| [2016] FWC 9090 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Watts
v
Oaky Creek Coal Pty Ltd
(U2015/13933)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 19 DECEMBER 2016 |
Application for unfair dismissal remedy – Dismissal unfair – Reinstatement appropriate – Reinstatement ordered – Orders for continuity of employment and service and compensation for lost remuneration – Deduction from amount ordered for compensation for lost remuneration.
[1] Mr Peter Watts applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to dismissal from his employment with Oaky Creek Coal Pty Ltd (OCCPL). Mr Watts was employed by OCCPL as a Surface Coordinator from 24 March 2014 until the day of his dismissal on 9 October 2015. Mr Watts was engaged at the Oaky Creek mine located near Tieri in Queensland.
[2] In summary, Mr Watts and another employee of OCCPL, were involved in an ongoing conflict. Given that the other employee was not called to give evidence in this matter (and for reasons that will be obvious) I will refer to him as Mr X. That conflict culminated in a number of exchanges between Mr Watts and Mr X on 21 August 2015 during working time and after work in the car park at the Mine site. Thereafter while travelling home from work, Mr Watts stopped his car in the vicinity of Mr X’s home. Mr Watts said that he did this because he believed that Mr X was following close behind him and was concerned that Mr X wished to continue the altercation at Mr Watts’ home.
[3] Mr X complained about Mr Watts’ conduct on 21 August 2015 and then took a period of sick leave. An initial investigation into the conduct of 21 August 2015 was undertaken by Mr Wandke, Surface Operations Superintendent and was later completed by Ms Hey, Health, Safety and Training Superintendent. The outcome of the initial investigation was a recommendation that Mr Watts and Mr X participate in mediation. On 2 September 2015 mediation was conducted by an external provider who recorded that Mr Watts and Mr X had achieved an agreed resolution.
[4] On 3 September 2015, the day after the mediation, Mr X made a formal complaint about Mr Watts conduct on 21 July 2015. A further investigation was conducted by Mr Campbell, Maintenance and Engineering Manager who recommended that both Mr Watts and Mr X be disciplined and that they attend further mediation and training in conflict resolution. After considering Mr Campbell’s investigation report, Mr Sauer, Operations Manager, determined to put the findings to Mr Watts and Mr X. Mr Sauer decided to dismiss Mr Watts for his part in the events of 21 July 2015. Mr X was dismissed for lying about those events during the investigation of his complaint.
[5] Mr Watts denies that he engaged in misconduct and maintains that there was no valid reason for his dismissal. In the event that the Commission determines that there was a valid reason for dismissal, Mr Watts contends that his dismissal was unfair because it was disproportionate to the nature of the misconduct.
[6] Mr Watts gave evidence on his own behalf. 1 Mr Watts also relied upon evidence of Mr Jason Palmowski, a reclamation works operator at OCCPL Creek mine.2 Evidence on behalf of OCCPL was called from:
• Mr Bradley Glenn Sauer, Operations Manager – Surface Operations OCCPL Creek; 3
• Ms Genevieve Rowena Hey, Health, Safety and Training Superintendent at OCCPL Creek mine; 4
• Mr Duncan George Campbell, Maintenance and Engineering Manager, OCCPL Creek mine; 5
• Mr Shaun David Charles Morris, Drilling and Gas Superintendent, OCCPL Creek mine; 6 and
• Mr Nicholas Charles Wandke, Surface Operations Superintendent OCCPL Creek mine. 7
[7] Mr Watts’ application was made within the time required in s. 394(2) of the Act. It is not in dispute that Mr Watts is a person protected from unfair dismissal as defined in s.382 of the Act. OCCPL has not asserted that it is a small business or that the dismissal was a case of genuine redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course.
[8] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:
(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.”
[9] The employer bears an onus of establishing that there was a valid reason for a dismissal.8 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”9 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,10 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.11 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship 12 or evinces an intention that the employee no longer intends to be bound by the employment contract.13
[10] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. However, as Vice President Hatcher observed in Bista v Glad Group Pty Ltd 14, the case law does not establish that a minor failing on the part of an employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be sound, defensible or well founded.15 His Honour also cited the majority judgement of Moore J in Edwards v Giudice16 where it was held that:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].” 17
[11] That judgement was relied on by Vice President Hatcher as authority for the proposition that, under the present Act, the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.
[12] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.18
[13] Mr Watts was dismissed from his employment by letter dated 9 October 2015. 19 The termination letter was under the signature of Mr Sauer. It is apparent from the letter that the decision to dismiss Mr Watts was based on Mr Sauer’s views about Mr Watts’ involvement in three interactions with Mr X that took place on 21 August 2015. Relevantly those incidents are described in the letter in the following terms:
[14] The letter stated that Mr Watts had “seriously misconducted himself” by behaving in a manner that was inconsistent with his employment contract and had breached Company policy in relation to discrimination and harassment policy. In this regard the letter states that Mr Watts’ behaviour towards Mr X on 21 August 2015 was unwelcome behaviour which created a hostile working environment for Mr X. In relation to the disciplinary outcome of termination of employment, the letter states:
“In reaching my decision, I have taken into account the matters raised by you in your written response, the verbal responses that you provided during the meeting which occurred on 15 September 2015 and other evidence obtained as part of the investigation. I have taken into account the fact that you believe there was an element of provocation from [Mr X]. I have also taken into account the considerable remorse you have expressed in your response to the show cause. I have also considered your service history and the impact any disciplinary action will have on you both personally and financially.
As against this, I have had regard to the seriousness of your conduct and the potential for it to have escalated into an altercation of a more significant nature. I have also had regard to the fact that you hold a management position with the company and that you are expected to lead by example at all times.
Having regards to your conduct, I have lost faith and confidence in you as an employee. Your conduct on 21 August 2015 was completely unacceptable and could have escalated into an even more serious incident. Peter, I simply cannot tolerate behaviour of the sort you exhibited on that day, regardless of the level of provocation you feel you were subjected to. I will not and cannot, as a Site Senior Executive, have any of my people exposed to threats or challenged to resolve work differences with violence. I have decided to terminate your employment with the company, effective immediately. You will be paid one (1) month in lieu of notice.”
3.2 Dealings between Mr Watts and Mr X prior to 21 August 2015
[15] Mr Watts has been employed in the mining industry for approximately 10 years. During that time Mr Watts has worked for a number of Mine Operators in different positions, including as a machinery operator, a business improvement specialist and most recently as the surface coordinator at Oaky Creek mine located at Tieri. Mr Watts accepted that this position was one of significant responsibility 20, was a leadership position21 and was in part responsible for ensuring compliance with OCCPL policies and procedures22.
[16] Tieri, the town near the OCCPL Creek mine and in which Mr Watts and Mr X resided, is a small town that has strong ownership of properties by the Glencore group of companies (the parent company of OCCPL) that are occupied by employees of Glencore. Because the town is so small, employees generally know where other employees live. Mr Watts knew where Mr X lived. The houses of Mr Watts and Mr X are approximately 240 meters apart.
