[2016] FWC 6935
FAIR WORK COMMISSION

DECISION


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

Mr Gary McDermott
v
BHP Coal Pty Ltd
(U2015/16219)

COMMISSIONER SPENCER

BRISBANE, 26 SEPTEMBER 2016

Application for relief from unfair dismissal.

Introduction

[1] This Decision relates to an application made by Mr Gary McDermott (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from BHP Coal Pty Ltd (the Respondent) was harsh, unjust and/or unreasonable.

[2] The Applicant was employed by the Respondent to work as an Operator at their Saraji mine, in June 2003. The Applicant was employed by the Respondent for a period of approximately 13 years. The Applicant’s employment was terminated by the Respondent in relation to inappropriate workplace conduct allegedly engaged in by the Applicant on 15 October 2015. The allegations of conduct were considered by the Respondent to be in breach of the BHP Billiton Charter Values of Respect, Integrity and Accountability and contrary to the Respondent’s expected standards of behaviour of its employees.

[3] The matter was not resolved at Conciliation and was allocated to the Commission as currently constituted. An interlocutory issue arose when the Applicant sought to advance evidence disputing the Step 2 Warning received by the Applicant in July 2015. The Respondent objected to this, as the Applicant had not, prior to the termination of his employment, disputed this Step 2 Warning. An Interim Decision on this threshold issue and the Respondent’s application for legal representation, was provided on 5 May 2016 1.

[4] The substantive matter was heard at the Mackay Courthouse on Tuesday 31 May, Wednesday 1 June and Thursday 2 June 2016 and with final submissions on Tuesday 2 August 2016 in Brisbane.

[5] The Interim Decision also granted permission for the Respondent to be legally represented. As a result of this Decision, the Directions were amended to allow the Respondent to adduce further evidence with respect to the Applicant’s case including the Step 2 Warning. The Applicant was represented by Mr Rowan Anderson, Legal Officer of the Construction, Forestry, Mining and Energy Union – Mining and Energy Division Queensland District Branch (CFMEU). The Respondent was represented with permission by Mr Michael Coonan, Partner and Ms Christie Jenkins, solicitor, of Herbert Smith Freehills solicitors.

[6] Orders to attend were sought by the Respondent. The persons ordered to attend were former employees of the Respondent. Orders were issued for the attendance of Mr David Weickhardt, Former General Manager and Site Senior Executive, Mr Ron Stockley, former Supervisor and Mr Nigel Mansfield, BHP Employee. All provided evidence at the hearing in Mackay.

[7] It is noted that whilst not all of the evidence and submissions are referred to in this matter, all of such have been considered in making the Decision.

Background

[8] The Applicant was employed by the Respondent in June 2003 as an Operator at the Saraji mine (“Mine”). The Applicant’s employment was terminated on 6 November 2015 due to two incidents. The incidents occurred on 29 June 2015 (“first incident”), involving an alleged breach of safety procedures, whilst operating a Light Vehicle, and on 15 October 2015 (“second incident”), involving a verbal altercation between fellow employees at the worksite.

First Incident

[9] The first incident involved the Applicant entering the Active Mining Area (“AMA”), where the Applicant was asked to take a Light Vehicle and move a sign. There is disparity between the parties regarding this incident. More detailed evidence on this incident is covered later in the Decision. The Applicant stated that he took the Light Vehicle and moved the sign as instructed. Upon turning the vehicle around, there was a Rear Dump Truck backing into the Excavator to be loaded within the AMA. The Applicant stated he radioed the Excavator Operator (“EO”) and informed him that he needed to enter the AMA area. The EO responded “all clear.” The Applicant proceeded to enter the AMA area; however, the EO then responded that the Rear Dump Truck was not shut down.

[10] Following this incident, a meeting was scheduled with Mr Ron Stockley (Supervisor) where it is alleged that he referred to the “Just Culture Decision Tree” and “BMA Guideline to Fair Play Policy”. The Applicant was issued a Step 2 Warning as a result of this incident. Other employees also received disciplinary action. The Applicant stated the process was rushed as Mr Stockley was proceeding on leave. The Applicant stated that he did not receive a written copy of the warning letter until he received further documentation in these dismissal proceedings and then he stated he recognised his involvement in the incident was misstated. The Applicant was subject to this Step 2 Warning at the time of the second incident, and it was raised in the show cause letters in respect of the consideration of the second incident and the dismissal.

Second Incident

[11] The Applicant stated this second incident involved a minor verbal exchange outside a crib hut at the Mine. The Respondent concluded, on the basis of different recollections of the exchange, that this incident was significantly serious. The details of the second incident are set out in the show cause letter extracted below. The Applicant alleged he was sworn at by another employee. During the verbal dispute, it was alleged by the Respondent that the Applicant said words to the effect of “you suck dick” to another employee, Mr Mansfield. Further, it was alleged that the Applicant said “it doesn’t matter, the scabby bugger will come and jump on it anyway.” No formal written complaint was made by any of the employees present during the exchange. However, the Respondent documented that employees raised the incident with management.

[12] Following this incident, a meeting was scheduled on 16 October 2015 with Mr. Abrams (Superintendent Prestrip) and Mr Michael Findlay (a CFMEU delegate). The Applicant provided a written statement (“GM03”) 2. After the meeting and an ensuing process, the Applicant’s employment was terminated.

Termination Meeting

[13] The Applicant stated he attended a further meeting on 25 October 2016 with Mr Bull (Superintendent at the Mine) and Mr Brad Crompton (the Applicant’s Union representative), at which he was issued with a “show cause” letter 3.

[14] The show cause letter asked the Applicant to provide a response, by no later than 5.00pm on Wednesday 28 October 2015, as to why the Applicant’s employment should not be terminated for serious misconduct, and stated as follows:

[15] The Applicant provided a written response to the show cause letter dated 26 October 2015. The response to the show cause letter stated as follows:

[16] On 6 November 2015, the Applicant attended a meeting in Mackay where Mr Abrams was present (Mr Crompton was connected by telephone as the Applicant’s representative). It was at this time the Applicant was handed a termination letter with immediate effect. The termination letter, dated 6 November 2015, stated as follows:

[17] The Applicant submitted that the termination letter incorrectly categorised the conduct relating to the Step 2 Warning. Further, the Applicant stated that the termination of his employment was harsh, unjust and unfair.

[18] The Applicant argued that the Respondent failed to consider appropriate alternatives to dismissal, such as asking the employees to apologise to each other, providing further training to the employees, or asking the employees to participate in a mediation session. The Applicant alleged that the Respondent failed to take into consideration the Applicant’s length of service and history of employment. Further, the Applicant alleged the Respondent failed to adhere to its own policies and procedures, in reaching the decision to terminate the Applicant’s employment.

Legislation

[19] The application was made pursuant to s.394 of the Act, which provides as follows:

[20] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

396 Initial matters to be considered before merits

[21] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 25 November 2015. The originating application stated that the dismissal took effect on 6 November 2015. As the date of termination is not disputed between the parties, the application was made within the period required in s.394(2) of the Act.

[22] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, as follows:

382 When a person is protected from unfair dismissal

[23] There is no dispute between the parties that the Applicant had completed the minimum employment period and was not jurisdictionally barred as a high income employee. No other jurisdictional objections were made by the Respondent. The Applicant was a person protected by the unfair dismissal provisions at the time of the dismissal.

[24] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:

385 What is an unfair dismissal

[25] There is no dispute that the Applicant is a person who has been dismissed. Those matters in ss.385(c) and (d) do not arise.

[26] The Applicant has alleged that the dismissal was harsh, unjust and/or unreasonable. 4 In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account those matters specified by s.387 of the Act, as follows:

387 Criteria for considering harshness etc.

[27] Regulation 1.07 of the Fair Work Regulations 2009 provides the definition of serious misconduct, as follows:

1.07 Meaning of serious misconduct

Summary of Applicant’s Submissions and Evidence

(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

[28] In regards to s.387(a), the Applicant noted that the reasons given for the Applicant’s termination of employment were that he breached the BHP Billiton Charter Values and the BHP Billiton Code of Business Conduct.

[29] The Applicant submitted that when determining whether or not a valid reason exists, the Commission must be of the view that the reason put forward by the Respondent is:

[30] The Applicant submitted that when the reason for a dismissal is due to an allegation of misconduct made by the Respondent, the Commission must be satisfied that the alleged conduct took place. In King v Freshmore (Vic) Pty Ltd6 a Full Bench of the Australian Industrial Relations Commission stated:

[31] Further, the Applicant submitted that a belief, even a reasonably held belief, as to the conduct by the employee for which the termination was based, is not sufficient for the purposes of s.387(a) of the Act and does not amount to a termination for a valid reason7.

[32] It was submitted on behalf of the Applicant, that the reason for termination was not “sound, defensible, or well founded”.

