[2017] FWC 4386

The attached document replaces the document previously issued with the above code on 6 December 2017.

Corrected PR number at paragraph [134] and typographical errors in footnotes 7, 11 and 100.

Calum Woods

Associate to Commissioner Spencer

Dated 7 December 2017

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

Mr Vincent Wilson
v
Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American
(U2017/5606)

Application for relief from unfair dismissal – allegations of sexual harassment – alleged breach of Anglo American Equal Employment Opportunity and Anti-Bullying Policy and Guiding Values – prior notification of complainant’s use of improper language – whether clear and cogent proof – issues of credit – employer’s duty of care to trainees in underground mine.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr Vincent “Jimmy” Wilson (the Applicant) alleging that the termination of his employment from Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American (the Respondent) was harsh, unjust and/or unreasonable.

[2] The Applicant commenced employment with the Respondent on 14 September 2010 and was dismissed on 16 May 2017. At the time of his dismissal, the Applicant was employed as a Mine Technician at the Respondent’s Moranbah North Mine in Central Queensland (the Mine).

[3] The Applicant was dismissed as a result of breaching the Respondent’s sexual harassment policy contained within the, “Anglo American Equal Employment Opportunity And Anti-Bullying Policy,” and the, “Anglo American Guiding Values.” It was alleged that the Applicant engaged in, “unwelcomed and uninvited physical contact,” and, “sexually explicit conversations,” towards the first female trainee working at the Mine (referred to as “Person A” in this Decision). 1 In matters of alleged sexual harassment, the Fair Work Commission (the Commission) has an obligation to assess the evidence, in relation to the allegations and the tests to be applied.

[4] The matter was listed for a Conciliation/Directions conference, however it was unable to be resolved. Directions were set for the filing of material and the matter was heard in Brisbane by agreement between the parties.

[5] The Applicant was represented by Mr Adam Walkaden, National Legal Officer of the Construction, Forestry, Mining and Energy Union (CFMEU) and the Respondent was represented by Mr Simon Meehan of Counsel instructed by Ms Tamara Lutvey, Senior Associate of Ashurst Australia. The Respondent was granted permission to be represented pursuant to s.596 of the Act.

[6] The Respondent made an interlocutory application for Orders pursuant to ss.593 and 594 of the Act. In summary terms, submissions were provided seeking Orders for certain exhibits to be treated as confidential and prohibited from publication, and the evidence of Person A to be conducted in private and her name and address prohibited from publication. The Applicant did not oppose the Orders as sought and they were issued in the terms proposed by the Respondent. 2

[7] Whilst not all of the submissions and evidence are referred to in this Decision, all of such have been considered.

BACKGROUND

[8] On 25 January 2017, Person A, (who had resigned her employment with the Respondent on 29 December 2016) attended an exit interview with Ms Lauren McGuire, Human Resources Coordinator of the Respondent.

[9] Whilst these interviews were commonly conducted using an electronic form to obtain feedback, Person A was invited to attend in-person. There had been rumours at the Mine that inappropriate conduct had occurred towards Person A, that may have resulted in her resignation. Mr Craig Manz, General Manager of the Respondent, first became aware of the rumours (from Mr Brendan Storer, Human Resources Manager of the Respondent), two or three weeks after Person A’s resignation. Mr Storer was unable to provide any further information to Mr Manz, however suggested that Ms McGuire conduct an interview to investigate the rumours.

[10] Person A was the first female trainee employed at the underground mine and was 19 years old at the time she commenced her employment with the Respondent. The Applicant was a middle aged man, having worked at the Mine for approximately seven years. The purpose of this interview was to discuss Person A’s reasons for resigning and obtain feedback on the trainee program. During this interview, Person A made four separate allegations of improper conduct against the Applicant.