[17] Mr Watts said that when he commenced employment with OCCPL he was one of two surface coordinators. The other surface coordinator at that time was Mr X. Mr Watts and Mr X reported to Mr Morris, who was at the time the Surface Superintendent, and Mr Morris reported to the Operations Manager, Mr Sauer. Upon the commencement of Mr Watts’ employment, he took over some of the responsibilities of Mr X. Mr Watts states that the division Mr X was responsible for was “dirt” and Mr Watts was responsible for “water”.
[18] After a three month probationary period, Mr Watts was advised by Mr Morris and Mr Sauer that Mr Watts would take over the remainder of Mr X’s responsibilities. Mr X ceased to hold the role of surface coordinator and moved to a role within drilling and gas. Mr X and Mr Watts continued to have dealings with each other during daily pre-start meetings, risk assessments and safety meetings but generally did not have much contact.
[19] Mr Watts states that it became apparent to him soon after commencing with OCCPL that Mr X had a problem with him. Mr Watts states that others would tell him that Mr X had been “running [him] down and badmouthing [him] around site” 23. Mr Watts raised the issue with Mr Morris soon after he commenced with OCCPL and recalls Mr Morris’ response that Mr X had been running him down since before he started.24 Mr Watts believes that Mr X’s problem with him related to Mr X’s belief that Mr Watts was taking over his position. Mr Watts did not raise his concerns with Mr X directly at the time.
[20] Mr Watts states that he raised concerns regarding Mr X’s behaviour towards him with Mr Morris and Mr Sauer on a number of occasions, and was told by Mr Morris that he had spoken with Mr X’s supervisor, Mr Matthew Bradley. In July 2015, following a leadership function for supervisors at the Mine, Mr Watts had a discussion with Mr Sauer about his issues with Mr X, during which Mr Sauer said:
“Let me tell you about how I handled a similar situation. When I first took on the job of CHPP Superintendent I witnessed the Maintenance Superintendent abusing some of my employees. I then waited until he was in his office and no-one was around, walked in, gave him a serve and walked out. I didn’t have any more problems after that”; then Mr Sauer laughed; then Mr Sauer said words to the effect of: ‘then when I became manager I made him redundant and if you don’t stop your shit stirring I’ll make you redundant.’…” 25
[21] Mr Watts became concerned for his job after Mr Sauer’s comments and although he did not consider that the situation with Mr X was being appropriately addressed or that he could control the situation, Mr Watts understood from Mr Sauer’s comments that he could not formally complain about Mr X’s conduct.
[22] In July 2015, Mr Watts raised an issue with Mr Wandke in relation to a contractor requesting that Mr Watts book him out of a box of SLAM (stop, look, assess, manage) books and a carton of UHT milk, because the contractor was not comfortable approaching Mr X. Mr Wandke told Mr Watts to attempt to resolve the issue with Mr X but that Mr Wandke would be close by should the discussion get heated. Mr Watts raised the issue with Mr X in his office. Mr Watts states that Mr X responded that he did not have access to the software required to complete the contractor’s request. Mr Watts responded to Mr X that he did have access to the system and offered to show him how to use it. Mr X responded to Mr Watts as follows:
“No you’re the fucking surface coordinator and I used to do all that when I was surface coordinator.” 26
[23] Mr Wandke intervened in the discussion at this time. Mr Watts left the conversation and does not know what Mr Wandke discussed with Mr X. Shortly after, Mr Watts was in a meeting in the Surface Operations room with Mr Wandke and others. Mr X entered the room, threw a carton of UHT milk on the desk and said words to the effect of:
“...there’s your fucking milk. I’ve never booked out milk for contractors and I’m not about to start doing it now.” 27
3.3 Incidents of 21 August 2015
[24] On 21 August 2015 Mr Watts commenced work around 6am and shortly thereafter noted that a hazard form stapled to an email had been placed on his desk. The email was from a contractor on site. The email was addressed to Mr X and related to a hazard notice regarding a star picket. Mr Watts understood this to mean that Mr X had received the email with the attached hazard notice but had decided to give those documents to Mr Watts. Mr Watts states that ordinarily an item like that would be dealt with by the person who received the email.
[25] Following the prestart meeting Mr Watts discussed the hazard notice that had been left for him with Mr Wandke. Mr Watts conveyed to Mr Wandke that it was not satisfactory for Mr X to pass the hazard notice to him. Mr Wandke agreed and took the hazard notice to discuss with Mr X. Later that day Mr Wandke told Mr Watts that he had discussed the hazard notice with Mr X and stated that Mr X had “blown up” and said that Mr Watts’ and his team were not doing their job. 28
[26] At around noon on 21 August, Mr Watts was walking through the building on the way to his office when he walked passed Mr X and another employee, Mr Reece Stewart. Mr Watts heard Mr Stewart ask Mr X how he was going. Mr Watts states that Mr X looked directly at him and loudly said:
“Good, except some fuckwits around here aren’t doing their job.” 29
[27] Mr Watts understood that this comment was in reference to the earlier issue about the hazard notice. Mr Watts went to his office, which he shared with Mr Stewart. When Mr Stewart returned to the office Mr Watts confirmed with Mr Stewart that Mr X was referring to Mr Watts. Mr Watts states that he recalled the conversation he had had with Mr Sauer at the drinks function at the Tieri Civic Centre and proceeded to Mr X’s office, stood in the doorway and said words to the effect of:
“If you’ve got a problem with me I’m ready to sort it out when you’re fucking ready.” 30
[28] Mr Watts maintains that this statement was not said in any angry manner. 31 Originally, Mr Watts did not accept that this statement, or subsequent behaviour in the car park, may have been seen as hostile by Mr X32 but conceded that he was hostile, at least in Mr X’s office33. Mr X’s desk was approximately four meters away from Mr Watts. After Mr Watts made the comment above, Mr X directed “string of profanities”34 at Mr Watts and Mr Watts walked away. As Mr Watts walked away, Mr X called after Mr Watts to “[G]et back here shit for brains”35. Mr Watts continued to walk away. Mr Watts estimates that this confrontation lasted no more than five to ten seconds. Mr Watts left the office to attend further appointments and returned to his office close to 2:00pm which, on a Friday, is approximately “knock-off” time.
[29] Mr Wandke who conducted the initial investigation into this incident, agreed that Mr X behaved inappropriately in relation to the star picket and that he should not have left the documentation on Mr Watts’ desk should have remedied the issue. Mr Wandke also took a statement from Mr Stewart which confirmed that Mr X had called Mr Watts a “fuckwit” and had directed his comments earlier that day to Mr Watts. Further, the statements taken by Mr Wandke included a statement from Mr Phillips, a contractor, who confirmed that Mr Watts walked away from the office door and Mr X called after him to come back.
