| FWC 7648|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Roy Hill Operations Pty Ltd
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
PERTH, 25 OCTOBER 2016
Application for relief from unfair dismissal – abusive behaviour – valid reason – fair process.
 On 15 July 2016 Mr Pauling lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), in which he claimed that the termination of his employment with Roy Hill Operations Pty Ltd (Roy Hill) was unfair.
 Mr Pauling’s application was the subject of a determinative conference in Perth on 20 October 2016. In this conference, Mr Pauling represented himself, and Roy Hill was represented by Mr Billings, of counsel, pursuant to a grant of permission made under s.596(2)(a) of the FW Act. Mr Pauling did not oppose that permission and I was satisfied that, given the number of witnesses, their disparate locations and the nature of the matters to be determined, a grant of permission would enable the application to be dealt with more efficiently.
 The background to the application can be simply summarised. Mr Pauling commenced employment with Roy Hill as a truck driver on 16 November 2015. He worked in the Pilbara on a “fly in fly out” (FIFO) basis. He was engaged under a fixed term contract with an end date of 26 October 2017. As a FIFO employee, Mr Pauling was accommodated in, what is referred to as “village” accommodation, a short distance away from his work-site.
 Mr Pauling’s employment was terminated on 24 June 2016 after an investigation into his behaviour on 8 and 10 May 2016 towards medical staff based at the village. The nature of that behaviour, and the extent to which it warranted termination of employment, are matters which are in dispute between the parties. Furthermore, Mr Pauling asserts that the process followed by Roy Hill to effect the termination of his employment was also unfair.
 There is no dispute that Mr Pauling was a person protected from unfair dismissal, that his application was made within the statutory time limit, that the Small Business Fair Dismissal Code did not have application and that the termination of his employment was unrelated to redundancy issues.
 Whilst I have taken all of the evidence before me into account in reaching a conclusion about this matter, I have summarised the witness evidence in the following terms.
 Mr Pauling’s evidence was that on 8 and 10 May 2016 he had the flu. He advised that at 2.00 am on 8 May 2016 he suffered an attack of asthma and telephoned the medic. He advised that at 7.00 am he went to the medic who suggested that he was suffering from anxiety rather than asthma and did not treat him for his asthma, but rather, told him to come back in one hour. Mr Pauling did this, but was dissatisfied with the medical advice provided to him. He advised that, on his third visit to the medical centre on 8 May 2016 he was treated with oxygen and/or a nebuliser which significantly relieved his symptoms. He considered that the initial diagnosis that he did not have asthma was flawed. His evidence was that
“8. While in a distressed state I pointed out to the medic that I felt that as a result of inaction by the medic my safety had been compromised.” 1
 Mr Pauling advised that he made a three-page written complaint about the treatment that he received and submitted this to Roy Hill on 9 May 2016 after he expressed concern about the medic service at the pre-start meeting on that day. Mr Pauling asserted that this complaint had been lost or destroyed and that this reflected a deliberate action on the part of Roy Hill personnel. Whilst Mr Pauling asserted that he was aware of witnesses who would attest to the complaint he made about Ms Ranga on 9 May 2016, he did not call anyone to this effect.
 Mr Pauling’s evidence went to the extent to which he felt unwell on 10 May 2016 and was treated by a paramedic, Mr McCaw before being eventually referred back to Ms Ranga. Mr Pauling advised that he was frustrated at the approach adopted by Ms Ranga and acknowledged that he expressed this frustration to her. He disagreed with Ms Ranga’s description of his behaviour. Mr Pauling’s evidence was that:
“13. While some of my language may have been unsavoury as a result of my distressed state and believing that my life had been placed in danger as a result of the actions of the medics, at no time have I shown any propensity to violence and the unfortunate language that I used at that time was out of character.” 2
 In his evidence, Mr Pauling denied that he had acted aggressively but stated:
“I said “you are fucking dangerous, you are going to kill someone because she denied me treatment as I was leaving the door. I have never denied that fact. That is the only time that I was aggressive, and I wasn’t even aggressive, I just said it in a ….. I was just walking out the door, I said you are f…. I was just walking out the door …. I was just so frustrated.” 3
 Mr Pauling’s evidence was that he was flown off site on 11 May 2016. He attended his Doctor that day and was diagnosed with Bronchial asthma which was treated with steroids and then antibiotics. He advised that, whilst he was told of the basis for his stand down on 14 May 2016, he did not receive written confirmation of this.