[33] The Applicant explained the conduct that allegedly occurred in his response to the show cause letter included above.

[34] The Applicant, in his statement dated 18 March 2016, recalled the incident of the verbal exchange on 15 October 2015 as follows:

[35] The Applicant, in his reply statement dated 24 May 2016, stated that he “did not call Mr Barrett a scab and “did not say the word ‘scab’ but rather ‘scabby’ and it was not directed at Mr Barrett.” Further, the Applicant stated that he “did not intentionally use the ‘word’ scabby in an ‘industrial connotation’ as suggested by Mr Weickhardt. The use of the term ‘scabby’ was a slip of the tongue.”

[36] The Applicant also stated in his reply statement that “when Mr Barrett suggested that there would be an issue if anyone called him a scab I said words to the effect of “I don’t blame you”. I made it clear to Mr Barrett that I didn’t call him a scab.”

[37] The Applicant gave evidence at the hearing as to what he said on 15 October 2015 as follows:

[38] The Applicant alleged that the Respondent’s basis, for deciding that the Applicant’s actions were in breach of the above policies, was fundamentally flawed. It was argued on behalf of the Applicant that the Respondent dismissed the Applicant on the basis of vague and unhelpful ‘Charter Values’. Further, the Applicant alleged the Respondent had no basis for determining that the Applicant acted in breach of what were the specific stated values of “integrity” and “accountability”.

[39] The Applicant noted that the Respondent did not produce statements made by the two other participants, Mr Mansfield and Mr Barrett. The Applicant submitted that the Respondent failed to obtain such statements and there was no follow up with Mr Mansfield or Mr Barrett. 8 The following was conceded at the hearing from Mr Abrams:

[40] The Applicant also emphasised that neither Mr Barrett nor Mr Mansfield made a formal complaint regarding the incident.

[41] The Applicant submitted that the Applicant’s evidence should be preferred over that of Mr Mansfield. It was submitted that Mr Mansfield first gave clear and unequivocal responses attesting that the notes of his interview with Mr Abrams were correct and that he did not hear the context in which the word “scab” was said. 9 Mr Manfield’s evidence was conceded at the hearing as follows:

[42] However, the Applicant’s representative submitted that in cross-examination, Mr Mansfield sought to “recraft” his evidence and asserted that he did hear the context. 10 The following evidence was relied on to demonstrate this:

[43] In his statement, the Applicant provided evidence of the fact that the exchange on 15 October 2015 was mutual, and that the other primary employee involved had sworn at him and made disparaging comments first and that the alleged conduct was taken out of context, and, further, that the comments the Applicant had made were not directed at any individual.

[44] In addition to the above, the Applicant alleged the conduct was of a type exhibited or used by other employees and supervisors at the Mine on a regular basis. The Applicant submitted that the Respondent appears to have indefensibly and erroneously focused on a mistaken view that the Applicant had deliberately used the term “scab” and that again, erroneously found that this conduct should result in termination.

[45] It was submitted by the Applicant that the Respondent’s reliance on the Step 2 Warning, when making the decision to terminate the Applicant’s employment, was inappropriate and wrong. The Applicant submitted that the Respondent clearly and inexplicably characterised the Step 2 Warning as relating to intentional conduct when it was not. In addition, the Applicant submitted that the Step 2 Warning was otherwise mischaracterised in the decision making process.

[46] Irrespective of the Step 2 Warning, the Applicant submitted, the conduct for which the warning was issued in the first incident related to a minor alleged procedural failing, when operating a vehicle at the Mine. It was argued that that type of conduct was so far removed from the allegations relating to 15 October 2015, so as to be irrelevant. The Applicant submitted that it cannot be sensibly suggested that having been issued with the Step 2 Warning that the Applicant would understand, that if he was involved in a verbal exchange in the nature of what occurred, that his employment would be terminated.

[47] The Applicant submitted that the Respondent knew that such conduct as alleged should not result in termination. The Applicant submitted the Respondent has policies and procedures to deal with conduct where it is reported to be offensive or inappropriate. The Applicant submitted that the Respondent simply chose to disregard the circumstances of the incident, the reality of the alleged conduct, and it policies and procedures, all because a word similar to “scab” was said to have been used.

[48] In terminating the employment of the Applicant, it was submitted by the Applicant, that the Respondent had also inappropriately and erroneously suggested that an admission by the Applicant that he was “remorseful” and that the comments made were “off the cuff”; amounted to a justification of the termination. The Applicant submitted they were quite the opposite.

[49] The Applicant’s representative submitted that reliance on such matters for the termination of his employment was fanciful and capricious and could not form part a valid reason to justify the termination.

[50] The Applicant submitted that the Respondent’s further basis for the termination of his employment was an alleged breach of the Company’s Charter Values of “accountability, integrity and respect”. The Applicant submitted that it was unclear on what basis the Respondent came to those conclusions and the Applicant submitted that a breach of those specified elements was an unavailable conclusion on the facts.

[51] The Applicant’s representative submitted that the actions of the Applicant cannot be considered to be serious misconduct in the circumstances. Therefore, when the evidence is viewed as a whole, the Applicant argued, that there was no valid reason for the termination.

(b) whether the person was notified of that reason; and

[52] In regards to s.387(b), the Applicant submitted that an employer must notify an employee of the valid reason and the grounds upon which they may be terminated, before making a decision to terminate their employment. This notification must be done in a time and manner that gives the Applicant an opportunity to respond to the allegation.

[53] The Applicant submitted that the clear reasons why his employment was being terminated were not provided to the Applicant, prior to the termination. Specifically, it was submitted that the Respondent failed to articulate or describe the elements of the alleged conduct which were said to result in the alleged breaches. For example, the Applicant submitted the Respondent failed to notify the Applicant of the precise reasons why they considered his conduct amounted to a breach of the Respondent’s Charter Values and standards of conduct and for example a lack of “integrity”.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[54] In regards to s.387(c), the Applicant submitted that, in order to be given an opportunity to genuinely respond, an employer cannot just “go through the motions”, in making a decision to terminate the employment of an employee.

[55] In this instance, the Applicant submitted he was allowed an opportunity to respond to the allegations, but only to the extent that they were generally outlined in the show cause correspondence from the Employer.

[56] The Applicant submitted that the Respondent had made a predetermined and/or erroneous decision to dismiss the Applicant, because of a preconceived view, held by a certain manager or managers, as to the use of the term “scab”.

(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

[57] The Applicant has not alleged that the Respondent failed to allow the Applicant to have a support person present for the relevant discussions.

(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

[58] The Applicant submitted that the termination of the Applicant’s employment involved consideration of a previous alleged unsatisfactory performance incident, specifically the ‘Step 2 Warning’ that related to an event on 29 June 2015.

[59] The Applicant submitted that this warning was issued due to an alleged minor incident, involving an allegation of failing to follow an operational procedure. The Applicant submitted that that warning was irrelevant to the assessment of the alleged conduct on 15 October 2015 and was inappropriately and unfairly taken into account. The Applicant further submitted that the warning itself was unwarranted and or excessive in the circumstances.

[60] The Applicant submitted that the Respondent had not previously warned the Applicant in relation to the type of conduct which was alleged to have taken place on 15 October 2015.

[61] The Applicant also submitted that the previous warning should not have been taken into account in the termination as it erroneously documented the situation and this error was only discovered after the warning document was provided after his dismissal.

(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

[62] The Applicant submitted that the Respondent is a large multinational company with access to dedicated human resource and industrial relations specialists. Despite this, the Applicant submitted, the Respondent failed to take into account the reality of the nature of the alleged conduct in the context of the exchange between the employees.

[63] The Applicant submitted the Respondent also inappropriately conducted an investigation and sought to influence the statement of at least one witness/participant.

[64] The Applicant also submitted the Respondent maintained policies and procedures that were not utilised and/or incorrectly utilised in the investigation and disciplinary process. Accordingly, the Applicant submitted, clearly set out mechanisms; including the use of mediation, were not implemented despite the content of the Code of Conduct. The following evidence by Mr Abrams was provided at the hearing, demonstrating alternatives to dismissal were not considered:

[65] The Applicant submitted the Respondent mischaracterised the Step 2 Warning and continued to do so despite being told such. Further, with the resources available to the Respondent, the Applicant submitted such mischaracterisation is inexplicable, particularly given the consequences of such for the Applicant.

