. It was Mr Carlson’s evidence in cross-examination that he was no longer satisfied this particular allegation was corroborated or proven. Accordingly, the Commission is not required to make a finding in respect of this particular allegation.
(c) Approximately 6 months ago, you made comments to Barry Sowter following a comment he made on the way you had directed an Orica employee to reverse her truck that actually resulted in her reversing into a drill hole. You stated: “Fucking dobber, what are you going to do? Just wait until we are out of the gate, and I am on my bike, then you will know how dangerous I am.”
[172] The applicant denied he had spoken to or acted towards Mr Sowter in a threatening manner. In cross-examination, Mr Carlson acknowledged that he was unaware Mr Sowter and the applicant had known each other for 34 years. When interviewed, Mr Sowter did not suggest the comments as alleged were offensive or humiliating as required by the Code of Conduct, nor did he consider such comments as a threat. Mr Carlson acknowledged in cross-examination that as part of the investigation, the respondent did not seek to verify whether the alleged comments were heard by other members of the blast crew. In these circumstances and given the absence of conclusive evidence, the Commission is unable to find that the allegation is proven to the requisite standard.
2) The respondent also determined the allegation that the applicant had made inappropriate comments of a bullying and harassing nature to other employees were substantiated:
(a) In a recent blast crew meeting you were witnessed to have motioned to kick and punch Barry Sowter off his chair, as you were sitting behind him. Recently, on a separate occasion you were also witnessed to have said to Barry Sowter, “Geriatric old cunt, you should hurry up and retire.”
[173] The applicant denied this particular allegation. In cross-examination, Mr Carlson agreed Mr Sowter was not asked whether the allegations were true. Rather, the respondent had simply accepted Mr Jenner’s word that the conduct alleged had actually occurred. Moreover, in cross-examination, Mr Carlson agreed the allegation had not been corroborated or was the subject of questions to other members of the blast crew present at the time. Mr Carlson also acknowledged there was no reference to “threatened punch” within the respondent’s records of interview. In the absence of direct evidence supporting the allegation, the Commission is unable to determine that it was more probable than not that the conduct was alleged actually occurred.
(b) In July 2013 in full view of the blast crew in a pre-shift meeting you made the comment to Shane Smiles in words to the effect: “If you had any balls you’d ask for your shot back.” This was heard by the Supervisor, Ollie Hall at the time and he pulled you up on this not being an appropriate comment to make.
[174] The applicant denied he had sought to bully or harasses Mr Smiles. He did however agree that he had told Mr Smiles to “grow some balls and put up your hand and take a shot.” In cross-examination, Mr Carlson accepted there was a heated exchange between the applicant and Mr Smiles.
[175] Mr Carlson acknowledged Mr Smiles did not regard the applicant’s conduct as bullying or harassment behaviour. Mr Hall, the supervisor at the time, had taken steps to correct the behaviour of both the applicant and Mr Smiles without further investigation. Mr Hall had regarded the applicant’s conduct at the time inappropriate conduct. Notwithstanding those developments, Mr Carlson maintained the applicant’s alleged conduct amounted to harassment and a breach of the Code of Conduct. However, he also agreed that the applicant did not consider Mr Smile’s “fuck off” retort that took place as part of their exchange as bullying or harassing behaviour. Nor did the applicant swear at Mr Smiles. On the material before the Commission, an exchange did occur and was dealt with at the time by Mr Hall. Ms Farr and Mr Radoll both agreed that in the robust work environment of a coal mine, the language adopted by employees from time to time to communicate with each other is direct and can involve swearing. The applicant’s conduct and that of Mr Smiles was clearly inappropriate conduct when viewed strictly against the Code of Conduct.
(c) You have been responsible for posting Facebook messages of a disparaging nature that makes direct reference to other employees (Dean Jenner and Jeremy Burgess).
[176] There is no direct evidence before the Commission to support the proposition that the applicant was responsible for posting the offending Facebook messages as alleged within the public domain of the workplace. In cross-examination, Mr Carlson agreed the applicant did not show the relevant Facebook page with crew members but rather, one of the applicant’s Facebook friends was responsible. Mr Carlson also acknowledged Mr Burgess had not made any complaint concerning this particular matter. If the applicant did not show the offending Facebook page to other crew members, he cannot be held responsible for the actions of third parties. Accordingly, there is no substance to this particular allegation.