 Mr Pauling’s evidence went to his participation in the disciplinary interviews that resulted in the termination of his employment.
 Dr Habashy is Mr Pauling’s general practitioner. His evidence went to his diagnosis of Mr Pauling on 11 May 2016 and to the medication prescribed for him. Dr Habashy also confirmed variable presentations for asthma and the extent to which his diagnosis on 11 May 2016 related to Mr Pauling’s condition at the time that he saw him.
 Mr Heseltine is the Roy Hill Superintendent Select Mining, with line management responsibility for Mr Pauling. His evidence went to confirm that he was not aware that Mr Pauling had made a complaint on 9 May 2016 about Ms Ranga’s treatment of him on the previous day. Mr Heseltine also confirmed the advice he gave to Mr Pauling on 14 May 2016 such that he was stood down, with pay, pending an investigation into his behaviour toward Ms Ranga. He confirmed that he had emailed written confirmation of this to Mr Pauling on that day.
 Ms Ranga is the Registered Nurse who was on duty at the medical centre on 8 and 10 May 2016. Her evidence confirmed that she saw Mr Pauling on three occasions on 8 May 2016 and once on 10 May 2016.
 Ms Ranga explained that as a consequence of her first assessment of Mr Pauling at around 7.30 am on 8 May 2016, she recorded that he advised that he had a history of asthma and had been using a lot of Ventolin. 4 She diagnosed him as having a viral chest infection and observed that he did not present with any of the clinical signs associated with asthma. She advised that he could continue to take his Ventolin inhaler but that a nebuliser and oxygen were unnecessary. She suggested that he not use his Ventolin for one hour and that he should then return for a reassessment.
 Mr Pauling returned approximately one and a half hours later to see Ms Ranga. Ms Ranga’s evidence was that he appeared quite frantic and began to hyperventilate but did not display wheezing in a manner consistent with an asthmatic wheeze. Her evidence was that she told Mr Pauling that his wheezing appeared forced and that if he calmed down, his breathing would settle. 5 Ms Ranga gave Mr Pauling a sick note for that day. Ms Ranga’s evidence was that Mr Pauling left her office but appeared unhappy that he had not been given medication.
 Ms Ranga’s evidence was that Mr Pauling returned for a third consultation at around 5.15 pm on 8 May 2016 and that he was more aggressive and requested a Ventolin nebuliser and oxygen. She commenced preparing a nebuliser so as to give him reassurance but confirmed that she thought his breathing difficulties were anxiety related. In the course of this consultation, Ms Ranga was concerned at Mr Pauling’s demeanour and the extent to which he continued to make rude comments about her treatment of him.
 Ms Ranga’s evidence was that, on 10 May 2016 she discussed Mr Pauling’s condition with a paramedic, Mr McCaw, who had also seen Mr Pauling and agreed that Mr Pauling should be given oxygen and Ventolin to appease him if he returned, but should be sent offsite for a further assessment.
 Ms Ranga’s evidence was that Mr Pauling attended the clinic again at around 6:15 pm on 10 May 2016 and that he acted erratically and started shouting accusations at her. She said:
“69. I tried not to engage with Mr Pauling. I said to him that I assumed he had come for a Ventolin nebuliser. He said: “Yeah coz you don’t know what you’re doing, I need Ventolin. I’ve just been to the medic and he had to give me O2… You are dangerous and don’t know anything about asthma.”
70. I said to Mr Pauling that if he was going to cause trouble, I would ask him to leave. I said firmly: “sit down and be quiet.”