[30] Mr Campbell who conducted the second investigation into the incidents on 21 August 2015 said that he could not confirm Mr X’s allegation that Mr Watts had stood over him during the discussion in the office. Mr Campbell interviewed Mr Phillips who had witnessed the incident. Mr Phillips statement was that he heard Mr X say something like: “Come back here. 36 Mr Campbell also agreed that Mr X lied to him in the investigation by stating that his comments made earlier in the day were about a contractor, when in fact the comments had been made about Mr Watts.
[31] Under cross-examination, Mr Sauer denied giving Mr Watts advice to the effect that he should verbally abuse Mr X to resolve issues between them or that he told Mr Watts that if a complaint was made and one employee was dismissed both employees would be dismissed. Mr Sauer did agree that he had given Mr Watts an example to illustrate that a direct conversation between Mr Watts and Mr X might resolve the situation. In response to the proposition that he had told Mr Watts to have a frank discussion with Mr X, Mr Sauer said he used the term “robust discussion” and told Mr Watts that he had held such a discussion with a “difficult colleague” at his level and the situation had been resolved. 37
[32] In relation to the office incident, Mr Sauer accepted that perhaps there was no basis to conclude that Mr Watts had adopted an aggressive tone on 21 August 2015 in Mr X’s office. 38 Mr Sauer made no conclusions as to any words used by Mr X following Mr Watts’ initiating the interaction in his office and did not know what was said.39 Mr Sauer conceded that he did not give any consideration to the fact that Mr Watts walked away from the confrontation when and did not concede that he had concluded that Mr X did in fact become abusive.40
3.4 The carpark incident
[33] Mr Watts’ evidence about the carpark incident can be summarised as follows. Mr Watts said that on 21 August 2015, two of his children were sick and home from school. Mr Watts’ wife sent a text message to Mr Watts around 2.00 pm asking when Mr Watts would be home as she needed his assistance with their children. Shortly after 2.00 pm Mr Watts left the building, went to the car park and got in his car to drive home.
[34] As Mr Watts was driving out of the car park, Mr X walked out of the turnstile at the entrance to the mine, approached Mr Watts’ car and waved his arms for Mr Watts to stop. Mr Watts stopped the vehicle, wound down the window and had a conversation with Mr X as follows:
“Mr X: ‘Oi what’s your fucking problem.’
[Mr Watts]: ‘I’m happy to have a chat in town about it if you like.’
Mr X: ‘No. Right here right now. What’s your fucking problem?’
[Mr Watts]: ‘Get out of my fucking way.’…” 41
[35] In his statement, Mr Watts states that he made the comment about having a chat in town because at the time it was 2:05pm and school would finish at 2:30pm. It took between 15 and 20 minutes to get from the mine to Mr Watts residence and it was then about 5 minutes to get from the house to the school. Mr Watts needed to be at his home in enough time so that he could watch his two children who were at home while his wife went to pick up their third child from school and then to a chemist. Mr Watts then left the carpark and drove towards Tieri.
[36] There was CCTV footage of the carpark at the relevant time. That footage shows Mr X entering the carpark and walking to the right in the direction of his vehicle. The footage then shows that Mr X deviated from his course and walked to the left. Under cross-examination Mr Sauer had the following exchange with Counsel for Mr Watts in relation to the footage:
“Can you tell me what your independent recollection of what happened in the car park was?---I say again quite clearly [Mr X] was walking towards his vehicle. Something or someone, which I believe to be Mr Watts, has indicated for him to deviate from his course and go and have a conversation. The conversation or the contents of the conversation I base on Mr Watts's show cause notice which includes: "I'm on my way home, get out of my way. I'm happy to have a chat about this in town."
Do you accept or not accept that Mr X walked of his own volition towards Mr Watts? Did you draw any conclusion about that?---Yes, Mr X was on his - on a clear direction towards his vehicle. Something or someone at the time - I believe it's someone - called him away from that direction.” 42
[37] Mr Sauer continued to maintain that Mr X did not initiate the confrontation in the car park but rather, Mr X was heading towards his vehicle and was then, for some reason, caused to deviate to the left towards Mr Watts. Mr Sauer was taken to Mr X’s letter of termination dated 9 October 2015 which was drafted for Mr Sauer by the HR department at the mine but was signed by Mr Sauer. 43 Mr Sauer agreed that in Mr X’s termination letter he said that Mr X had initiated the interaction in the car park44 and it was not suggested that the interaction was initiated by anyone else45.
[38] Mr Campbell said that his investigation of the carpark incident established that Mr X embellished his version of events and the CCTV footage did not correspond with what Mr X told him about the incident. In particular, Mr X had given the impression that Mr Watts drove over to him in the carpark and also stated that during the incident Mr Watts opened the door of his vehicle and hit Mr X in the arm as Mr Watts got out of his vehicle. Mr X also alleged that Mr Watts was yelling and screaming.
[39] Mr Campbell agreed that at around 2.00 pm on 21 August 2015 there would have been lots of people in the carpark, but said he did not conduct any enquiries or look at CCTV footage to find out who else might have been in the vicinity of incident between Mr Watts and Mr X. Mr Campbell also said that he had not looked at records to establish whether other employees had swiped in or out of the carpark around that time. Mr Campbell agreed that this information may well have been valuable in relation to the investigation he was conducting and said that there was no reason why he had not considered these matters. 46
3.5 The incident in Tieri
[40] As previously noted, after the discussion in the car park with Mr X, Mr Watts proceeded to drive home. Mr Watts said that when he turned off the highway he noticed Mr X in his car behind him on the street leading to the street on which Mr Watts’ house was. Because Mr X was on foot as he approached Mr Watts in the car park, Mr Watts concluded that Mr X must have gone “out of his way to catch up” 47 to him. Mr Watts also believed that it was Mr X’s intention to continue the argument that had occurred in the car park at Mr Watts’ house. To avoid a confrontation at his home, Mr Watts pulled over at the “nearest place” he could without deviating from his usual route home.
[41] Attached to Mr Watts’ statement is a picture from Google Earth on which Mr Watts has indicated where he noticed Mr X. Mr Watts also indicated where he pulled over and the location of his house and Mr X’s house. Mr Watts said that he pulled over on the corner of Mr X’s street, which is one house away from Mr X’s residence and two blocks from Mr Watts’ residence. From where Mr Watts stopped his vehicle he had a very clear view of Mr X’s house. 48 Mr X did not stop where Mr Watts had stopped and did not drive to his own home, instead Mr Watts states that Mr X turned in the opposite direction and drove towards, and passed, Mr Watts’ residence. Mr Watts immediately proceeded to his residence, changed out of his work clothes and went to golf taking his son with him.