[11] Ms Kaicee Lahey, Human Resources Superintendent of the Respondent, had been on maternity leave at the time of Person A’s resignation, however returned to work on 13 February 2017. Mr Manz determined that Ms Lahey was the most appropriate person to conduct an investigation into the allegations and for this reason, an investigation with Person A did not commence until that time. She undertook interviews with the Applicant and separate interviews with each of the relevant employees, on 20 March 2017.

[12] Ms Kristi Vassella was employed in the position of Human Resources Coordinator at the Mine, for a period of time whilst Ms Lahey was on leave. Ms Vassella gave evidence that in July or August 2016, Mr Rodney Squire, Outbye Operations Coordinator of the Respondent, had raised a concern that Person A was using inappropriate language and discussing matters of a sexual nature. Ms Vassella held an informal discussion with Person A. Ms Vassella stated that during that discussion, Person A conceded she had used such language in an effort to, “try and fit in with the crew.” 3 There was no evidence that Ms Vassella, as a result of this interview, provided a report on the interview or undertook a follow up plan with Person A.

[13] On 20 March 2017, Ms Lahey conducted an interview with the Applicant and his support person, Mr Richard “Archie” Bunker, Lodge Treasurer of the CFMEU. During the interview, Ms Lahey handed a letter to the Applicant that stated that the Applicant had engaged in, “[u]nwelcomed and uninvited physical contact, including ‘slapping’ the female trainee on the backside… [r]emarks and insinuations about the female trainee’s sex life… [and] [s]exually explicit conversation including sexual innuendos.”   The letter required the Applicant to provide a response to these matters by 24 March 2017. 4 The Applicant subsequently sought, and was granted, an extension to provide his written response.

[14] On 20 March 2017 and 21 March 2017, Ms Lahey conducted a series of employee interviews with Mr David Bowdler, Mr Alan Harris, Mr Rod Williams, Mr Terry Guthrie, Mr Dion Gill, Mr Steven Ellul, Mr Rodney Squire, Mr Jim McCormack and Mr James Grogan. The employees interviewed by Ms Lahey were those (identified in Ms McGuire’s notes of Person A’s interview on 25 January 2017) employees that may have relevant information about the allegations. These employees had worked in the relevant crews at the time.

[15] Ms Lahey stated that, “[g]iven my experience in investigating harassment allegations, I knew it would be important to manage the risk of collusion between potential witnesses as much as possible. For this reason, I determined that it was necessary for the confidentiality and integrity of the investigation process to conduct the investigation interviews consecutively and to ensure that once an employee had been interviewed, they were not able to speak with any of the other employees who were yet to be interviewed.” 5 In terms of the processes utilised by Ms Lahey to reduce such risk, she stated:

“43. In order to conduct the investigation interviews consecutively, I sought Mr Finnen’s assistance to ask for three other management employees to help with gathering the relevant employees together and then supervising them in a room to ensure that none of them could speak to each other about the matter before their investigation interview. To further manage the risk of collusion or any person being given advanced notice of the subject matter of the investigation, I personally collected each interviewee from the room they were waiting in, as all of the workforce employees had elected to be supported during their investigation interview by Richard Bunker, the Secretary of the Moranbah North Lodge of the Construction, Forestry, Mining and Energy Union.” 6

[16] Annexed to Ms Lahey’s affidavit, were copies of handwritten notes from the interviews. 7 The notes contained a series of questions, put to each person and their responses. The questions were:

1. How would you describe your relationship with Jimmy Wilson?

2. How would you describe your relationship with [Person A]?

3. When they were on the same crew, did you ever hear Jimmy ask [Person A] for sexual favours – be it intended as a joke or seriously?

4. Are you aware of Jimmy inappropriately touching [Person A] at work?

5. More specifically, were you aware of Jimmy allegedly hitting [Person A] on the bum while in the man basket performing a job with him?

6. Were you aware of Jimmy, or any of the crew members making sexual or lude [sic] comments to [Person A], such as ‘you can come and live with me as long as you like gardening and sex’?