[66] The Applicant also stated that the Respondent failed to take into account the Applicant’s lengthy service and to provide alternatives to dismissal. Further, the Applicant stated, the Respondent failed to take into account his personnel file or his particular facts and circumstances, which was conceded at the hearing as follows:

(h) any other matters that the FWC considers relevant

[67] The Applicant submitted that, if the Commission forms a view that the Applicant’s actions did constitute a ‘valid reason’, in that his actions were a breach of the Respondent’s policies as outlined, then the Applicant submitted that the decision to terminate his employment was still unfair, as the decision was harsh, unjust and unreasonable.11

[68] The Applicant referred to and submitted that the Commission should give regard to the case of Makin v Glaxosmith Kline Australia Pty Ltd12 in that, in unfair dismissal matters, “that there is a valid reason for terminating employment does not necessarily mean that the termination was not harsh, or unjust or unreasonable.”13

[69] The Applicant submitted that when making a determination, Commissioner Bissett referred to the Full Bench decision in Woolworths v Brown14 and outlined a range of factors which the Commission must consider in order to determine if the dismissal was contrary to s.387 of the Act. These matters of relevance to the current circumstances include (but are not limited to) the following:

[70] Further reliance was placed on this case in emphasising the specific facts and circumstances of each dismissal which must be carefully considered:

[71] In this matter, the Applicant submitted, that there are a range of matters to which the Commission should give regard to, when deciding whether or not the Applicant was unfairly dismissed. These are as follows; the Applicant’s length of service (13 years); the Applicant’s lack of disciplinary record; the exemplary work history of the Applicant; and a disparity in treatment between the Applicant and others involved in the incident. In addition, regard should be had to disparity of treatment between the Applicant and other employees and staff involved in similar or worse behaviour and an inconsistent and discriminatory application of the Respondent’s policies.

[72] The Applicant submitted that he had an unblemished record (aside from the unwarranted warning from the AMA incident) of employment over the approximately 13 years of his service with the Respondent. Further, the Applicant submitted that it is relevant that that service has occurred in a remote environment involving shift work. Further, the Applicant submitted that the Respondent has fundamentally failed to recognise or acknowledge the relevance of the Applicant’s service and dedication to the Respondent.

[73] The Applicant submitted that he had not been previously engaged in or subject to any discipline for conduct such as that alleged to have occurred on 15 October 2015.

[74] As addressed above, the Applicant submitted that he was advised he would receive a Step 2 Written Warning but this warning related to a fundamentally different issue to that which led to the termination. Further the Applicant confirmed that there had not been a repeat of the issues, relevant to the issues that led to the Applicant being advised he would receive a Step 2 Written Warning.

[75] The Applicant submitted that, given that the verbal exchange did not relate to the Applicant’s performance whilst undertaking his work, the Respondent should not have taken this Step 2 Warning into consideration when making the decision to terminate his employment.

[76] The Applicant submitted that the culture at the mine, was such that, the type of alleged behaviour was routine. Further, the Applicant submitted that, the Respondent’s representatives and staff members would regularly use similar behaviour and this went uninvestigated.

[77] The Applicant submitted that the application of the policies and procedures of the Respondent were applied in a discriminatory manner. The Applicant submitted that the Respondent applied their policies in a manner designed to punish union members while leaving behaviour undertaken by others of a comparable nature, unaddressed.

[78] The Applicant submitted that the Respondent also fundamentally failed to take into account the Applicant’s personal circumstances, including the medical condition of his son, and further that mediation could have been implemented with the employees in the verbal exchange to resolve the matter.

[79] The Applicant argued that the alleged misconduct in both incidents was of a minor nature and should not have brought the Applicant’s long term employment to an end. Further, the Applicant submitted that regardless of whether a valid reason for termination existed, the termination of the Applicant’s employment was so grossly out of proportion as to be absurd.

[80] Taking all of such into account, the Applicant submitted that the Commission should find that the termination of his employment by the Respondent was harsh, unjust and unreasonable.

[81] The following witnesses provided statements as evidence:

[82] In consideration of his overall employment, the Applicant summarised his employment history with the Respondent, 17 the Warning that was given by the Respondent on 29 June 2015,18 the incident and meeting of 15 October 2015,19 the meeting of 16 October 2015,20 the meeting of 25 October 2015, the Show Cause correspondence and response,21 the Termination Meeting dated 6 November 2015,22 and the Events after the Termination.23 Mr McDermott emphasised the disparity between the parties in their consideration of the context and their views of the events and using the word scabby.

[83] Mr Crompton outlined what he alleged occurred during the meeting with Mr Mansfield. He stated that he believed Mr Abrams was trying to get an agreement from Mr Mansfield as to what occurred, rather than allowing Mr Mansfield to recount his version of events. Further, Mr Compton stated that when he was later speaking with Mr Mansfield following the meeting, and Mr. Mansfield expressed to M. Crompton, that he regretted that the matter had escalated to such a serious level.

[84] Mr Crompton, on behalf of the Applicant, provided information as to the context of the mine site and Mr Mansfield’s character. He stated that it was not uncommon for the D Crew at the mine to use colourful language between each other. Further, Mr Crompton stated that Mr Mansfield was the Step-up Supervisor and was acting in supervisory role practically the whole time. It was this that gave some context to the incident and the exchange.

[85] Mr Compton further stated that he had worked with Mr McDermott since he first commenced employment. He stated that Mr McDermott was well known to be very good at his job. In Mr Crompton’s belief he was one of the most productive Shovel Operator’s on site. Further, Mr Crompton stated he saw no reason why Mr McDermott should not be reinstated, that he was unaware of any impediments to such.

[86] Mr Findlay provided evidence that he did not work with Mr McDermott on a day to day basis, however, he was aware from various discussions, with him, other employees, and staff, that he was a good operator and he had the second best dig rate on the mine. 24

[87] Mr Findlay provided evidence that he does not believe Mr McDermott was asked to provide a written statement at that meeting. Further, during the meeting, Mr Findlay stated that Mr McDermott expressed remorse for being involved in the incident. Further, there was no mention of any complaint from the employees being made at the meeting. From Mr Findlay’s understanding, no formal complaint had been made, in relation to the incident by either Mr Mansfield or Mr Barrett (a WorkPac contractor at the Mine). 25

[88] Following the meeting, Mr Findlay recalls seeing Mr Mansfield stating words to the effect of ““I didn’t mean for it to go this far” 26.

[89] Mr Findlay also stated that he recalls sometime between 25 October 2016 and 6 November 2015, where he discussed with Mr Abrams the reference to the warning in the show cause letter was incorrect. 27

[90] Mr Findlay provided evidence that he did not believe the allegations contained in the show cause letter were correct, based on the recollection of meetings he attended with Mr McDermott and Mr Mansfield. 28 Further at the meeting on 6 November 2015, he believed the termination letter incorrectly referred to the Applicant’s conduct as intentional.

Summary of the Respondent’s submissions pursuant to section 387.

(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

[91] The Respondent submitted it terminated the Applicant’s employment because the evidence showed that on the balance of probabilities the Applicant engaged in inappropriate workplace conduct on 15 October 2015.

[92] In relation to the Step 2 Warning, the Respondent submitted that the Applicant’s case was that the Step 2 Warning was wrongly applied because: he should have never received a warning as he did not breached the SOP; 29 he should have never received a warning at that level as it was unintentional and the fault of others; 30 and his Step 2 Warning was wrongly described.31

[93] The Respondent submitted that the SOP required positive communication with all equipment in the AMA. The Respondent relied upon the following to demonstrate this:

[94] The following evidence was referred to by the Respondent to demonstrate that discipline arising from the first incident was warranted:

[95] The Respondent submitted, by relying on the evidence below, that the rear dump truck was covered by the SOP and the information brief:

[96] Furthermore, the Respondent submitted that the Applicant did not have positive communication with the rear dump truck operator:

[97] In relation to the Information Brief (“Brief”), the Respondent submitted that, given the self-serving nature of the Applicant’s evidence and Mr Crompton’s attempts not to cause too much embarrassment for the Applicant, the Applicant conceded he was aware of the Brief and the Applicant admitted he was trained in it. The following extract was referred to in affirming the Respondent’s submission:

[98] The Respondent submitted it was quite clear that the Applicant breached the SOP and the Respondent was entitled to act upon that breach. In relation to the Just Culture Decision Tree, the Respondent submitted, upon conclusion of the meeting with the Applicant and his union representative on 29 June 2015, a non-intentional breach had been found. 33 The Respondent submitted it relies upon the following evidence to demonstrate the Applicant is in agreement with the alleged breach:

[99] Concerning the alleged flawed description of the breach, the Respondent submitted that it did not change the fact that the Applicant admitted it was a breach and secondly, it did not change the fact that the Applicant has never denied he was on a Step 2 Warning.

[100] The Respondent submitted, in relation to the credibility of the evidence concerning whether and when he objected to the way the Step 2 Warning was described, as follows: the alleged erroneous description was argued to be crucial but the Applicant did not raise it in the show cause; it was argued that Mr Crompton cannot give any reliable evidence of when he raised it with Mr Abrams; Mr. Abrams said it was not raised with him before or during the show cause period and he was not cross examined on that point; and it was submitted it was not plausible that if it had been raised with the Respondent before the termination, that the Respondent would not have addressed it in the termination letter.