3) In relation to motor vehicle use on site, the respondent determined the allegation that the applicant’s conduct in not releasing the Company vehicle he regularly used (vehicle 4107) and required by other blast crew members impacted on operational efficiency was also substantiated.
[177] The applicant denied this allegation. In cross-examination, Mr Carlson noted the applicant was not part of a group of employees the respondent had identified as not being prepared to share their vehicles. Further, vehicles had historically been allocated on the basis of seniority. Those employees allocated company site vehicles were required to look after them. Mr Carlson confirmed in cross-examination that the applicant was not directly informed that it was Mr Jenner who had made this particular complain. On the material before the Commission and in the absence of direct evidence concerning the precise nature of this allegation, the Commission is compelled to find that it has not been proven to the requisite standard.
[178] Having considered the evidence in its totality I am not satisfied that the conduct relied upon by the respondent to dismiss the applicant is proven to the requisite standard. The respondent’s decision to dismiss the applicant was a disproportionate response taking into account his service and work history. Accordingly, it must follow that that there was not a valid reason for the termination of the applicant’s employment.
[179] The applicant was notified of the reasons for his dismissal prior to the respondent’s decision to terminate his employment was made.
[180] The applicant was given adequate opportunity to respond to the allegations. However, given my finding that on balance, these reasons were no made out to the requisite standard, this is a neutral consideration in this case.
[181] I am satisfied the applicant was afforded an opportunity to have a support person from his Union present at all relevant times. This is a neutral consideration in this case.
[182] The applicant was dismissed for serious misconduct. Consideration of whether the applicant was warned for unsatisfactory performance does not arise.
[183] The respondent is part of a global resources company with a dedicated human resources department with access to a range of internal and external legal services to ensure that allegations such as those levelled against the applicant are investigated fairly and thoroughly.
[184] This is a neutral consideration as the respondent has dedicated human resource staff at its Mt Arthur North mine.
[185] I have also had regard to the applicant’s exemplary employment with the respondent spanning almost ten years’ service. There was no evidence that prior to Mr Jenner raising allegations against the applicant that he had committed or been warned about similar behaviour. A petition circulated by the Union suggests that a number of fellow crew members would welcome the applicant’s return to the respondent’s workplace.
[186] Division 4 of Part 3-2 of the Act provides as follows:
Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer; the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatementand the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 392(5) indexed to $66,500 from 1 July 2014
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[187] The main provision in relation to remedy is s.390 of the Act. Reinstatement is the primary remedy provided for unfair dismissals in the sense that there must be a finding that reinstatement is inappropriate before any order for compensation can be made. Moreover, compensation must not be considered unless the Commission is satisfied the primary remedy is inappropriate or impracticable.
[188] The respondent was opposed to reinstatement. There was no explicit evidence before the Commission to support the proposition that reinstatement was inappropriate on the grounds of lost trust and confidence in the applicant. The respondent urged the Commission not to reinstate the applicant in the event of a finding that there was no valid reason for termination. The respondent expressed a concern that the investigation had identified a range of incidents that supported a pattern of threatening and intimidating behaviour within the workplace. In Regional Express Holdings Limited trading as REX Airlines v Richards203, the Full Bench stated:
[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable, it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there are a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust [emphasis added].
[189] In my opinion, factors in favour of the applicant’s reinstatement include the alleged conduct was largely not proven to the requisite standard, the applicant’s long and uncontroversial employment record, a view amongst fellow crew members that they would be happy to work alongside him again and the fact that the respondent also regarded him as a good shotfirer. The applicant acknowledged he had received Code of Conduct training and was aware of the penalty for any breach. There was no evidence that he was not prepared to comply with the Code of Conduct in the future.
[190] The Commission is satisfied that the applicant was protected from unfair dismissal.