7. Did [Person A] ever tell you felt uncomfortable or she didn’t like the way Jimmy behaved towards her? 8

[17] Extracts of a range of the answers to the questions are set out: in relation to Question 1, requiring each employee to describe their relationship with the Applicant, the responses were generally neutral or negative. The notes included such responses as, “no relationship outside work,” “coworker, friend, person I have to work with,” “coworker,” “very hard to manage,” “not the brightest button,” “at times annoying,” “very adept to not doing his job,” “I just don’t think he’s a team player,” and, “consistently uses the system for his own benefit.”

[18] In relation to Question 2, the responses were generally neutral or positive. Such responses included, “no different to anyone else,” “friends, worked with her,” and, “polite to each other.” In relation to Question 3, all of the responses recorded were in the negative, that none of the employees had heard the Applicant ask Person A for, “sexual favours.”

[19] In relation to Questions 4 and 5, requiring each employee to recall if they were aware if the Applicant had made improper contact with Person A, various responses were recorded, including, “not sure on what actually happened. Heard a convo in 35ct crib room about Jimmy man handling her on site,” “I heard some rumours after she left,” “she told me,” “no, I heard rumours but had no direct contact,” and, “only what I heard, wasn’t there.” Various comments were also recorded, in relation to Person A’s conduct.

[20] In relation to Question 4, the notes in relation to Ms Lahey’s interview with Mr Grogan stated, “I heard some rumours after she left. Squires came to me, & we approached Paul Stephan. He said he was handling it. We then talked to Kristi & at that time no exit interviews had taken place.”

[21] In relation to Question 5, the notes from Ms Lahey’s interview with Mr Squire stated, “not sure on what actually happened, heard a convo in 35ct crib room about Jimmy man handling her on site. Told Jimmy Grogan, Steph and Kristi Vassella… Kristi said we can’t do much until [Person A] puts a complaint in.” In relation to Question 6, Mr Squire’s interview notes stated, “[w]e actually had to talk to [Person A] a few times about her crude language.”

[22] In relation to Question 6, the notes with respect to Mr Grogan stated, “no, I heard comments the other way around, about her language and loudness. Don’t remember who in particular. It was when she was on animals [Person A’s mentor] crew. Krisi was involved in that I think.”

[23] In addition, the interview notes with respect to Mr Williams, recorded, “I made an approach to Rod S & Jim regarding comments made by [Person A] in the crib room of a sexual nature that made me uncomfortable. I talked w/ them. I didn’t approach [Person A] about it. Threw me to left field. It was in the first few weeks. She was then given to animal on the belts. Had a few words as her supervisor but that was it really.”

[24] On 24 March 2017, Ms Lahey held a telephone meeting with Person A. During the meeting, Person A recalled that the alleged conduct of the Applicant occurred over a period of four days, during a panel of five days and approximately one week before the Applicant went on leave. Ms Lahey subsequently obtained a copy of a document referred to as a, “Pit Services Report,” containing roster information to assist Person A in determining the dates and times of the alleged conduct. Ms Lahey determined that the conduct could only have occurred between 26 August 2016 and 29 August 2016. Later that day, Ms Lahey conducted an in-person interview with Person A, where she provided to Person A copies of the Pit Services Report. This document was not provided to the Applicant during the investigation. 9 In her affidavit, Ms Lahey stated:

“During [the meeting on 24 March 2017], I showed [Person A] the Pit Services Report. [Person A] then confirmed that while she could not recall on exactly which dates the conduct occurred, she confirmed that Mr Wilson’s conduct occurred during the tour of four days between 26 August 2016 and 29 August 2016.” 10

[25] As a result of her meeting with Person A on 24 March 2017, Ms Lahey provided the following further letter to the Applicant on 27 March 2017, that particularised four allegations and stated in part, as follows:

“It is alleged that you have:

1. Engaged in unwelcomed and uninvited physical contact with [Person A] who was a female trainee at the mine. Specifically, it is alleged that:

a. On or about Saturday 27 August 2016, while you were on A Crew, you were working in a man basket in the underground mine with [Person A], who was a female trainee at the mine. It is alleged that while you were in the man basket with her, you deliberately “patted”, “slapped” or otherwise touched her on her backside. It is alleged that this occurred while [Person A] was leaning against the side of the basket close to the door.

b. While you were working in a man basket in the underground mine with [Person A], either on the same occasion as Allegation 1(a) above or on another occasion between approximately 26 to 29 August 2016, you were standing at or around the controls and [Person A] was standing at or around the door. It is alleged that you started approaching her with your arms out, “grabbed” her in a “bear hug” and said to her words to the effect of “I'm stronger than you.” [Person A] then said to you words to the effect of “Get the fuck off me. Never touch me like that again”.

2. Between approximately 26 - 29 August 2016, you made remarks and insinuations about [Person A]’s sex life, including having asked her for “sexual favours”.

3. Between approximately 26 - 29 August 2016, you engaged in sexually explicit conversations with [Person A], including making sexual innuendos. Specifically, it is alleged that while in the crib room, [Person A] was talking to crew members about her relationship with her boyfriend and you said to her words to the effect of “That’s ok, you can come and live with me and you won’t have to pay any rent so long as you like gardening and sex and helping around the house”…” 11 [emphasis added]

[26] Only Allegations 1(a) and 3 were ultimately considered by the Respondent to be able to be substantiated. These were the allegations that were pursued against the Applicant.

[27] On 3 April 2017, the Applicant provided his initial written response to the allegations as follows:

“Dear Kaicee

I refer to your letters of March 20th and 27th, in which you requested a reponse from myself in regards to allegations of inappropiate conduct.

In reponse to the specific allegations, i firstly wish to point out that the events are alleged to have occurred in August 2016, over 7 months ago , and my memory about specific places and times may not be as accurate as they would have been, if these issues were raised with me closer to date , when they are alleged to have occurred. I believe that this should be taken into consideration when you read my reponse.

With that being said, my reponse to these allegations is as follows,

(a)(b), I recall performing work with [Person A] , in a QDS bolting rig ,on or about August of 2016.I did not touch [Person A] at any time , anywhere . I did not make any comment about [Person A] sex life or ask her for any sexual favours. If you have more specific details about where and when these comments were alleged to have been made, i may be able to provide more specific information about these accuations.

I do not recall making any comment resembling the comments in these allegations. I assume that I would have taken a crib break with [Person A] and other employees during these days, however I have no recollection of these breaks nor any comments that were made during these breaks .

Overall , I find the allegations that I have made these comments and performed these acts quite offensive. I am confused about why [Person A] would make such allegations about me. I recall that we had a good working relationship. I have never had any person make such allegations against me before and I have always got along well with my workmates, whether they be male or female.

I hope that this reponse answers your questions, and that this matter is now resolved. I wish to resume work as soon as possible .

Regards

Vincent James Wilson (Jimmy)” 12 [errors in original]

[28] On 4 April 2017, Ms Lahey conducted a telephone conference with the Applicant and his support person and requested that the Applicant provide further particulars in relation to the allegations. Later that day, Ms Lahey sent a further letter to the Applicant. In particular, the letter stated:

“Alleged delay in investigating the allegations about your conduct

You raised the following in your Response:

“In reponse [sic] to the specific allegations, i firstly wish to point out that the events are alleged to have occurred in August 2016, over 7 months ago, and my memory about specific places and times may not be as accurate as they would have been, if these issues were raised with me closer to date , when they are alleged to have occurred. I believe that this should be taken into consideration when you read my reponse [sic].”