[101] From this, the Respondent submitted the Applicant was treated equitably in that process.

[102] In relation to the credibility of the Applicant, the Respondent submitted there was a large number of inconsistencies in the Applicant’s evidence as follows: on 15 October 2016 – the Applicant was unsure whether he said the “next scabby or grubby,” 35 on 16 October 2016 – the Applicant stated the “scabby/grubby will come and jump on it anyways,” 36 on 26 October 2016 – the Applicant stated “I made to the best of my recollection I said words to the effect of “next the scabby/grubby (not sure which) from down the other end will be here on the shovel,”37 and on 18 March 2016 – the Applicant stated “I also said words to the effect of “it doesn’t matter, the scabby buggers will come and jump on it anyway”.38

[103] By reference to the different meanings of the words “the scabby” and “scab,” the Respondent submitted the Applicant was given every opportunity but had not provided any evidence of what a “grubby” is, or what a “scabby” is, or how they are meaningfully different, or different at all.

[104] The Respondent submitted that the evidence of Mr Abrams was that Mr Mansfield used the word “scab” 39 and Mr Barrett told him he used the word scab. Further, the Respondent relied on the following evidence from Mr Mansfield in relation to the context of the terms used by the Applicant:

[105] Whilst the Applicant alleged his conduct was minor,40 the Respondent submitted it is irrelevant as his conduct caused offence. The following evidence of Mr Stockley highlighted the offence taken by Mr Mansfield and Mr Barrett:

[106] Further, in relation to the context of the verbal exchange, the Respondent submitted the importance of it by reference to Walter Meacle v BHP Coal Pty Ltd 42, in the following terms:

[107] To demonstrate the context of the discussion, the Respondent submitted the Applicant initiated a discussion with Mr Mansfield and Mr Barrett in circumstances where he was angry and frustrated over the labour hire employees working on the Employer’s machines. Further to this, the Respondent submitted the Applicant’s only possible target of his comments (on the versions of both the Applicant and Mr Mansfield was Mr Barrett (a Workpac employee). The Respondent believed that the evidence of the Applicant was deliberately vague and evasive. The Respondent submitted the following extract of the Applicant’s evidence under cross-examination demonstrated this:

[108] The Respondent submitted it did what it was required to do, given it made an objective evaluation of the evidence before it of the Applicant’s conduct.  44 Further, the Respondent submitted it acted reasonably by terminating the Applicant’s employment and as such the decision was based upon a valid reason.

(b) whether the person was notified of that reason; and

[109] The Respondent submitted the evidence in the case does not support the submissions by the Applicant that the Employer never informed the Applicant of the findings of the investigation and that the Respondent failed to inform him of the conduct that was alleged to have breached the Code and Charter Values.

[110] On 15 October 2015, Mr Abrams invited the Applicant and his support person to attend an interview and the Respondent submitted the Applicant believed he was there because of the incident at the crib area on 15 October. 45 Subsequently, the Respondent stated on 16 October 2015, Mr. Abrams met with the Applicant and his support person Mr Findlay for a second meeting and he said he was clear on the purpose.46 Following this, the Applicant was issued with a show cause letter which set out the Respondent’s findings against the Applicant.47 The Respondent submitted that it clearly set out the alleged breached against the Applicant.48 The last paragraph of the Respondent’s reply reads as follows:

[111] The Respondent submitted it is interesting and informative that the Applicant has never challenged that final paragraph.

[112] Once the Applicant responded to the show cause letter, the Respondent submitted that it terminated the Applicant’s employment on 6 November 2015 and the Applicant was notified of the reason in his dismissal letter. Further, the Respondent submitted the specific allegations were provided for in the ‘show cause’ correspondence 25 October 2015 as follows:

[113] The Respondent submitted the following in relation to the Applicant’s admissions:

[114] In regards to the reason for dismissal, the Respondent submitted the Applicant does not deny that he was told he was dismissed for breaching the Code. 52

[115] In summary, the Respondent submitted that the Code and Charter Values explain the standards that are not acceptable, and that the Applicant read them and was trained in them and he knew what it meant to call someone a scab or scabby. Secondly, the Respondent submitted, never has the Applicant once, at the two interviews, a stand down, or in the show cause process raised any doubts as to what was happening to him and why. Thirdly, the Respondent emphasised that the Applicant has admitted his conduct was inappropriate. 53 This was conceded at the hearing as follows:

[116] The Respondent submitted it is clear from the evidence the Applicant was notified of the reason for his dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[117] The Respondent submitted the following occurred between the parties; on 15 October 2015, the Respondent advised the Applicant that he was being given the chance to respond to what Mr Mansfield and Mr Barrett claimed had occurred; 54 in his own application, the Applicant admitted he was asked to provide a statement, Mr Abrams provided the Applicant with a suspension letter setting out his right to respond; and on 25 October the Applicant received a show cause letter which advised him of the findings of the investigation and what was alleged by the Respondent and provided him the opportunity to respond.

[118] The Respondent submitted the Applicant provided a response to the show cause and it believed there can be no clearer demonstration of the opportunity to provide a response. Further, the Respondent submitted it is only required to provide the opportunity to respond 55 and it is up to the Applicant to take that opportunity.

[119] At no stage, the Respondent submitted, did the Applicant claim he did not understand what was being required of him or what he was required to answer. The Respondent states there was no evidence of the pre-determined outcome, the Applicant did not receive any material until after the show cause response.

[120] In relation to the evidence of Mr Weickhardt, the Respondent submitted he gave extensive evidence of the processes he went through in considering the investigation report and the ‘show cause’ response, along with the Applicant’s employment history and personal circumstances, before making a considered decision to dismiss the Applicant. 56

[121] Conclusively, the Respondent submitted, the Applicant was given an opportunity to respond to the allegations and did so during his interviews with Mr Abrams on 15 and 16 October 2015. Further, in the show cause respond he provided on or about 29 October 2015.

(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

[122] The Respondent submitted the Applicant afforded and availed himself of the opportunity to have a support person present at relevant times. Relevantly, the Respondent stated that the Applicant accepted that the Respondent allowed him to have a support person at all relevant times.57

(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

[123] The Respondent submitted this section is not relevant to these proceedings as the Applicant was dismissed for conduct reasons, not for unsatisfactory performance.

(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

[124] The Respondent submitted that whilst it is a large enterprise with dedicated human resources specialists, it accepted the procedure was not perfect but that the dismissal was appropriate.

[125] The Respondent stated that to believe the Applicant’s evidence one would have to: ignore the flip flops in his evidence on what he said; accept “scabby” or “grubby” or “scabby buggers”, or “scab” did not mean anyone and that people from over the other end did not mean anyone.

Incorrectly utilised procedures

[126] The Respondent submitted there is no requirement that it must await a formal complaint before commencing an investigation. Furthermore, the Respondent believed rather than this being a case of busy body intervenor of officious bystander commencing an unwarranted investigation, this was a matter that both Mr Barrett and Mr Mansfield brought to the attention of Mr Abrams. 58

[127] In relation to Mr Abrams’ conduct, the Respondent submitted that he is a supervisor who is required to address behaviour in breach of the Code. 59 Further, it is submitted that Mr Abrams investigated Mr Mansfield and Mr Barrett’s concern objectively and transparently. The Respondent believed Mr Abrams did not make any decisions until he had all the material before him, nor were any predeterminations made that the Applicant had engaged in the conduct.

Allegation of Mischaracterisation of the Step 2 Warning

[128] The Respondent submitted the alleged mischaracterised warning letter is irrelevant because the Just Culture Decision Tree clearly sets out that the warning was issued for a breach of an Active Mining Area procedure and further, the characterisation of the Step 2 Warning in the warning letter dated 15 July 2015 and the ‘show cause’ letter was not mischaracterised because on 15 October 2015, the Applicant intentionally allowed a light vehicle to enter the AMA by driving the vehicle that he was in control of into the AMA. 60

[129] In relation to disputing the warning, the Respondent submitted the Applicant chose not to dispute the warning and took the issue on board regardless of its characterisation. 61

(h) any other matters that the FWC considers relevant

[130] The Respondent submitted in Parmalat 62, the Full Bench noted (emphasis added):

[131] The Applicant submitted that his dismissal was harsh because of the impact it has had upon him; his contrition and remorse; his length of service, clean record; and the inequitable treatment.63

[132] In response to the Applicant’s mitigating factors, the Respondent submitted Mr Weickhardt considered the following alleged mitigating factors before making the decision to terminate:

Whether or not the Applicant showed contrition and remorse;

The Applicant’s length of employment with the Respondent65;

The Applicant’s employment record which included a Step 2 written warning66; and

whether a termination would result in equitable treatment.