71. Mr Pauling sat down in the chair next to my desk and continued to make comments about his treatment. Such as: “you are going to kill someone” and “you don’t know what you’re fucking doing.” His tone was aggressive.
72. I said: “If you continue to carry on then you have to leave. I do not have to treat you.”
73. He did not stop making comments. He said things like: “you’re fucking stupid” and “you need to go and do some schooling”. I told Mr Pauling to get out. He refused to leave. I asked him to get out again and he did not move.
74. I said something like: “I am going to ask someone in the waiting room to sit in on the treatment, as you are starting to make me feel quite uncomfortable.”
75. He told me I was a “fucking idiot” and that I didn’t know what I was doing.
76. I stopped preparing the Ventolin nebuliser and attempted to telephone security and then the health and safety officers. There was no answer from either of them.
77. I saw Mr Pauling get out his mobile phone and make a telephone call.
78. While he did this, and once I knew that security would not be attending, I got up and went out to the waiting room. I saw Keith Giles in the waiting room. I asked Mr Giles to come back into my office.
79. When I returned to the office with Mr Giles Mr Pauling immediately became quiet for a few minutes. I finished preparing the Ventolin nebuliser and gave Mr Pauling the mask to put on.
80. When his nebuliser began he resumed making accusations about his treatment and other statements. I was sitting at my desk right next to the chair he was sitting on to have his Ventolin nebuliser. I was pretending to type my notes up so I would not have to look at him and in the hope that it would not antagonise him further.
81. I recall that during his treatment Mr Pauling began looking up medical websites on his phone. He pushed his mobile phone very close to my face and said things like: “look at this” and “see you are wrong”. I saw that he was trying to show me websites which outlined how asthma affects the upper airways. He said to me: ““you are going to kill someone someday, you need to get some fucking schooling”.” 6
 I note that, in her evidence, Ms Ranga confirmed that she did not proceed to call security. However, she confirmed the extent to which Mr Pauling’s conduct was aggressive and insulting. Ms Ranga confirmed that she was upset by this behaviour and subsequently reported it to Roy Hill Human Resource personnel.
 Mr Giles is a Roy Hill employee who was attending the clinic on 10 May 2016. He was asked by Ms Ranga to sit in on part of her consultation with Mr Pauling. His evidence confirmed that, whilst Mr Pauling was using an oxygen mask, he continued to talk and that Ms Ranga told him that he needed to keep the mask on his face and calm down. Mr Giles confirmed that Mr Pauling loudly asserted that Ms Ranga was not listening to him and that he had asthma. Mr Giles was concerned that Mr Pauling’s behaviour indicated that he might physically harm Ms Ranga and moved closer to him so as to be able to intervene. Mr Giles’ evidence was that:
“20. I recall that David did not calm down and I heard his voice get louder, stronger and more aggressive when he was speaking to the nurse. In particular, I saw and heard David say to the nurse that she is “fucking going to kill someone” and he swore at her numerous times (though I cannot now recall exactly what he said). At this time, I saw David’s eyes become very glassy and he was glaring at the nurse. I also recall thinking that he appeared agitated. This went on for approximately two to three minutes.
21. The nurse was very calm and collected during this time but I recall thinking that she looked worried and intimidated when I looked at her eyes. At one point, I saw the nurse step back and away from David.
22. At this time, I said to David that he needed to “calm down and take his treatment”. In response, I saw and heard him say to me, “ok Keith”, and put the oxygen mask back on his face but he continued to speak to the nurse and myself. I also recall saying to David that he could not speak to a professional person in the way he was speaking to the nurse and that he needed to lower his voice.” 7
 Mr Giles’ evidence was that after Mr Pauling left the room he observed that Ms Ranga was upset following the incident.