I note that this issue was also raised by Mr Bunker during our meeting on 20 March 2017. As discussed with you and Mr Bunker during our meeting on 20 March 2017 and again during our telephone meeting today, I confirm the following matters:

● The company only became aware of the allegations about your conduct following [Person A]’s “exit interview”, which was conducted on 25 January 2017.

● Due to the seriousness of the allegations about your conduct, the company needed to ensure that an experienced investigator was available to conduct the investigation. It was determined that I was the most appropriate person to conduct the investigation. However, I was not available to conduct the investigation until February 2017.

● In light of the sensitive and serious nature of the allegations and in order to preserve the integrity and confidentiality of the investigation process, the investigation could not commence until the majority of relevant workers were available on-site to attend consecutive interviews. This was complicated by the fact that the workers who were on your A-Crew in August 2016 have since been split into two separate crews with different roster patterns.

● As a result of these matters, the earliest available date to commence the investigation was Monday 20 March 2017.

Accordingly, the investigation was commenced at the earliest opportunity once the company became aware of the allegations.

Clarification and confirmation of maters raised in your Response

As discussed during our telephone meeting today, the purpose of the meeting was to clarify and confirm the following matters with you from your Response:

In relation to Allegation 1 (b) as set out in my letter to you dated 27 March 2017:

● Do you have any response to the allegation that you said to [Person A] words to the effect of “I’m stronger than you”?

○ Do you have any response to the allegation that [Person A] said to you words to the effect of “Get the fuck off me. Never touch me like that again”?

○ In relation to Allegation 2 as set out in my letter to you dated 27 March 2017, is it correct that you deny ever having made remarks and/or insinuations that could reasonably be described as being about [Person A]’s sex life or as having asked her for “sexual favours”, whether between approximately 26-29 August 2016 or at any other time?

● In relation to Allegation 3 as set out in my letter to you dated 27 March 2017:

○ Is it correct that you cannot recall ever having engaged in sexually explicit conversations with [Person A], including making sexual innuendos, whether between approximately 26- 29 August 2016 or at any other time?

○ Is it correct that you cannot recall ever having said words to [Person A] to the effect of “That’s ok, you can come and live with me and you won’t have to pay any rent so long as you like gardening and sex and helping around the house”, whether between approximately 26-29 August 2016 or at any other time?

If you would like to provide me with any further information or response for my consideration (in addition to the verbal answers you provided during our telephone meeting today and the responses you provided during our meeting on 20 March 2017 and in your Response), I request that you do so by 4.00 pm on Friday 7 April 2017…” 13

[29] On 7 April 2017, the Applicant provided a second written response as set out:

“In response to your further questions I state:

As per my original statement for allegation 1 (a) and (b), whilst I worked on the QDS bolting rig with [Person A] in August 2016 I did not touch her. If these actions did not occur then why would I make any such remark and why would she make such a response? I did not make any remark as alleged and I therefore did not hear any response as alleged.

In relation to allegation 2 I stand by my original responses. As you are an experienced investigator you would know that the allegations put to me in allegation 2 are, at best, vague and lack any specific detail about the context and time/place they occurred. Without more specific allegations, I cannot know what was said and if that may have been iterpreted by [Person A] as something other than what was intended. Therefore, if you have more information, then please let me know and I shall assist in any way that I can.

In relation to allegation 3 I stand by my original responses.

Kaicee, whilst you may claim that there is a resonable excuse for why it has taken Moranbah North a considerable period of time between when the allegations are said to have occurred and your investigation, these reasons do not change the fact that the allegations are now 7 months old. These allegations, number 2 in particular, are vague and I had no knowledge of them before 20 March 2017. As an experienced investigator you understand that any person’s memory will not be as accurate under these circumstances and allowances must be made for person's not being able to provide specific recollections of conversations that may or may not have occurred during breaks or whilst working for such a long time ago.

I would expect that you will take this into consideration and that you allow me to resume my work as soon as possible.