[133] After having reviewed the evidence, the Respondent submitted that the Applicant was not remorseful at the time of the incident. 67 Further, the Respondent was of the opinion that long service, clean records and co-operation do not in themselves excuse serious misconduct.

[134] The Respondent submitted that there was no evidence that the Applicant’s disciplinary outcome or treatment was inequitable.

[135] The Respondent referred to instances when the Applicant was a trainer/assessor; the Respondent submitted at various times during the course of his employment the Applicant was expected to adhere to a higher standard having regard to his awareness of safety procedures and the Code and Charter Values. The Respondent states a similar standard was observed in the Full Bench case of Brambleby68 at [89] as follows:

[136] In relation to a consideration of mediation as an alternative to termination, despite the Applicant’s assertion, the Respondent submitted it would be unwarranted due to the gravity of the conduct.

[137] The Respondent submitted in relation to the Step 2 warning, the alleged mischaracterisation does not matter because:

[138] In summary, the Respondent submitted that termination of employment was a proportionate and appropriate response to the gravity of the Applicant’s conduct. Therefore, the Commission can be satisfied that the Applicant’s dismissal was not harsh.

Further Submissions by the Respondent

Applicant’s credibility

[139] The Respondent submitted when the Applicant discussed regularly monitoring job websites after the termination of his employment, the Applicant blatantly contradicted himself. The Respondent extracted the following evidence which, it submitted, tests the credibility of the Applicant’s evidence:

[140] The Respondent submitted that, in the above transcript references, the Applicant was vague on where he looked, how many times and when. The Respondent submitted that the Applicant offered to find the sites which he said he could do by checking the web history, not expecting to be pushed on that, as follows:

[141] The Respondent submitted that when requested to provide screenshots, the Applicant retracted the offer:

[142] From this, the Respondent submitted there is clear evidence of the Applicant being deliberately dishonest by making self-serving comments in a situation where he thought he would not be expected to provide evidence to substantiate his allegation, not expecting the Respondent would take him up on his claims.

[143] The Respondent submitted the Applicant backtracked on the evidence that he had previously given under oath:

Consideration

[144] The Applicant’s representative, in the final submissions, emphasised matters of significant mitigation to the alleged conduct, as follows:

[145] In relation to the Step 2 Warning, the Applicant’s Representative submitted:

[146] The Applicant has stated that the process was rushed as Mr Stockley was proceeding on leave. The leave records produced confirm this and I concur with the following assessment:

[147] The Applicant stated that the Respondent’s reliance was on “a purported previous warning in determining to dismiss the Applicant from his employment. That reliance was unfair for reasons stated elsewhere in these submissions. Those reasons include:

[148] The evidence in regard to the Step 2 Warning somewhat undermined its veracity. It was submitted that the warning should not have been considered in connection with the further incident as to whether dismissal was warranted as it related to entirely different allegations.

[149] In addition, once the Applicant received a copy of the warning after his dismissal it was then argued the purported warning related to the conduct of Mr Noel White rather than that of the Applicant. The evidence of Mr Stockley was that he accepted that the warning described Mr White’s conduct in cross-examination:

[150] The Applicant submitted the reliance on the purported warning was also unfair in that Mr Stockley was told to issue everyone a Step 2 Warning. 92 The Applicant also submitted that the purported warning was unfair and should not have been issued in any event. The Applicant’s representative relied on the evidence of Mr McDermott in relation to the alleged conduct and the fact that the Applicant was in fact not at fault.93 Notwithstanding that, the purported warning was irrelevant to the conduct leading to the termination and there was no repeat of the alleged conduct.94” Whilst there was a breach of the SOP by the Applicant (in separate and lesser terms to that expressed in the warning), it has no connection to the further incident.

[151] It was submitted that the dismissal was not sound, defensible or well founded and that the dismissal was capricious and prejudiced. The Applicant submitted that the following mitigating matters must be considered:

[152] In this case, the Applicant’s representative submitted that the Respondent has taken “an irrational view of the incident in that it simply decided that anything to do with the word “scab” should result in dismissal”. The Applicant claims it was “apparent that the Respondent was always going to dismiss the Applicant on the mistaken and ill-founded basis of the Doevendans High Court Case acting as a “precedent”. This approach prejudiced the outcome and was capricious.”

[153] The Applicant also emphasised that “Mr Weickhardt also erroneously refused to accept that Mr McDermott expressed remorse. 95 The Applicant submitted that, other matters raised by Mr McDermott were treated with disregard or otherwise were dismissed by the Respondent such as; “the failure to accept Mr McDermott was appropriately remorseful was because the Respondent had already determined that it would dismiss the Applicant on the ill-founded basis that any reference to “scab” regardless of context would result in dismissal. Those reasons were capricious and prejudiced.” The Respondent refuted this, and considered the Doevendans case (CFMEU v BHP Coal Pty Ltd96) provided a proper precedent for the dismissal, where the word ‘scab’ had been used. In this case ‘scabby buggers’ was used by the Applicant in a careless comment, in circumstances where the Applicant’s performance was impugned.

[154] The Applicant sought reinstatement and committed to complying with any requirements of the Respondent.

[155] The Applicant strongly argued that “despite the content of the show cause letter the Respondent had predetermined that dismissal should result simply because there was some reference to the word “scab”. The Respondent’s erroneous reliance on what it describes as “precedent” made impossible for the Applicant to respond in a manner that might have changed the result.”

[156] The criteria in s.387 of the Act are relevant to the consideration of the dismissal.

(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

[157] The Commission must consider whether the alleged conduct occurred, and whether the conduct provided a valid reason.

[158] The reason for the Applicant’s dismissal was given as breaches of the BHP Billiton Charter Values and the BHP Billiton Code of Business Conduct, given the findings in the investigation.

[159] The Show Cause letter details the finding of the investigation as follows:

[160] Accordingly, it must be determined whether the conduct, outlined in the show cause letter occurred, and provided a valid reason and whether there was any associated harshness in the decision.

[161] The Applicant’s representative submitted that the Applicant’s evidence in relation to the conversation that occurred on 15 October 2015 must be preferred, despite some slight differences in his recollection of the events that, they submitted, were not extraordinary and did not exhibit an attempt to manufacture untruths.

[162] The Applicant also submitted that an adverse inference should be drawn against the Respondent for failing to call Mr Damien Barrett. If the Respondent is arguing that the use of the word scab (in an industrial context) caused offence to Mr Barrett, his evidence would have been significantly relevant and it is telling he has not been brought as a witness. The Respondent in contest argued it was the Applicant’s conduct that was at issue.

[163] The Applicant also submitted that it was the case that the Applicant’s evidence should be preferred over that of Mr Mansfield. Mr Mansfield first gave clear and unequivocal responses attesting that the notes of his interview with Mr Abrams were correct and that he did not hear the context in which the word “scab” was said. 97 However, in cross-examination Mr Mansfield sought to “recraft” his evidence and asserted that he did hear the context.98

[164] Mr Mansfield stated that during the initial interview, of which notes were taken by Mr Abrams, that he told Mr Abrams that he had called the Applicant a “cunt”. The following was conceded at the Hearing by Mr Mansfield: 99

[165] It is agreed that Mr Abrams did not record that matter in the notes he made 100. There is a clear inconsistency between the evidence of the witnesses put forward by the Respondent. This demonstrates the nature of the exchange and that the Applicant was responding to such.

[166] It is also confirmed there were distinct differences in the notes made by Mr Abrams as to his interviews with Mr Mansfield and Mr Barrett. Mr Mansfield agreed at Hearing that it was the Applicant that left the area following the exchange and both Mr Mansfield and Mr Barrett stayed at the location. 101 This was conceded by Mr Mansfield as follows:

[167] The Applicant submitted that Mr Mansfield’s evidence regarding the timeline of the exchange was unreliable. At one stage he stated that the Applicant pulled up right in front of him 102 and at another point said that he came out and saw Mr Barrett and the Applicant talking.103 The following evidence demonstrates this:

[168] It must be emphasised that there is no clear uniform evidence that the word ‘scab’ was used directly at another employee, and further that this was an off-the-cuff exchange between employees where improper language was used between all of them. It is clear that none of them would have envisaged that their exchange would have been repeatedly analysed in the current circumstances. The circumstances of the discussion and conduct are distinguishable from the Doevendans case. The participants in the current discussion were all behaving in a casual but somewhat cavalier manner but there was no predetermination or significant hostility present. Nor was the commentary directly demeaning or intimidating. This is in contrast to the case law referred to. However, the comment cannot be condoned and its use by the Applicant is concerning given his length of employment.