[191] For the aforementioned reasons, I have found that the dismissal of the applicant was harsh, unjust and unreasonable within the meaning of the Act. Taking into account all of the facts and circumstances of the matter, I have also found that on balance, reinstatement is the appropriate remedy.
[192] The Commission orders as follows:
1. That the applicant is to be reinstated by the respondent within 14 days of this order to the position he was employed in immediately prior to his dismissal;
2. That the applicant shall be provided with full continuity of employment and his employment accumulations adjusted after his employment is reinstated. The parties are free to negotiate or otherwise mutually arrange alternatives in regard to financial payments previously made in relation to paid out employee entitlements; and
3. That the respondent shall pay to the applicant the amount in respect to his ordinary pay lost as a consequence of the dismissal up until the date of his reinstatement. Such amount shall be reduced by the amount of remuneration earned by the applicant (including any Centrelink payments that may have been received) since his dismissal.
COMMISSIONER
Appearances:
For the applicant, Mr A Howell of counsel.
For the respondent, Mr R Warren of counsel.
1 Respondent’s Form F3 – Employer Response to Unfair Dismissal Application
2 Applicant’s Form F2 – Unfair Dismissal Application
3 Mark Stroppiana’s Witness Statement - Exhibit 13 at para 13
4 Applicant’s Witness Statement - Exhibit 1 at para 8
5 Ibid at para 10
6 Ibid at para 16
7 Applicant’s Further Witness Statement - Exhibit 2
8 Ibid at para 9
9 Ibid at para 16
10 Ibid at para 33
11 Transcript at PN242
12 Ibid at PN248
13 Ibid at PN260
14 Ibid at PN419-508; PN536
15 Ibid at PN520
16 Ibid at PN502-510; PN519-520
17 Ibid at PN646
18 Ibid at PN691
19 Brett Spokes Witness Statement - Exhibit 4 at para 4
20 Ibid at para 5
21 Ibid at para 8
22 Ibid at para 9
23 Transcript at PN777
24 Ibid at PN848
25 Ibid at PN955
26 Ibid at PN870
27 Wayne Radoll’s Witness Statement - Exhibit 5 at para 9.
28 Hannah Farr’s Witness Statement - Exhibit 10 at para 6
29 Exhibit 5 at para 12
30 Ibid at para 13-14
31 Ibid at para 14
32 Ibid at para 16-18
33 Ibid at para 19
34 Ibid at para 21-22
35 Ibid at para 23
36 Transcript at PN914
37 Ibid at PN965-966
38 Ibid at PN975-978
39 Ibid at PN1027
40 Ibid at PN1029
41 Ibid at PN1049
42 Shotfirers’ Petition - Exhibit 7
43 Transcript at PN1211
44 Ibid at PN1217
45 Ibid at PN1253
46 Exhibit7
47 Transcript at PN1217
48 Ibid at PN1253
49 Ibid at PN1280
50 Stephen Mepham’s Witness Statement - Exhibit 6 at para 7
51 Ross Carlson’s Witness Statement - Exhibit 11
52 Exhibit 6 at para 16
53 Ibid at para 22
54 Transcript at PN1403
55 Ibid at PN1406
56 Ibid at PN1444
57 Nichole Samuelson’s Witness Statement - Exhibit 8 at para 6
58 Ibid at para 6
59 Ibid at para 9
60 Ibid at para 10
61 Ibid at para 12 & 13
62 Ibid at para 15
63 Ibid at para 23
64 Transcript at PN1634
65 Ibid at PN1653
66 Ibid at PN1680-1692
67 Ibid at PN1694
68 Ibid at PN1703