[42] Mr Watts did not accept that he stopped at the position that he did with an intention to intimidate Mr X. 49 Mr Watts maintained that he stopped here he did, and not earlier at a point where there was a vacant piece of land, because he did not notice Mr X behind him until he reached the intersection.50 Given that Mr Watts accepted that it was Mr X’s normal route home, I asked Mr Watts why he pulled over if Mr X was simply going on his normal route to his home to which Mr Watts responded:
“Just given that when we left the car park he was on foot, like, a ways from his car and I was leaving, and that’s what I though, yet by the time we got back to town he’s caught right up to me, and given that he’s tried to follow me out of the office and then approached me again in the car park and screamed at me through the car door – the car window, that was my assumption.” 51
[43] While playing golf on the afternoon of 21 August 2015, Mr Watts received a phone call from his wife who informed him that Mr Brad Fewtrell, a police officer in Tieri, had attended at Mr Watts’ residence in relation a complaint made by to Mr X. Mrs Watts told Mr Watts that Mr Fewtrell had said he would return later in the evening. After finishing golf Mr Watts contacted Mr Fewtrell. Mr Fewtrell said to Mr Watts that he “didn’t make much of it” 52. This was the extent of Mr Watts’ involvement with Mr Fewtrell.
[44] Mr Watts states that he did not threaten Mr X, or threaten violence against Mr X. Mr Watts considered that he approached Mr X in the office in the way suggested by Mr Sauer at the Tieri Civic Centre and that Mr X had made the argument more serious than it actually was. Mr Watts accepts that he used swear words when talking to Mr X on 21 August however says that swearing at the mine is common among staff, including upper management.
[45] Mr Campbell confirmed that Mr Watts had claimed during the investigation that he stopped his car because he was concerned that Mr X was following him. Mr Campbell said that he did not ask Mr X during the investigation whether he was following Mr Watts and had not considered whether this was the case. Mr Campbell also confirmed that he was aware that Mr Watts was in his car when the altercation with Mr X took place and that Mr X had walked away from Mr Watts’ car to his own car which was a distance of 10 to 12 metres away. Mr Campbell said that there was footage showing the cars going down the highway but it had not been included in the footage that was tendered to the Commission.
[46] Mr Sauer originally became aware of the events of 21 August 2015 after receiving a phone call from Mr X. Mr Sauer told Mr X that it did not sound as though the matter was work related and that if Mr X wished to report the matter to the police he should do so. Following Mr X’s phone call, Mr Sauer was contacted by Mr Winter, Technical services Manager, who discussed with Sauer a “big blow up”. Mr Sauer then contacted Mr Wandke and Mr Stewart. Mr Stewart advised Mr Sauer that Mr Watts and Mr X had had a “blue” and that he was currently with Mr Watts playing golf.
[47] Under cross-examination, Mr Sauer said that he had not asked Mr X whether he followed Mr Watts when he left the carpark and that he had not asked Mr Campbell whether that question had been asked during Mr Campbell’s investigation of the incident. 53
3.6 Events following 21 August 2015
[48] Mr Watts next attended for work at 6am on Monday, 24 August 2015. Mr Watts’ evidence is that after the prestart meeting on that date, Mr Watts asked Mr Sauer if he wanted to talk to him. Mr Watts asked Mr Sauer this because Mr Sauer had phoned Mr Stewart on the previous Friday while Mr Watts was playing golf with Mr Stewart. Mr Watts and Mr Sauer walked from the coal handling preparation plant to the main surface building (approximately 500m). Mr Watts states that the following conversation took place:
“Me: [Mr Watts] if anyone should be putting in a complaint in (sic) it should be me.
Mr Sauer: Well, I’d advise you not to because if a formal complaint is made and one goes, then both go.
Me: That’s a bit disappointing coming from you Glenn.
Mr Sauer: Well in my experience if one goes both go and if the other doesn’t, things are made that hard for him he ends up leaving.” 54
[49] Mr Watts understood this to mean that if he complained about Mr X then both employees would be terminated or if Mr Watts was not terminated at the time then working would be made difficult for Mr Watts so it was not feasible for his employment to continue.
[50] On 25 August 2015, Mr Watts and Mr Wandke had a discussion about the events with Mr X on 21 August 2015. Mr Watts gave Mr Wandke his version of the circumstances surrounding the argument between he and Mr X. Mr Wandke took notes of the conversation. Mr Watts states that at the end of the conversation Mr Wandke said that he could not see that Mr Watts had done anything wrong. 55 Later on 25 August 2015, Mr Watts was approached by Mr Wandke and Ms Hey who requested that Mr Watts sign a typed version of Mr Wandke’s notes which Ms Hey called Mr Watts’ statement. Despite being uncomfortable with the request, Mr Watts signed the typed statement.
[51] On approximately 27 August 2015, Mr Sauer approached Mr Watts and asked if he would be prepared to participate in mediation with Mr X. Mr Watts agreed to participate in mediation. Mr Watts asked Mr Wandke if he would be his support person during mediation. Mr Wandke advised Mr Watts that he could not act as Mr Watts’ support person. Mr Watts requested if another employee, Mr Martin, could act as his support person, which was not accepted by Mr Wandke. Mr Wandke did agree that Mr Stewart could be Mr Watts’ support person for the purposes of mediation.
[52] Mr Watts and Mr X participated in mediation conducted by a psychologist from Gryphon Psychology. Mediation ended in an agreement being reached between Mr Watts and Mr X. That agreement included that Mr Watts’ and Mr X would be professional and civil in their dealings with each other. Mr Watts states that at the time of mediation, he was not aware of the full extent of Mr X’s allegations against him in relation to the events of 21 August 2015. Mr Watts accepts that he refused to shake Mr X’s hand following the mediation session. 56 Mr Watts maintains that he did not see the need to shake Mr X’s hand and that they could continue to work together without shaking hands.57
[53] The evidence from the witnesses for OCCPL in relation to the initial investigation can be summarised as follows. Mr Sauer said that on the morning of Monday, 24 August 2015, he brought the incidents of 21 August to Ms Hey’s attention as Mr Sauer considered it was likely there would be a complaint that Ms Hey would need to deal with. Mr Sauer agrees that he spoke to Mr Watts following the production meeting that morning but does not agree that the conversation occurred as recalled by Mr Watts.
[54] On Tuesday, 25 April 2015, Mr Sauer asked Mr Wandke to look into the events of Friday, 21 August 2015 because Mr Wandke was Mr Watts’ Superintendent. When Mr Sauer later became aware that Mr X had left the workplace on Monday afternoon and attended a local doctor, Mr Sauer instructed Ms Hey to formally investigate what had occurred because it was to become a rehabilitation matter. Mr Sauer understands that Ms Hey investigated the matter over the week of 24 August 2015. During this week, Mr Sauer was approached by Ms Hey who asked Mr Sauer if mediation could be conducted. Mr Sauer approved the engagement of Gryphon Psychology for this purpose. During cross-examination, Mr Sauer agreed that the mediation was about the events of 21 August 2015, 58 and that his understanding was that a mediation session held on 2 September 2016, was successful. Mr X returned to work following the mediation session.
[55] Mr Sauer’s understanding of the outcome of the mediation was confirmed in the following exchange with Counsel for Mr Watts during cross-examination:
“You were aware in the first week of September, weren't you, that the mediator was reporting to probably Ms Hey, as I understand it, but certainly to OCCPL Creek Mines, that the matter had been resolved and outlined a basis on which it had been resolved?---That's correct.