 Mr Csermelyi is another Roy Hill operational employee. His evidence was that he was at the medical centre on the evening of 10 May 2016 and saw Mr Pauling leave the nurse’s office and say, in a loud voice, that the nurse “needed to do some study before she fucking killed someone”. 8
 Mr McCaw is an intensive care paramedic who works at the Roy Hill site. Mr McCaw visited Mr Pauling around 4.00 pm on 10 May 2016 at a work site clinic, at the request of his supervisor. He explained that his assessment of Mr Pauling’s condition was such that he was not suffering from asthma or any particular respiratory problem. His evidence was that:
“23. I listened to David as he was breathing. I saw and heard that David had some sort of respiratory wheeze. It appeared to be somewhat self-induced, as a result of him forcing air out through his mouth. I said to him that the noise was coming from his upper airway tract not his lower airway tract. Asthma is a disease of the lower airway tract. I said to David that I could not detect any symptoms of asthma at that time.
24. I said to David that his wheeze was possibly the cause of constriction in his upper airway passages and that he should fly out to have a further medical assessment if he felt that it was necessary, because there are a number of major conditions that can affect the upper respiratory tract, which are not asthma. In my opinion I did not suspect that David had any type of upper respiratory tract condition but offered him the opinion of seeking further medical treatment.
25. I said to David that he was not currently suffering from asthma. He said Katherine had given him a nebuliser when he last presented to her and that it made him feel “miles better”. He said to me: “you wouldn’t be able to give me a nebuliser, because you don’t have a nebuliser here”. I did not say anything in response. I did have a nebuliser, but David was not suffering from asthma, so he did not need it and I did not offer it to him.
26. I said to David that if it would help him, then I could give him some oxygen. I do not recall David asking me for the oxygen. I offered David oxygen to pacify him and demonstrate that I was prepared to accept what he was saying and provide him with some treatment. Following my assessment of David, I administered oxygen to him, using an oxygen mask. He had the oxygen mask on for around 6 minutes. I did not see any visible change in David after he received the oxygen. I went to speak to David’s supervisor, about him going off site for a respiratory assessment, while he received the oxygen. I recall that I said to his supervisor that it was not urgent or life threatening and he should take David back to the village.” 9
 Mr McCaw’s evidence confirmed his subsequent discussions with Ms Ranga.
 Mr Cooper is the Roy Hill Mining Superintendent. His evidence went to his role and the extent to which he passed all of the information provided to him in the course of the subsequent investigation into Mr Pauling’s behaviour on to the Human Resources Department and did not ever recall receiving a handwritten complaint dated 9 May 2016, from Mr Pauling.
 Ms West is the Roy Hill Superintendent Human Resources Mine and Processing. Her evidence went to the basis for Mr Pauling’s employment, including his employment contract and the Roy Hill policy requirements specified in a Code of Conduct. She confirmed that Mr Pauling had completed the online “Bullying and Harassment” training. 10 She also confirmed that, as part of his pre-employment checks, Mr Pauling had completed a pre-placement medical assessment on 11 September 2015 in which he advised that he did not suffer from any lung/breathing problems or asthma.11
 Ms West confirmed that, after being made aware of the incidents on 8 and 10 May 2016, Roy Hill human resource management personnel obtained statements from the personnel involved and that Mr Pauling was stood down on pay from 14 May 2016 whilst a formal investigation was undertaken. This involved interviews with Ms Ranga, Mr Pauling, Mr Giles, Mr McCaw and Mr Wilkinson.
 Ms West’s evidence went to the provision, to Mr Pauling, on 14 June 2016, of a “Show Cause” letter directing him to attend a discussion on 15 June 2016. She gave evidence about the provision of further correspondence inviting Mr Pauling to provide additional information and a meeting on 21 June 2016, which Mr Pauling attended with a support person. Ms West confirmed that, following this meeting, Roy Hill determined to dismiss Mr Pauling and a letter to this effect was sent to him on 24 June 2016.