69 Ibid at PN1773 and 1779
70 Ibid at PN1784
71 Exhibit 10 at para 3
72 Ibid at para 10
73 Ibid at attachments HF-5 and HF-6
74 Ibid at para 23 and 24
75 Íbid at para 26
76 Transcript at PN1987
77 Ibid at PN1992
78 Ibid at PN1995
79 Exhibit 11
80 Ibid at para 13
81 Ibid at para 12
82 Ibid at para 14
83 Ibid at para 42
84 Ibid at para 46
85 Ibid at para 48
86 Ibid at para 49
87 Ibid at attachment RC-22
88 Ibid at para 56 and 57
89 Ibid at para 59
90 Ibid at para 78
91 Ibid at para 73
92 Transcript at PN2076
93 Ibid at PN2117
94 Ibid at PN2118
95 Ibid at PN2122-2125
96 Ibid at PN2140
97 Ibid at PN2148 and 2151
98 Ibid at PN2156
99 Ibid at PN2317
100 Ibid at PN2318
101 Ibid at PN2320-2322
102 Ibid at PN2338
103 Ibid at PN2339
104 Ibid at PN2355
105 Ibid at PN2763
106 Ibid at PN2765
107 Ibid at PN2491
108 Ibid at PN2515
109 Ibid at PN2516
110 Ibid at PN2525
111 Ibid at PN2573
112 Ibid at PN2574
113 Ibid at PN2619
114 Ibid at PN2647-2650
115 Ibid at PN2708
116 Ibid at PN2706
117 Ibid at PN2743
118 Ibid at PN2754
119 Ibid at PN2750
120 Ibid at PN2764
121 Ibid at PN2790-2800
122 Ibid at PN2761
123 Ibid at PN2659
124 Ibid at PN2667
125 Ibid at PN2672
126 Ibid at PN2694
127 Ibid at PN2812-2813
128 Ibid at PN2821
129 Ibid at PN2840
130 Ibid at PN2825
131 Ibid at PN2840
132 Ibid at PN2841
133 Ibid at PN2832-2835
134 Ibid at PN2833
135 Ibid at PN2825
136 Ibid at PN2828
137 Ibid at PN2834
138 Ibid at PN2856
139 Ibid at PN2858
140 Ibid at PN2884
141 Ibid at PN2885
142 Ibid at PN2889
143 Ibid at PN2789-2790
144 Ibid at PN2915
145 Ibid at PN2921
146 Ibid at PN2920
147 Ibid at PN2968
148 Ibid at PN3117
149 Mr Stroppianna’s Witness Statement – Exhibit 14 at para 9
150 Ibid at para 10
151 Ibid at para 52
152 Ibid at para 52-54
153 Ibid at para 58
154 Ibid at para 41 and attachment MS-20
155 Transcript at PN3220 and 3260
156 Ibid at PN3250-3254
157 Ibid at PN3262
158 Exhibit 11 at attachment RC-22, page 90
159 [2011] FWAFB 3847 at [29]
160 [2000] AIRC 1019 at [23]
161 Transcript at PN2767
162 Ibid at PN2709
163 Ibid at PN518-529
164 Ibid at PN847
165 Ibid at PN597-600
166 Exhibit 10 at para 3 and attachment HF-1
167 Exhibit 13 at attachment MS-6, page 128
168 Transcript at PN2306
169 Ibid at PN2598
170 Ibid at PN804-812
171 Exhibit 4 at para 4
172 Transcript at PN2136-2157
173 Ibid at PN2649-2654
174 Exhibit 2 at para 46
175 Transcript at PN2660
176 Ibid at PN2689-2690
177 Ibid at PN511-516
178 Ibid at PN2924
179 Ibid at PN1560
180 Ibid at PN3509
181 Ibid at PN3510
182 Ibid at PN3511
183 Ibid at PN 3527
184 Ibid at PN3516
185 [2012] FCAF 65 at [121]
186 [2011] FCAFC 54
187 [1969] 122 CLR 546
188 Transcript at PN3515
189 Ibid at PN3670
190 Ibid at PN3649
191 Ibid at PN3674
192 Ibid at PN3703-3714
193 Ibid at PN3729
194 Exhibit 14 at paras 2 – 9
195 [2004] AIRC 261
196 [1998] FCA 865
197 [1938] HCA 34; (1938) 60 CLR 336
198 [1992] HCA 66; (1992) 67 ALJR 170
199 [1995] IRCA 333
200 Ibid at para [10]
201 (1992) 110 ALR 449 at [451]
202 Exhibit 11 at attachment RC-23, page 92
203 [2010] FWAFB 8753 at [26]
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