Which included, amongst a range of things, the fact that there would be better communication between the two, that they would be - you're nodding your head. I assume you are saying, yes, that was there?---I'm waiting for you to finish your question.
That there would be getter communication between the two?---That's part of it, yes.
And that they would act more professionally towards one another in their conduct at work?---Yes, yes.
That they would discuss matters as they happen and not allow things to bottle up?---That's correct.
That they both expressed the need to work together in an amicable and professional manner?---That's right.
That there be a drawing of a line in the sand. That is, that they start again for the future, start afresh?---That's right.
And that they attend a follow-up meeting to assess their progress?---That's correct.
And I think there was some reference, but it's not jumping out at me at the moment, but I thought there might have been some reference to undertaking some training?---I can't - it's what's in the report.
You were aware of all of this. You were aware of all of this in the first week of September at about the time that they went to the mediation; correct?---Yes, yes.” 59
3.7 Mr X’s complaint
[56] Mr X lodged a formal complaint regarding Mr Watts’ behaviour on 9 September 2016. The complaint related to the incidents on 21 July 2016. Mr Sauer said that he was not aware of any further issues between Mr X or Mr Watts between 2 September when the mediation was completed and 9 September when Mr X lodged the formal complaint.
[57] Mr Sauer asked Mr Campbell to investigate Mr X’s complaint. Mr Campbell advised Mr Sauer that both men had a case to answer and provided Mr Sauer with a report of his investigation. Mr Campbell’s report did not make any findings about continued harassment of Mr X by Mr Watts following 2 September 2015 60 and recommended:
“Further review of previous notes concerning occasions of aggressive behaviour by Mr Watts ought to be undertaking and those notes considered.
Disciplinary action should be taken against Mr Watts for his aggressive tone when confronting Mr X, for continuing the confrontation with Mr X in the car park, and then continuing the confrontation in town by parking close to Mr X’s home.
Further mediation and training conflict resolution with Gyphon Psychology be scheduled for Mr Watts and Mr X.” 61
[58] Mr Campbell gave evidence about his investigation and confirmed that he interviewed Mr X on 10 September 2015. Mr Campbell’s notes of that interview are in evidence. In those notes it is recorded that Mr X believed that issues with Mr Watts were resolved by mediation but decided to make the complaint because desks in an office he shared with Mr Stewart had been moved while Mr X was on annual leave. It is also recorded that Mr X alleged that Mr Watts had been walking past Mr X’s house every day. Notes of an interview with Mr Stewart that was conducted by Mr Campbell indicate that the desk was moved by Mr Stewart so that a cable would not be a trip hazard. Those notes also indicate that Mr Stewart stated that Mr Watts was not coming into the office shared by Mr Stewart and Mr X any more than usual.
[59] Under cross-examination, Mr Campbell said that during the investigation he asked Mr X what he had done informally to resolve issues with Mr Watts and was told that Mr X had not tried to resolve the situation informally. Mr Campbell also confirmed that the subject matter of his investigation was the same as the subject matter of the mediation between Mr X and Mr Watts. Further, Mr Campbell confirmed that there was nothing that came to light in his investigation that demonstrated that there was any further incident between Mr Watts and Mr X after 21 August 2015.
[60] Upon receiving Mr Campbell’s report, Mr Sauer requested that Mr Coburn, HR Superintendent, prepare a letter to Mr Watts for the purposes of formally putting the allegations to him for response. On 24 September 2015, Mr Sauer met with Mr Watts to provide him the letter setting out the allegations and to set a time for Mr Watts to respond to the allegations. On 29 September 2015, Mr Watts emailed his response to Mr Sauer. In that response, Mr Watts stated that he had not intended to threaten or intimidate Mr X. Mr Watts admits that he swore at Mr X, apologises for doing so and states that if he had his time over again he would convey the message differently. Mr Watts also stated that he wishes he had not stopped in the carpark when Mr X indicated that he should do so. In relation to stopping his car near Mr X’s home, Mr Watts’ explanation is that he believed Mr X was following closely behind him and did not want a further altercation near his own home where his children and wife were located. 62
[61] Mr Sauer said that he considered Mr Watts’ response and discussed the matter with Mr Snape, General Manager of OCCPL Creek mine. Mr Snape gave Mr Sauer approval to dismiss Mr Watts. Prior to doing so, Mr Sauer gave Mr Watts a final opportunity to resolve the matter. On 8 October 2015, Mr Sauer met with Mr X and Mr Watts in his office. Mr Sauer advised Mr Watts and Mr X that he “would be disciplining both of them” as a result of their actions on 21 August 2015 and that disciplinary action could include dismissal. Mr Sauer wanted to give them a chance to see if they could work out their issues and continue to work together.
[62] The following day Mr Sauer terminated Mr Watts’ employment. In making the decision to dismiss Mr Watts from his employment, Mr Sauer considered that it was more probable than not that on 21 August 2015:
“(a) Mr Watts had an initial heated confrontation with Mr X and as part of that confrontation said words to the effect of: “If you have a problem then I am ready to sort it out when you’re fucking ready”. I considered that Mr Watts behaved in a manner that was hostile, intimidating and threatening towards Mr X.
(b) Mr Watts had a further heated exchange with Mr X in the car park at the mine when he said to Mr X words to the effect that, he was willing to sort the issue out in town if Mr X wanted to, meaning that Mr Watts wanted to “fight” Mr X. I also took into consideration that Mr Watts said to Mr X words to the effect of, “Get the fuck out of my way.” In the circumstances, I was satisfied that Mr Watts behaved in a manner that was hostile, intimidating and threatening towards Mr X.
(c) Mr Watts, on leaving the carpark, proceeded to Tieri and parked close to Mr X’s house. I considered Mr Watt’s explanation as to why he parked his car near Mr X’s home to not be plausible, particularly given the comments made to Mr X in the car park directly prior to when Mr Watts left the mine that day.” 63
[63] Under cross-examination, Mr Sauer agreed that in making the decision to dismiss Mr Watts from his employment he did not take into account that: there had been ongoing conflict between Mr Watts and Mr X for some time 64; the conflict management strategies used by Mr Watts, Mr X and their respective managers had contributed to the situation65; the matter had been resolved by mediation66; or that there had been no deterioration of the relationship between Mr Watts and Mr X following the incident67. Mr Sauer accepted the proposition that Mr X is a liar and had lied to him.68 Mr Sauer also accepted that it was not suggested in the letter of termination to Mr Watts that he had in any way been dishonest during the investigation69 or that Mr Sauer had given any evidence in this matter that Mr Watts was dishonest during the investigation70.
[64] Mr Watts stated that he did not refuse to shake Mr X’s hand but maintains that given Mr X’s conduct during the meeting he did not have much of an opportunity to participate in the meeting. Mr Watts also stated that had Mr Sauer said that if they did not shake hands they would be dismissed Mr Watts would have jumped up and shaken Mr X’s hand. The next day, Mr Watts met with Mr Sauer who thanked Mr Watts for his honesty during the investigation and informed Mr Watts that his employment was terminated.