 Mr Lenz is the Roy Hill General Manager People Health and Safety. His evidence went to his involvement in the investigation of the matter and to his interviews with Mr Pauling. Mr Lenz was concerned that the allegations relative to Mr Pauling’s behaviour on 10 May 2016 were not sufficiently clearly put to him, and, as a consequence he instructed that a second “show cause“ letter and meeting invitation be provided to him. 12 Mr Lenz noted that Mr Pauling showed no remorse for his behaviour toward Ms Ranga on 10 May 2016 and that his behaviour was clearly inconsistent with the values expected by Roy Hill. After this meeting, on 21 June 2016, Mr Lenz concluded that Mr Pauling would be dismissed and signed the termination of employment advice on 24 June 2016.
 Before considering the relevant provisions of the FW Act, I have set out my conclusions about the relevant facts.
 I have concluded that Mr Pauling elected not to advise Roy Hill that he had a history of asthma, when he completed his pre-employment medical, but that this was not relevant to the termination of his employment. There is no evidence which indicates that this pre-employment medical advice was taken into account in the termination of employment decision.
 Mr Pauling agreed to comply with the Roy Hill code of conduct and had participated in training about that code.
 It is clear that Mr Pauling had been involved in various matters which caused Roy Hill management some concern. The evidence of Mr Heseltine and Mr Lenz confirms this. 13 However, as the decision-maker, Mr Lenz’ evidence makes it clear that it was the 10 May 2016 conduct that resulted in the employment termination.
 I am satisfied that Mr Pauling was frustrated at his diagnosis on 8 May 2016, by Ms Ranga, and that he made his frustrations known to her. I am not satisfied that his behaviour toward her on that day was so inappropriate that it warranted disciplinary action including termination of employment or that his behaviour on that day was a determinative factor in the termination of employment decision. Again, the evidence of Mr Heseltine and Mr Lenz confirms this.
 I am not satisfied that the diagnosis conducted by Ms Ranga was necessarily wrong or, in any event, that it provided a legitimate basis for Mr Pauling’s conduct on 10 May 2016. It seems to me that Ms Ranga’s diagnosis may well have been correct as at that day, just as the subsequent diagnosis by Dr Habashy on 11 May 2016 must have been based on MR Pauling’s presentation to him on that day.
 I am not satisfied that Mr Pauling made a complaint about Ms Ranga at the 9 May 2016 pre-start meeting, or that he then submitted a three page written complaint. Mr Pauling could have called witnesses to substantiate his position in this respect but did not do so. Mr Pauling’s evidence, in this, and numerous other respects, lacks credibility. In any event, the making of a complaint relative to 8 May 2016, does not excuse Mr Pauling’s behaviour on 10 May 2016.
 The evidence of Ms Ranga and Mr McCaw confirms that they discussed Mr Pauling’s condition on 10 May 2016 after they had both separately seen him. I do not consider that this discussion represented any form of inappropriate behaviour or that it provided a basis for Mr Pauling’s behaviour on 10 May 2016.
 I have preferred the evidence of Ms Ranga about the events of 10 May 2016 and have concluded that Mr Pauling’s behaviour toward her was aggressive, threatening and insulting. I have concluded that Mr Pauling variously asserted that Ms Ranga did not know what she was doing, that she needed to get further schooling, and that she was going to kill someone. Whilst Mr Giles did not recall expletives in any but the last of these insults, I prefer Ms Ranga’s evidence about the overall consultation. In any event, even without the expletives, Mr Pauling’s behaviour, witnessed by Mr Giles, was, of its nature, threatening and insulting. I have concluded that, as Mr Pauling was clearly able to speak coherently during this discussion, he was acting deliberately and with intent.
 Mr Pauling’s diagnosed asthma of 11 May 2016 does not explain or justify his behaviour toward Ms Ranga on the previous day.
 I am satisfied that Mr Pauling was advised that he was stood down with pay and that this stand down was confirmed to him by Mr Heseltine on 14 May 2016 and, further by email advice 14 sent to him on the same day.