[169] The Respondent confirmed the Applicant’s understanding of the word ‘scab’ at the hearing and submitted as follows:

[170] This conclusion (drawn in cross-examination) of the Applicant’s understanding of ‘scab’, does not align with the case law as to the offensive nature of the term. However, it is arguable, as contended by the Respondent, that the combined conduct represented a breach of the Code and Policies. However, in the circumstances, such a breach did not provide a valid reason for dismissal.

(b) whether the person was notified of that reason; and

[171] The Applicant was notified of the reasons for the dismissal, however, no clear line was drawn between the use of the word ‘scabby’ (in the exchange between the men at the workplace) and the breach of the Code in specific terms. In addition, as set out, the Applicant’s notification of the warning from the first incident was flawed as I find (in breach of the Guideline) he had not received the warning document at that time, and when received it was not an accurate representation of the circumstances.

[172] Procedural issues were identified with the first warning provided by Mr Stockley. The Applicant’s evidence was that he considered the Just Culture Decision Tree process was rushed and that he had not been provided with the associated records at that time. His evidence was supported by the production of the leave records which confirmed Mr Stockley was proceeding on leave and did not provide the warning.

[173] In considering whether the conduct presented a valid reason, the Applicant’s submissions as follows are relevant:

[174] The Respondent’s necessity to manage its workforce against its required standard of behaviour was acknowledged, and the fact that such procedures cannot accommodate every scenario. However, the current circumstances of the discipline are significantly disproportionate to bring an end to this length of employment, for the reasons as set out against the Code.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[175] The Applicant was clearly provided with an opportunity to provide his response in the show cause response even though at the time he had not received the documentation relevant to the first warning. The Interim Decision permitted the additional evidence in relation to the first incident at the hearing, and therefore the Applicant has now had the opportunity to bring his full response; denied at the time, as he did not have the full knowledge of the first incident.

(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

[176] The Applicant at each stage was afforded the right to a support person.

(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

[177] The deficiency in initially not providing this first warning documentation has been considered. There is disparity between the parties regarding the application of the Step 2 Warning. Further, in relation to the verbal exchange, the Respondent maintained proper training had been provided in relation to the behaviour and conduct required. The use of the word ‘scab’ on site was not specifically covered in the training or in the warning. There was no warning or specific communication that its use would lead to dismissal, but in the current circumstances the use of other profane words etc would not. The Respondent’s requirement to manage its workplace and its dedication to training is acknowledged.

(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

[178] In assessing sections 387 (f) and (g), the Respondent is a significant organisation of the Respondent with a dedicated human resource staff and access to expert advice. In this context, the Applicant was critical of the application of the Step 2 Warning and the manner in which it was conducted and the breach of the procedures by not providing a copy of the warning to the Applicant, until much later when the dismissal was under consideration. This is recognised given this warning was relied on for the dismissal. The Applicant also objected to the manner in which the investigation and dismissal process was conducted by the Respondent. The Applicant emphasised that Mr Weickhardt confirmed he had not reviewed the Applicant’s personnel file and therefore had not taken into account all relevant matters prior to reaching a decision of dismissal.

[179] The Applicant submitted:

[180] The Applicant contended that even if the Commission was of the view that the conduct was commensurate with a valid reason, when the deficiencies in the process are considered and the differentiation of treatment between employees involved in similar conduct is taken into account, the Applicant’s dismissal, when reviewed against the Applicant’s lengthy satisfactory employment history, must be considered as harsh, unjust or unreasonable.

(h) any other matters that the FWC considers relevant

[181]  A range of other relevant matters were considered. It is determined, based on evidence given with respect to the supervisor proceeding on leave (after providing the first warning), that the first warning was undertaken in haste and the Applicant was never provided with the written warning document, in contrast to the requirement in the Employer’s policy. Given this, it was understandable why the Applicant did not raise his disagreement with it, in his show cause response. It is however, relevant, as reinforced by Mr Coonan, that baseline positive communications were not established by the Applicant in the AMA. However, other employees had also played a role in this incident.

[182] The second incident referred to a breach of the Respondent’s Code of Business Conduct and that conduct of this nature (in terms of the verbal exchange and the use of the word scabby) was a breach of the Respondent’s behavioural standards. The Respondent did not particularise the breach in relation to the words in the 70 pages of the Code (except to state employees must treat others with dignity and respect) and pursued the conduct in terms of a zero tolerance to the use of the word ‘scab’ at their worksite. The Respondent submitted that it was irrelevant if it was some derivative of that such as ‘scabby’. The Applicant’s representative was particularly critical of the general nature of the breach of the Code of Conduct, being a breach of the Employer’s standard of working with integrity and being vague and uncertain and also that these policy documents were not universally applied to all incidents across the workforce by the Respondent. The Applicant referred to a range of other incidents involving other employees which were characterised as being far more offensive in terms of the intimidatory conduct and the nature of the language used, than that engaged in by the Applicant. The Respondent argued the Applicant would have been aware of the offensive nature of the word scab at a mine site given the Doevendans case.

[183] With respect to the use of the words in the second incident, the Applicant submitted:

[184] The Applicant’s representative was critical of the Respondent relying on the Applicant’s mere utterance of the word scab/scabby as a basis for the termination. The Applicant was also critical of the Respondent’s allegation that the use of this word was clearly understood by employees as a breach of the Code and Charter values. The Applicant argued that these workplace documents were lengthy and general in nature and implementation of them in terms of the training had not been undertaken in accordance with the management directions, nor in terms of the timing for such training.

[185] The documents made no express reference to a prohibition on the use of the term scab or the repercussions on site in terms of the disciplinary response, if it was used. In cross-examination, Mr Weickhardt’s evidence on this position was:  

[186] Whilst Mr Weickhardt’s evidence is recognised, his clear assessment and the intention of the company in managing a large workforce was to ensure that there was a standard of respect for all employees. It is also understood from the Respondent’s submissions and evidence and case references that the Employer considered that the use of the word scab was considered to be offensive, and would not be tolerated at the workplace. The Respondent made significant reference to the case of authority of the Federal Court decision in CFMEU v BHP Coal Pty Ltd 106 (Doevendans); and that clearly, the Applicant’s conduct was considered against this standard (there is a significant industrial context to these circumstances). However, the Respondent had not communicated the outcome of this case to its workforce nor that they intended to adopt such a standard as a result in managing the workforce, that the use of the term scab in any way would not be tolerated.

[187] The circumstances of the conduct of the Applicant in terms of the use of the word scab can be distinguished from that in the Doevendans case

[188] The Applicant genuinely gave credible evidence on the incident, however it is acknowledged that Mr Coonan in cross-examination identified some issues of credit in terms of variation in the versions of the Applicant with reference to the words he used, and in addition he highlighted with the Applicant, some lack of recollection of the jobsites he had visited in searching for work and other matters. However these did not impact overall on the straightforward nature of the evidence he gave.

[189] It is important to note there was some provocation in terms of the exchange, that it was put to the Applicant in derogatory terms, that they were down there to pick up the operators dig rates; a matter that the Applicant was clearly proud of, in terms of him being known as one of the best operators at the work site, for a number of years.

[190] It is this that initiated the exchange and created some tension between the parties. The exchange cannot be viewed in isolation from the operations at the worksite, and that the Respondent, as they are at liberty to do, does have a component of labour hire employees at site. There is no doubt that full-time employees of the Respondent are mindful that other employees may encroach on their jobs at the worksite, particularly in what was a constricting coal market.

[191] However, the manner in which the term was used had to have been so offensive (in the absence of a clear communication that simply using this word no matter what the context, will result in termination). It was characterised by the Respondent as the most offensive term to be used on a coal mine site. The Applicant’s representative made reference to a number of other exchanges between employees and incidents between employees, that would have to be characterised as offensive and concerning, but where no disciplinary action or comparatively less disciplinary action was taken with offending employees. This comparative differentiation of treatment and the lack of clear training or cogent reasoning as to how the dismissal was necessary, given other alternatives to such were not exhausted, are relevant.

Conclusion

[192] The alleged conduct of the Applicant in the second incident regarding the verbal exchange between the Applicant and others has been considered against the Respondents Code of Conduct and the Respondent’s examination of this incident in terms of prior case law dealing with the use of the word ‘scab’ against the facts and circumstances of the current matter. The first warning has also been taken into account.

Remedy

[193] The relevant legislative provisions for consideration of the remedy are set out in s.390, s.391 and s.392 of the Act. Section 390 sets out the following:

390 When the FWC may order remedy for unfair dismissal

[194] The Applicant submitted that if the Commission ordered that the termination was either for no valid reason or was harsh, unjust and unreasonable, that it is appropriate for it to make an order under s.390 of the Act reinstating the Applicant to his former position and for compensation for any lost wages and to maintain the Applicant’s continuity of service pursuant to s.391 and s.392 of the Act.