3.8 Other relevant issues
[65] Mr Sauer states that a number of employees or contractors have raised concerns with him regarding Mr Watts’ behaviour. Mr Sauer has informally discussed some of these matters with Mr Watts but as no formal complaint has been made arising out of these concerns, Mr Sauer took no further action in respect of them. Further, Mr Sauer agreed in cross-examination that Mr Watts was dismissed as a result of the events of 21 August 2015 71 and that the events involving Mr Watts and other employees in the preceding 18 months were not related to the events of 21 August72.
[66] Mr Watts does not recall being trained on the Glencore Code of Conduct or the equal opportunity policy prior to the incident on 21 August 2015. Mr Watts’ experience is that there was never talk of ongoing education at the mine in relation to harassment, workplace bullying or similar. However, Mr Watts did concede that he did attend training on the Code of Conduct prior to 21 August 2015. 73 Mr Watts accepted that it was an expectation of his role that would appropriately manage conflict.74 Mr Watts also accepted that it was not new to him that part of the general responsibilities of OCCPL employees was respect for one another in the workplace.75
[67] Mr Watts states that swearing at OCCPL Creek is “incredibly common” for all people, all roles and all levels of management. Mr Watts has been sworn at my most of the management team, including Mr Sauer and Mr Campbell. Mr Watts has never been advised not to swear or that swearing could jeopardise his employment. Mr Palmowski agreed that swearing in the workplace is common. Witnesses for OCCPL said that while swearing in the workplace may occur, there is a difference between swearing that is directed at a person and swearing for the purposes of emphasising a point. Mr Sauer accepted that he occasionally swears at the pre-start meetings but that when he does it is to express urgency for particular task to be done and never in a way to denigrate someone.
[68] Mr Watts accepts that he could work on his interpersonal skills and that there is room for improvement. Mr Watts has not previously been disciplined for any reason but does accept that he had previously been spoken to regarding his interactions with others and which may not have shown that he had a good relationship with some people in his crew. 76 Mr Watts has accepted that his behaviour on 21 August by confronting Mr X in his office was unacceptable77 and was inconsistent with his obligation as a supervisor and leader at the workplace78.
[69] I do not accept that there was a valid reason for Mr Watts’ dismissal. I accept that there were incidents between Mr Watts and Mr X on 21 August 2015 in which Mr Watts’ conduct left something to be desired. However, I do not accept that the conduct was sufficiently serious so as to constitute a valid reason for dismissal. I have reached this conclusion for the following reasons.
[70] The incidents on 21 August 2015 must be viewed in the context in which they occurred. In particular, management of OCCPL was aware that there had been issues between Mr Watts and Mr X for some time. Mr Watts sought advice from Mr Sauer about how to resolve these issues, and on Mr Sauer’s evidence was advised that a “robust discussion” may assist in this regard. The evidence establishes that Mr X had engaged in inappropriate conduct towards Mr Watts and that Mr Watts had reported this to a number of managers.
[71] Mr X played a significant part in the incidents on 21 August 2015. The incidents commenced with Mr X behaving in an inappropriate manner by leaving an email and safety notice on Mr Watts’ desk. It is also the case that Mr X directed an inappropriate comment towards Mr Watts in the presence of Mr Stewart by referring to Mr Watts and his team as “fuckwits”. It was confirmed that this comment was directed to Mr Watts and that Mr X lied about this during the investigation of the incidents of 21 August by saying that he was directing the comment at a contractor.
[72] Mr Watts responded to this comment in an inappropriate manner by going to the door of Mr X’s office and making what he conceded to be a hostile comment to Mr X about sorting out their issues. However I do not accept that Mr Watts conduct was intimidating or threatening. While Mr Watts swore, the offending word was not directed at Mr X in a derogatory or insulting manner but rather was used to emphasise Mr Watts’ point – that Mr Watts was ready to sort out the issue with Mr X when Mr X was “fucking ready”. This is in stark contrast to Mr X’s conduct earlier that day when he called Mr Watts a “fuckwit”.
[73] I do not accept that the conduct of Mr Watts was threatening or that it could reasonably have perceived to be so by Mr X. In this regard, Mr Phillips heard Mr X telling Mr Watts to “get back here”. Such a comment is not consistent with Mr X feeling threatened. There is also evidence that neither Mr X nor Mr Watts raised their voices. Further, I do not accept that Mr Watts “stood over” Mr X. Mr Watts stood in the doorway of the office and it is improbable that if Mr X felt threatened he would have told Mr Watts to come back when Mr Watts walked away.
[74] Mr Watts was advised by Mr Sauer to have a robust discussion with Mr X to sort out their issues. None of the managers to whom Mr Watts complained about the conduct of Mr X told Mr Watts to raise a grievance or use the grievance procedure to deal with it. Mr Watts did exactly what Mr Sauer advised him to do and initiated a robust conversation with Mr X. When Mr X did not respond well to the conversation, Mr Watts thought better of it and walked away.
[75] I do not accept that Mr Watts behaved in a hostile, intimidating or threatening manner in the carpark. The incident in the carpark was instigated by Mr X. The CCTV footage shows that Mr X initiated the confrontation by suddenly changing the direction in which he was walking and walking purposefully towards Mr Watts who was in his car at the time. Mr Sauer’s evidence that something caused Mr X deviate in the direction of Mr Watts’ car was not particularly convincing. There is no evidence that Mr Watts did anything to encourage Mr X to come over to his car. It is equally probable that Mr X saw Mr Watts in his car and went towards Mr Watts engage in an altercation.
[76] Significantly, Mr X lied about the extent of the car park incident. Mr X’s untruthfulness was more than mere embellishment. Mr X alleged that Mr Watts opened the door of his car and hit Mr X’s arm in the process. This was an outright lie and Mr X was probably motivated to tell such a lie by his stated intention – evidenced in his interview with Mr Campbell – that Mr Watts’ employment be terminated. 79
[77] Mr Watts did not get out of his car, and instead told Mr X to get out of his way and drove off. The fact that Mr Watts swore at Mr X telling Mr X to “get the fuck out of my way” does not amount to hostile, intimidating and threatening behaviour, in circumstances where Mr X instigated the altercation by approaching Mr Watts while Mr Watts was in his car and motioning for Mr Watts to stop. This is not the conduct of a person who was intimidated or had been intimidated earlier in the day. It does not follow that because Mr Watts told Mr X that he was willing to sort the issue out in town, that Mr Watts was indicating that he wanted to engage in a “fight” with Mr X. There was no allegation to that effect in the letter setting out the matters to which Mr Watts was required to respond, and I do not accept that there was a reasonable basis for Mr Sauer to draw that conclusion.