 I have also concluded that Mr Pauling received two “show cause” letters in June 2016, 15 which detailed the allegations made against him. Further that he participated in discussions with Roy Hill management about those allegations. At the second of those discussions, Mr Pauling elected to have a support person present.
 Finally, I have accepted the evidence of Mr Lenz, that he made the employment termination decision after the 21 June 2016 discussion with Mr Pauling, and on the basis of his behaviour toward Ms Ranga, on 10 May 2016.
 Whilst Mr Pauling asserts that there were deficiencies in the process applied to empty his room at the village after the termination of his employment, I am not satisfied that this related to the termination of employment decision making process.
 This section states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take 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 the FWC considers relevant.”
 I have considered each of these factors in reaching a conclusion.
 Notwithstanding subsequent legislative changes, I have applied the general approach to the concept of a valid reason consistent with the decision of Northrop J in Selvachandran v Peterson Plastics Pty Ltd.16
 I have concluded that Mr Pauling’s rude and aggressive behaviour toward Ms Ranga represented a valid reason for the termination of his employment. Ms Ranga was undertaking her job as a nurse. I do not consider that her behaviour warranted Mr Pauling’s rude, aggressive and insulting actions and language and that, in this respect, Mr Pauling’s actions were fundamentally inconsistent with Roy Hill’s code of conduct.
 The termination of Mr Pauling’s employment occurred simply because of that behaviour.
Notification of the reason
 Mr Pauling was notified of the reason for the termination of his employment through the correspondence of 24 June 2016. 17
Opportunity to respond
 Mr Pauling was given the opportunity to respond to the allegations against him in writing and in the meeting held on 21 June 2016. At that point, the possibility of employment termination had been made patently clear to him.
Unreasonable refusal to allow a support person
 Mr Pauling had a support person with him at the “show cause” meeting on 21 June 2016.
Warnings about unsatisfactory performance
 The termination of Mr Pauling’s employment occurred because of his misconduct and was not the consequence of work performance concerns. Consequently the issue of warnings does not arise.
Size of the Roy Hill enterprise - procedure and access to human resource expertise
 Roy Hill is a substantial employer. I am satisfied that it has extensive policies and procedures and that its human resources personnel were involved in the investigation of this matter and the decision to terminate Mr Pauling’s employment.
Other matters considered relevant
 I have considered the extent to which Mr Pauling may have had impaired judgement over the 8-10 May 2016 period due to ill health. Mr Pauling’s own evidence confirms the extent to which his actions were the result of his frustration rather than his ill health.
 I do not consider other matters to be relevant.
 I do not consider that the termination of Mr Pauling’s employment was harsh, given the nature of his abusive behaviour toward Ms Ranga as the Roy Hill Nurse. The termination of his employment was not unjust as it followed a fair and comprehensive investigation process which established the relevant facts. That employment termination followed behaviour which could only be regarded, on an objective basis, as unreasonable.
 Accordingly, I do not consider that the termination of Mr Pauling’s employment was unfair. His application must be dismissed accordingly. An Order (PR586758) to this effect will be issued.
D Pauling on his own behalf.
S Billing counsel for the respondent.
Hearing (Determinative Conference) details:
1 Exhibit P1, para 8
2 Exhibit P1, para 13
3 Audio Recording, Transcript 20 October 2016, 10.38am
4 Exhibit R2, para 30
5 Exhibit R2, paras 44 - 47
6 Exhibit R2, para 69 - 81
7 Exhibit R3, paras 20 - 22
8 Exhibit R4, para 13
9 Exhibit R6, paras 23 - 26
10 Exhibit R5, para 9
11 Exhibit R5, para 10
12 Exhibit R2, Attachment SLW21
13 see Mr Lenz’s evidence, Transcript 20 October 2016, 3.27pm - 3.34pm
14 Exhibit R8
15 Exhibit R2, Attachments SLW20 and SLW21
16 (1995) 62 IR 371 at 373
17 Exhibit R2, Attachment SLW23
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<Price code C, PR586757>