[195] The factors for consideration of whether reinstatement is “appropriate” within the meaning of s.390(3)(a) are well settled. If there is a finding that the Applicant was unfairly dismissed, then it must be considered whether there has been a destruction of the relationship of trust and confidence between the parties, and whether the relationship could be resumed, particularly given the employer is a large organisation, with a large workforce.

[196] There was no definitive evidence or reasoning there would not be sufficient trust to make the employment relationship viable and productive. Any difficulty, embarrassment or inconvenience would not be such that, the problems could not be overcome. 107 The reasons for the dismissal did not represent significant issues related to the Applicant’s performance of his duties.

[197] Section 392 relevantly sets out:

[198] In this matter it is considered that there is not a valid reason, the dismissal is harsh and is disproportionate, and therefore unjust and unreasonable, taking into account its impact and the series of mitigating circumstances. The Applicant submitted, if reinstatement is deemed inappropriate, then pursuant to s.390(3)(b) of the Act, an Order for compensation may be considered. Given the Applicant’s age, length of service and family, and prior satisfactory record, it was very likely that he would have continued in employment with the Respondent for a longer period. The Applicant’s limited earnings in the intervening period have been considered.

[199] Under the statutory cap set out in s.391(5) of the Act, it was submitted the Applicant should receive the equivalent of 26 weeks of pay, that would have been earned by the Applicant immediately before his dismissal.

[200] The Applicant in this matter sought reinstatement and had expressed remorse for his comments. There was no significant evidence (as a result of the use of the words) of intimidation or offence to the employees to the degree that would be expected in the circumstances where the Applicant’s employment was terminated for such. Whilst it is acknowledged that it is the Employer’s right to properly manage its workforce, particularly a large workforce in an inherently dangerous mine site, proper communication of its policies is required and then in the circumstances, the Employer should be able to expect compliance with such 108. However, the facts and circumstances must be taken into account.

 

[201] It is understandable that the Employer could conclude that the words used by the Applicant represent non-compliance with the Code and the Charter values in terms of the standards of behaviour that the Employer expected at its work site. However, it could equally be construed that the standards of behaviour in terms of the language and the interaction used by the other employees involved, also fell short of the required standards. The use of the language involving ‘scab’ on the current facts and circumstances against the Code and case authorities did not warrant dismissal.

 

[202] The Respondent in this case had considered the conduct of the Applicant against the Doevendans general protections case, regarding the termination of Mr Doevendans who had been an employee at the Saraji mine. Some months prior to the termination of his employment, he had, during a protest, waved a sign (at employees in cars passing a picket line) which read 'No principles SCABS no guts'. In that matter, the then general manager of the mine stated the word scab which appeared on the sign was inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of BHP's workplace conduct policy. He stated that the sign was antagonistic to the culture at the mine and in conflict with the policy of courtesy and respect. That conclusion was clear on the circumstances.

[203] Further, in the Federal Court of Australia Decision in Maritime Union of Australia v Fair Work Ombudsman 109, the Full-Court of the Federal Court commented on the use of the word scab, in the context of a poster calling employees who had worked during a strike ‘scabs’:

[204] Justice Bromberg in his minority decision in the Federal Court of Australia decision in Maritime Union of Australia v Fair Work Ombudsman 110 characterised the use of the word scab as follows:

[205] The conduct by the Applicant in the current case is distinguishable from that in the above appeal, on the basis that the majority of the appeal judges concluded that the poster was intended to damage the named workers, and caused fear for the personal safety of the persons to whom the comments were directed and the safety of their families and property. The case of McDermott’s conduct, can be distinguished from the use of the term (in the above case) with reference to the use of labour hire workers, in response to the Applicant being told that the step up supervisor was there to pick up their dig rates. The statement and language was provocative, the Applicant had prided himself on his excellent operating skills. The circumstances are distinguishable. There was no evidence of unforgivable and unredeemable treachery on the Applicant’s part.

[206] The current circumstances of the use of the term ‘scab’ can also be distinguished from an earlier decision as referred to in Walter Meacle v BHP Coal Pty Ltd  111 in which I concluded that dismissal was warranted for the use of the word ‘scab’ at a BHP mine site. The following extract from that decision is included to demonstrate the contrast in the circumstances between cases with a significant industrial context and the current case; the summary of the Federal Court included in the Walter Meacle decision is as follows:

[207] In the Walter Meacle decision I noted:

[208] The findings of Landers J regarding the conduct of Mr Meacle (in contrast to the Applicant), at paragraphs 234 and 235, in the decision state:

[209] I concluded in those circumstances; where Mr Meacle’s comments were directly made with the purpose and in the circumstances which he knew were aimed at being insulting, threatening and humiliating to the other employee, that the dismissal of Mr Meacle was not harsh, unjust or unreasonable.

[210] I have also taken into consideration the decision of Foley and Martin v BHP Coal Pty Ltd 112, where employees (who had been suspended on pay) were reinstated after periods of unpaid suspension to impose a significant financial penalty. This case, determined in 2001, by (then) Vice President Ross; was in relation to alleged misconduct at a BHP mine site. The conduct referred to particular circumstances aimed at another employee. I do not intend to repeat all of the alleged conduct but to reference the circumstances in which the term ‘scab’ was used:

[211] The misconduct in this case took place on the picket line and this was considered to be a relevant factor in determining whether the disciplinary action taken was disproportionate. It was confirmed in recounting the circumstances that the industrial dispute in question at that time was protracted and that employees had been on strike some five weeks and that BHP staff had been used to continue to operate the mine .The case involved the Applicants in the matter using signs in relation to those employees that crossed the picket line.

[212] Both the employees had 5 to 6 years’ service and like Mr McDermott, the evidence suggested their past service had been satisfactory. There has been further judicial reflection on the use of the term scab since the time of that decision. The Federal Court decision, set out above in Maritime Union of Australia v Fair Work Ombudsman 113, more recently referred to conduct regarding the use of the term scab that is considered to be deliberate and serious in terms of a personal attack on another employee in contrast to the conduct of the Applicant currently.

[213] The use of the word ‘scab’ cannot be condoned, however, what characterises the offensive nature of the use of the word in these cases is the industrial context and how it has been used in contrast to the current circumstances.

[214] In the current matter under consideration, there is similar reference to other employees using other obscene language. The cross-examination of the General Manager of the mine site demonstrated a pre-determination of the use of the word and that alternatives to dismissal were not considered.

[215] Clearly, communicating there will be a zero tolerance approach to the use of the word ‘scab’ on site may well clarify the situation. Currently there is comparative differentiation in this matter between the use of this word and other equally offensive terms by other employees. This is not to say that the Applicant should not be held responsible for the use of the word in connection with the reference to labour hire contractors allegedly taking employees work. The Applicant was remorseful for the use of the term in this way. However it must be considered that in the conversation with the Applicant an equally derogatory approach and language was used with the Applicant. 

[216] It is acknowledged that, as in the Harbour City Ferries 114 case, an employer has the right to set a policy for the standard of conduct for employees, and not to expect to have such debated. It is fair and reasonable for the employer to have such approach to the use of the word ‘scab’ where it is clearly set out to employees .Whilst the Employer considered that the Doevendans decision (as it related to the conduct of an employee from the Saraji mine) was well known to all employees and that they should've been well aware that arising from this decision the use of the term 'scab' on site would not be tolerated. However it cannot be automatically assumed that because a Federal Court decision had dealt with particular circumstance that employees will be aware and that ruling translates to how a scenario will be enforced on site.

[217] The Doevendans case does have significant differences to the matter under consideration currently. The conduct in that case was alleged to have been repeated and was directly designed to be intimidating and offensive, and premeditated in terms of the production of a sign with the word ‘scab’.

[218] The Employer is often faced with the excuse that the use of this language is the culture of the mine site and that robust exchanges are normal and therefore often proposed as acceptable. The Employer, as set out, does not find such conduct acceptable and goes to significant efforts to train their people regarding the standards of behaviour warranted in the workplace. Their approach is acknowledged and understood and it will be of concern that exchanges using the word ‘scab’ continue to be put to forensic analysis as to the intent and nature and circumstances of the exchange. However to date this is how the use of the word has been determined in the case law. It is open to the Employer to avoid such deliberation of circumstances and to communicate a zero tolerance attitude and policy, to the use of the word ‘scab’ on site.

[219] Direct communication to the workforce setting out the Employer’s clear position would eliminate potentially any defence in relation to the use of this word and should clarify the nature of the language used on a mine site and the Employer’s view of such in terms of the disciplinary responses. It is accepted that the Code of Conduct cannot deal with every specific scenario and that the BHP Code of Conduct does seek to support the appropriate standard of conduct and to manage the workplace by affording dignity and respect to all at their workplace. Such an approach must be supported. However, in the circumstances where there had not been direct communication regarding the Doevendans decision and such was relied on, the resulting disciplinary outcome of an employee with 12 years’ service is harsh in the current circumstances.