[78] In relation to the incident described by Mr Sauer as Mr Watts parking his car close to Mr X’s house, it is equally probable that Mr Watts simply stopped his car as he claimed to have done, because he was concerned that Mr X was following closely behind him and had gone to some effort to catch up with him in the journey from the carpark to Tieri. For Mr X to have done this is consistent with his conduct in initiating the altercation with Mr Watts in the carpark by walking away from the direction in which his own vehicle was parked and towards Mr Watts’ vehicle. Further, when Mr Watts drove out of the carpark, Mr X was still on foot and had to walk ten to twelve metres back to his own vehicle. Mr X then had to start his vehicle and exit the carpark. In a drive on an open highway where the speed limit is 100 km per hour, it is improbable that Mr X would have been close behind Mr Watts at the point that Mr Watts left the highway unless Mr X had gone to some effort to catch up with Mr Watts.
[79] Notwithstanding that Mr Watts alleged that Mr X had done so, no consideration was given to whether Mr X had done this. There was no analysis of when both cars exited the carpark and Mr X was not asked whether in fact he had been close behind Mr Watts when he stopped his car or whether he had been following Mr Watts. There was no attempt to identify other employees who would have been in the carpark at the relevant time and who may have witnessed the events. In my view there was no reasonable basis for Mr Sauer to conclude that Mr Watts’ explanation as to why he stopped his car was implausible and to accept Mr X’s statements about what this incident.
[80] Generally, the acceptance of Mr X’s statements and the conclusions reached by Mr Sauer based on those statements, are not reasonable in circumstances where Mr X lied about a number of allegations and where those lies were about matters of significance and were extremely damaging to Mr Watts. There is no indication that any consideration was given to the fact that Mr X lied about the conduct he alleged against Mr Watts and that Mr Watts version of events should have been given greater weight because Mr X lied.
[81] Significantly the incidents on 21 August were the subject of mediation with a successful outcome being reached. There were no further incidents between Mr Watts and Mr X after the mediation. The issue of desks being moved was not a matter involving Mr Watts. If Mr Sauer was concerned about the allegation that Mr Watts had been walking past Mr X’s home, then this is not a matter that was put to Mr Watts in the investigation and it appears to have played no part in the decision to dismiss Mr Watts. In any event, Mr Watts denies that he walked past Mr X’s home for any purpose other than to walk his dog in the afternoon and that he had his son with him when doing so. The fact that Mr X decided to complain about a matter that had apparently been resolved through mediation does not appear to have been considered in the investigation and essentially the investigation proceeded as though the mediation had never occurred and Mr X had made an additional complaint. After investigating that complaint, Mr Campbell concluded that further mediation was required and did not recommend termination of Mr Watts’ employment.
[82] It is also the case that part of the rationale for the dismissal was that Mr Sauer decided that Mr Watts did not want to constructively resolve matters with Mr X because Mr Watts refused to shake hands with Mr X. Such a refusal is not a valid reason for dismissal in circumstances where Mr X had been found to have lied about the incidents and was himself dismissed and where Mr Watts was not told that his refusal to shake Mr X’s hand would be construed as an indication that he did not want to constructively resolve matters with Mr X and would be a reason for Mr Sauer to decide to dismiss him.
[83] On the basis of these matters, I do not accept that the reason for Mr Watts’ dismissal was sound, defensible or well founded. The conclusions that Mr Sauer drew about Mr Watts’ part in the incidents were based on inferences that could not reasonably have been drawn on the material before him and in a number of cases were wrong. Mr Watts’ conduct was not serious enough to warrant dismissal and accordingly I am satisfied and find that there was not a valid reason for Mr Watts’ dismissal.
[84] Mr Watts was notified of the reason for his dismissal by letter and at the meeting on 8 October 2015.
[85] Mr Watts was given an opportunity to respond to the reasons for his dismissal in writing in response to the letter setting out allegations and at the meeting on 8 October 2015.
[86] Mr Watts does not complain of any refusal by OCCPL for him to have a support person present to assist at discussions about his dismissal, and this consideration is not relevant.
[87] Mr Watts’ dismissal did not relate to unsatisfactory performance so no issue of whether he had prior warnings arises.
[88] OCCPL is a large employer with dedicated human resource management specialists and expertise and the procedures it followed in dismissing Mr Watts reflect that fact.
[89] I consider that Mr Watts’ personal circumstances should also be taken into account in considering whether his dismissal was harsh, unjust or unreasonable. Mr Watts is married and has three young children. Mr Watts was living in OCCPL housing at the time of his dismissal and has subsequently relocated to Rockhampton with his family. Mr Watts has had difficulty in obtaining alternate employment, particularly of a similar nature to that he held at OCCPL. Since his dismissal Mr Watts has obtained employment as a sales assistant with a company operated by his brother-in-law and earns $778.60 per week gross. Mr Watts commenced that employment on 18 April 2016. Mr Watts’ monthly salary while employed by OCCPL was $11,726.50 gross and, after tax, he estimates that his earnings post-dismissal are $1,588.00 per week less. Mr Watts attempts to find alternative employment in the mining or earthmoving industries have not been successful.
[90] Mr Watts submits that he has not previously been the subject of performance management or warnings in relation to his performance. Some witnesses for OCCPL have given evidence about various discussions with Mr Watts that are said to have been counselling or in some way performance management. Mr Watts accepts that he had previously had discussions with Mr Morris, Mr Sauer and Mr Winter where matters concerning Mr Watts’ behaviour or style were raised. 80
[91] Having regard to all of these matters and balancing the criteria in s. 387 of the Act I find that Mr Watts’ dismissal was harsh, unjust and unreasonable. It was harsh because of its consequences for Mr Watts and because it was disproportionate to the gravity of the conduct he engaged in on 21 August 2015. The dismissal was unjust because Mr Watts was not guilty of significant matters that OCCPL relied on to conclude that he had engaged in serious misconduct. The dismissal was unreasonable because the conclusions about Mr Watts’ conduct were based on inferences that could not reasonably have been drawn from the material before Mr Sauer who decided to dismiss Mr Watts.
[92] Given that I have found that Mr Watts’ dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr Watts was protected from unfair dismissal and that he has been unfairly dismissed. I am also of the view that Mr Watts should have a remedy for his unfair dismissal. Mr Watts seeks reinstatement.
[93] Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. Mr Watts was honest about his conduct. To the extent that his behaviour towards Mr X was inappropriate, I accept that Mr Watts is remorseful and acknowledges that his behaviour could have been perceived as threatening. I accept that Mr Watts understands the responsibilities of a supervisor in managing workplace conflict. I also accept Mr Watts’ evidence that he will in future conduct himself differently in the event that he has an issue with a work colleague. Further, I note Mr Watts’ stated willingness to participate in any training or development in relation to conflict resolution and its management.
[94] I do not accept that there is a reasonable basis for Mr Sauer to have lost trust and confidence in Mr Watts. Significant conclusions drawn by Mr Sauer about Mr Watts’ conduct were not soundly based. There was no evidence that a restoration of the working relationship between Mr Watts and OCCPL would not be possible. Mr X is no longer employed by OCCPL and there is no risk of further issues between Mr X and Mr Watts. There is no evidence of any other barrier to reinstatement. Accordingly, I consider that it is appropriate to order, pursuant to s. 391(1) of the Act that Mr Watts be reinstated to the position of Surface Co-ordinator (which he held prior to his dismissal), or another position on terms and conditions no less favourable than those on which Mr Watts was employed immediately before the dismissal.
[95] As to orders in respect of continuity and lost pay, OCCPL has submitted that such orders are not appropriate, 81 although no basis has been advanced as to why such orders are not appropriate. I consider it appropriate to make an order pursuant to s. 391(2) of the Act to maintain Mr Watts’ continuity of employment and the period of his continuous service with OCCPL. In relation to remuneration lost as a result of his dismissal, I am satisfied that Mr Watts made reasonable attempts to mitigate his loss. He has found other employment albeit at a significantly lower salary and has attempted to find employment in the mining and earthmoving industries where he has experience. In order to do so, Mr Watts has been required to relocate his family.
[96] On the basis of the evidence before me (which is not precise) immediately before his dismissal, Mr Watts was earning an amount of $11,726.50 per month before tax. I assume that this amount was paid to Mr Watts each calendar month. Had Mr Watts remained in employment with OCCPL he would have earned an amount in the vicinity of $164,171.00 in the 14 month period between his dismissal and the date of the order for reinstatement. The Order for reinstatement will take effect from Monday 9 January 2017. In that period, Mr Watts would have earned a further amount in the vicinity of $11,726.50 bringing his total lost earnings to an amount in the vicinity of $175,897.50.
[97] In the period between the termination of his employment and the order for reinstatement, Mr Watts has earned the amount approximating $26,250.00. In the period between the making of the order for reinstatement and reinstatement, Mr Watts will likely earn a further amount of $2,250.00 taking his total earnings to $28,500.00. Pursuant to s. 391(4) of the Act I have taken that amount into consideration and deduct it from the amount of lost remuneration, resulting in a total of $147,397.50 (or thereabouts depending on the amount from which the earnings are to be deducted).
[98] I consider it appropriate to make an order under s. 391(3) of the Act that OCCPL pay Mr Watts an amount of remuneration lost as a result of his dismissal. OCCPL dismissed Mr Watts without a valid reason and caused him significant financial loss and doubtless disrupted his life considerably by virtue of the fact that he had to relocate his family from Company housing, move to another location and seek other employment. I am also of the view that OCCPL management did not take steps to defuse what was an escalating dispute between two employees.
[99] I also consider it appropriate that Mr Watts should not receive the full amount of his lost remuneration. The Commission has discretion to order the payment of “an amount” for lost remuneration and such an order may be for the full amount or part of it. Notwithstanding my finding that he was unfairly dismissed, Mr Watt was not entirely blameless in the events that led to his dismissal. Mr Watts was a supervisor and it is to be expected that he conduct himself in an appropriate manner in dealing with colleagues. Mr X’s conduct does not entirely excuse the conduct of Mr Watts.
[100] The amount by which I intend to reduce the order for compensation is an amount of 25%. An order will issue with this Decision requiring that OCCPL reinstate Mr Watts with effect from 9 January 2017 and that the continuity of Mr Watts’ employment and continuous service with OCCPL be maintained. I intend to issue a further order requiring that OCCPL pay to Mr Watts an amount of compensation for lost wages and superannuation contributions for the period between 9 October 2015, when his dismissal took effect, and 9 January 2017, when the order for reinstatement will take effect, less an amount of $28,500 earned by Mr Watts from his alternative employment for that period.
[101] The amount I intend to order that OCCPL pay to Mr Watts to compensate him for lost remuneration will be in the vicinity of $110,548.12. However, I am unable to determine the exact amount of compensation because of lack of evidence in relation to the earnings that Mr Watts would have received in that period. I direct OCCPL to calculate the amount of remuneration – including superannuation contributions – Mr Watts would have earned in the period between 9 October 2015 and 9 January 2017. That amount is to be provided to Mr Watts’ legal representative by close of business on Wednesday 21 December 2016. Mr Watts is required to advise as soon as possible – through his legal representative – his agreement or otherwise with the amount so calculated. Mr Watts is also required to confirm whether he continued to receive salary of $750 per week up to the date of this Decision and that he will continue to receive such salary until his reinstatement takes effect on 9 January 2017. When the amount of lost remuneration is finalised, an order requiring that amount to be paid to Mr Watt by 9 January 2017 will be issued.
DEPUTY PRESIDENT
Appearances:
Mr R Reitano for the Applicant instructed by Mr Fisher of South Geldard Lawyers.
Mr B Rauf for the Respondent instructed by Mr Robertson of Ashurst Australia.
Hearing details:
2016.
27 and 28 July.
Rockhampton
1 Exhibit 1; Exhibit 2; Exhibit 3.
2 Exhibit 5.
3 Exhibit 6; Exhibit 7.
4 Exhibit 9; Exhibit 10.
5 Exhibit 11; Exhibit 12.
6 Exhibit 13; Exhibit 14.
7 Exhibit 15; Exhibit 16.
8 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
9 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
10 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
11 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
12 Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.
13 North v Television Corporation Ltd (1976) 11 ALR 599.
15 Ibid at [37].
16 (1999) 94 FCR 561.
17 Ibid at 572.
18 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
19 Exhibit 6, BGS7.
20 PN190.
21 PN191.
22 PN189.
23 Exhibit 2 at paragraph 25.
24 Ibid at paragraph 26.
25 Ibid at paragraph 48.
26 Ibid at paragraph 56.
27 Ibid at paragraph 58.
28 Ibid at paragraph 70.
29 Ibid at paragraph 72.
30 Ibid at paragraph 77.
31 PN754.
32 PN755.
33 PN860.
34 Ibid at paragraph 82.
35 Ibid at paragraph 84.
36 Exhibit 11 DGC-7.
37 PN1906 to PN1915.
38 PN1507.
39 PN1605 to PN1609.
40 PN1691.
41 Ibid at paragraph 94 and 96.
42 PN1559 to PN1560.
43 Exhibit 8.
44 PN1592.
45 PN1594.
46 PN2488 – PN2504.
47 Ibid at paragraph 99.
48 PN946.
49 PN949.
50 PN952.
51 PN1049.
52 Ibid at paragraph 116.
53 PN1707 – PN1715.
54 Ibid at paragraph 130.
55 Ibid at paragraph 135.
56 PN603.
57 PN605 to PN606.
58 PN1817.
59 PN1822 to PN1831.
60 PN1837.
61 Exhibit 6 at paragraph 74.
62 Exhibit 6 Annexure BGS-5.
63 Ibid at paragraph 100.
64 PN1919.
65 PN1924 to PN1926.
66 PN1927.
67 PN1928 to PN1931.
68 PN1457 to PN1458.
69 PN1671.
70 PN1673.
71 PN1855; PN1864.
72 PN1859 to PN1863.
73 PN355.
74 PN222.
75 PN258 to PN264.
76 PN395.
77 PN1028.
78 PN1032.
79 Exhibit 11 Annexure DGC-5.
80 PN573.
81 PN3422.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR588718>