[220] These conclusions in relation to the marked difference between the circumstances of the Doevendans incident and that involving the Applicant were not taken into account by the decision maker. In fact, he drew a correlation on the basis that both cases involve the use of the word scab and his view that it was a significantly offensive term to use on site and the termination of employment was directly warranted based on that assessment. The consideration of the Applicant’s termination was deficient, as the exchange was wrongly characterised as being similar to that in the Doevendans matter and that appropriate alternatives to termination, were not given real consideration. The evidence of the employees was also that the matter had escalated disproportionately after the exchange and that there was also no real persuasive evidence that any of these employees could not have mended their workplace relationships or in fact could not work with the Applicant if reinstated.

[221] It is acknowledged that there is some recognised tension on the mine site with the use of labour hire employees in order that the Employer, which is their entitlement, can be operationally responsive to the changing coal market, and the Applicant was referring to this in the second incident. However, the evidence of the exchange demonstrated that this was an off the cuff remark made by the Applicant, not specifically directed at any employee and certainly not in the industrial context as seen in the case law. The termination of his employment is disproportionate to the circumstances where it had not been made clear to employees that the use of the word scab in any circumstances would result in dismissal. However, the language used in the exchange was a breach of the Code of Conduct and is still considered to be a serious matter, given the Employer’s emphasis on maintaining respect and integrity for all at the workplace. The Applicant conceded the conduct in terms of the words ‘scabby buggers’ and the other words as he set out in his recount of the exchange. Mr Coonan also demonstrated that there was a breach of the standard operating procedure in relation to the first warning which gives rise to a real safety concern for this Employer.

[222] In all of the circumstances, I have considered the submissions on the interim earnings and related matters and also the Respondent’s submissions regarding the nature of the breach and that reinstatement, if awarded, should be coupled with a heavy discounting of the period in recognition of the breaches of the Code of Conduct and SOP at the mine site. In recognition of these breaches and to act as a deterrent for other such breaches and conduct at the workplace, I decline to make an order restoring lost remuneration. I do not consider, taking into account all of the circumstances and that the Applicant had some awareness of the Doevendans case, that the continuity of remuneration between the dismissal and the reinstatement is warranted given both incidents. A separate Order [PR585766] will reflect this.

[223] I Order accordingly.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

Mr R Anderson, Legal Officer, CFMEU, for the Applicant

Mr M Coonan, Partner, and Ms C Jenkins Herbert Smith Freehills for the Respondent

Hearing details:

2016:

Mackay.

31 May, 1 and 2 June.

2016:

Brisbane.

2 August.

Final written submissions:

Applicant – 25 July 2016.

Respondent – 25 July 2016.

 1   [2016] FWC 2706.

 2   Annexed to Gary McDermott’s statement, marked “GM03.”

 3   Annexed to Gary McDermott’s statement, marked “GM04.”

 4   Submissions of the Applicant, at [56].

5 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

6 Print S 4213 at [23].

7 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.

 8   PN1767 and PN1769.

 9   PN2340.

 10   PN2397.

11 Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465.

12 [2010] FWA 2211; Bumford v Rio Tinto Aluminum (Bell Bay ) Limited [2007] AIRC 1082; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWA 6750; Mayer v Transfield Services (Australia) Pty Limited [2013] FWC 5340.

13 Makin v Glaxosmith Kline Australia Pty Ltd [2010] FWA 2211 at [129].

14 PR963023 26 September 2005.

15 Ibid at [132] .

16 Ibid at [137].

 17   Witness Statement of Gary McDermott, paragraph 2.

 18   Witness Statement of Gary McDermott, paragraph 11.

 19   Witness Statement of Gary McDermott, paragraph 45.

 20   Witness Statement of Gary McDermott, paragraph 56.

 21   Witness Statement of Gary McDermott, paragraph 59.

 22   Witness Statement of Gary McDermott, paragraph 66.

 23   Witness Statement of Gary McDermott, paragraph 71.

 24   Witness Statement of Mick Findlay, paragraph 6.

 25   Witness Statement of Mick Findlay, paragraph 13.

 26   Witness Statement of Mick Findlay, paragraph 10.

 27   Witness Statement of Mick Findlay, paragraph 21 & 22, annexure “BC03.”

 28   Witness Statement of Mick Findlay, paragraph 28.

 29   Exhibit 1, paragraph 25; Exhibit 4, paragraph 23; Exhibit 5, paragraph 10; Exhibit 5, paragraph 11.

 30   Exhibit 4 at paragraph 22; Exhibit 1 at paragraph 27.

 31   Applicant’s Outline of Submissions at paragraph 42.

 32   Exhibit NF-1 to Exhibit 8

 33   Exhibit 16 at paragraph 27

 34   Attachment GM-01 to Exhibit 1

 35   Annexure VA-3 to Exhibit 11.

 36   Annexure VA-5 to Exhibit 11

 37   Attachment GM05 to Exhibit 1

 38   Exhibit 1 at paragraph 41

 39   PN2296; PN 2344 & PN 2713 & PN276.

40 Applicant’s Outline of Submissions at [55].

41 Exhibit 11 at paragraph 23.

 42   Walter Meacle v BHP Coal Pty Ltd [2013] FWC 2331.

43 [2013] FWC 2331 at [70].

 44   Myers v. 2evolve Pty Ltd [2016] FWC 2921.

 45   Exhibit 4, paragraph 10.

 46   Exhibit 11 at paragraph 50.

 47   Annexure DW-2 to Exhibit 14.

 48   Anneure DW-2 to Exhibit 14.

49 Anneure DW-2 to Exhibit 14.

50 Attachment GM06 to Exhibit 1.

51 Attachment GM06 to Exhibit 1.

 52   F2, Question 301.

 53   PN519.

 54   Exhibit 11 at paragraph 43.

55 Paul Swain v Ramsey Food Packaging Pty Ltd (U No. 20400 of 1999) at [105].

 56   Exhibit 14 at paragraphs 16 – 28, 32 – 35.

57 Applicant’s Outline of Submissions at [34].

 58   Exhibit 11 at paragraphs 6 to 9.

 59   Annexure VA-7 at page 6 to Exhibit 11.

 60   PN 288 & PN 289.

 61   Exhibit 1 at paragraph 25.

 62   Parmalat Food Products Pty Ltd v Mr Kasian Wililo [2011] FWAFB 1166 at [249].

63 Applicant’s Outline of Submissions at [4(f)], [4(p)], [4(r)] and [4(s)].

64 Exhibit 14 at 33.

65 Exhibit 14 at 25.

66 Exhibit 14 at 25.

 67   PN 2955.

68 Brambleby v Australian Postal Corporation [2014] FWCFB 900.

 69   Exhibit 14 at paragraph 25.

 70   Exhibit 1, paragraph 2.

 71   Exhibit 1, paragraphs 30 and 31.

 72   Exhibit 1, paragraphs 32 and 37.

 73   Exhibit 1, paragraph 37.

 74   Exhibit 1, paragraphs 37 and 39.

 75   PN2432.

 76   Exhibit 1, paragraph 40.

 77   Exhibit 1, paragraph 40.

 78   Exhibit 1, paragraphs 41 and 43.

 79   PN2461.

 80   PN2340.

 81   PN2362 and PN2363.

 82   PN2381 to PN2384.

 83   PN2387.

 84   Exhibit 1 “GM03”.

 85   Exhibit 11, paragraph 55.

 86   Exhibit 11 “VA06”.

 87   Exhibit 1, paragraph 55.

 88   Exhibit 1, paragraphs 56 and 57.

 89   Exhibit 1, paragraph 69.

 90   See “GM01” to Exhibit 1, at page 3.

 91   Exhibit 2, paragraph 59.

 92   PN3744.

 93   Exhibit 1, paragraphs 11 to 29.

 94   Exhibit 1, paragraph 28.

 95   PN2955.

 96   [2014] HCA 41.

 97   PN2340.

 98   PN2397.

 99   PN2413.

 100   Exhibit 11 “VA2”.

 101   PN2496.

 102   PN2419.

 103   PN2323.

104 Sexton v Pacific National (ACT) Pty Ltd, unreported, PR931440 at [36].

 105   PN2194.

 106   [2014] HCA 41.

 107   Perkins v. Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191 – 192 per Wilcox CJ, Marshall and North JJ.

 108  Harbour City Ferries Pty Ltd v Mr Christophe Toms [2014] FWCFB 6249.

 109   [2016] FCAFC 102.

 110   [2016] FCAFC 102.

 111   [2013] FWC 2331.

 112   PR905419.

 113   [2016] FCAFC 102.

 114   [2014] FWCFB 6249.

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