Regards

Vincent James Wilson (Jimmy)” 14

[30] Ms Lahey subsequently prepared an investigation report on 12 April 2017, and emailed a copy of that report to Mr Manz. The findings of Ms Lahey’s report are set out:

“8 FACTUAL FINDINGS IN RELATION TO ALLEGATIONS

Allegation 1(a)

● On balance, this allegation is substantiated.

● There are no witnesses to the ‘touching’ incident as it was only [Person A] and Jimmy Wilson in the man basket at the time and Craig Marshke and Alan Harris were facing an opposite direction. However on the balance of probabilities, the lead investigator is satisfied that the event occurred given [Person A] reported the incident to three separate crew members in a highly emotional state.

○ There is no reason that [Person A] should not be believed – her account of the event was very specific; she no longer works at the mine; no apparent motivation for making up the allegation; was highly emotional during the exit interview and subsequent interview during this investigation; and had been reluctant to make her complaint in the first place for fear of reprisal.

○ Mr Bowdler and Mr Gill both stated that [Person A] had reported the incident to them and was highly emotional at the time. Mr Guthrie stated that [Person A] hadn’t gone into specific details that Mr Wilson had touched her, but the details that he was given aligns to the statements made by Mr Bowdler and Mr Gill.

○ On balance, Mr Wilson’s account is not believed. Further, his claim that he was not aware of the allegations previously is not credible. All witnesses apart from Mr Williams stated that the allegation had been talked about for months. The Lead Investigator believes that Mr Wilson would have been aware of the information being discussed through the ‘grapevine’.

Allegation 1(b)

● On balance, this allegation is not substantiated.

● While [Person A]’s version of events is more credible than Mr Wilson’s, on balance, the Lead Investigator doesn’t believe there is enough corroborating evidence to support this allegation.

Allegation 2

● On balance, this allegation is not substantiated.

● [Person A] was unable to provide specific examples for this allegation. Due to the lack of specific details available to be investigated, there is not enough corroborating evidence to substantiate this allegation.

Allegation 3

● On balance, this allegation is substantiated.

● [Person A]’s account of this event was very specific. For the same reason as those identified for Allegation 1(a), there is no reason that she should not be believed in relation to this allegation.

● [Person A]’s version of events of what happened in the 55 cut-through crib room, and Mr Marshke's response to her when she asked him if she should be concerned, align with the way that Mr Marshke answered the question about this event during his interview as part of this investigation. While the exact statements made to [Person A] have not been specifically corroborated by other witnesses, based on the balance of probabilities, the Lead Investigator is satisfied that Mr Wilson made the comments to [Person A] and that they were unwelcomed and uninvited.

● On balance, Mr Wilson’s account is not accepted. During the investigation interview, Mr Wilson froze when he was initially asked for his response to this allegation. His demeanour and facial expression in response to this question, together with the fact that Mr Wilson paused to consider his response, gave the Lead Investigator the impression that he was surprised or shocked that the company knew of the specific allegation. It appeared to the Lead Investigator that Mr Wilson had, in that moment, realised that perhaps his denials would not be accepted due to evidence in support of the very specific nature of the allegation. On balance, the Lead Investigator is satisfied that Mr Wilson’s demeanour, facial expression and delay in responding to the question regarding this allegation are inconsistent with his later denial regarding this allegation, such that his denial is not accepted.” 15

[31] It is noted that the Respondent’s investigator, in concluding the conduct against the Applicant, placed particular weight on the Applicant’s initial facial expressions and hesitation, in responding to the serious allegations of sexual harassment and assault, that had been put to him for the first time.

[32] On 26 April 2017, Mr Manz held a meeting with the Applicant and his support person. During the meeting, Mr Manz handed the Applicant the following letter, outlining the Respondent’s findings in relation to the allegations (the show cause letter). The Respondent stated that two of the initial allegations raised by Person A had not been substantiated, as set out:

“I refer to the following meetings and correspondence in relation to this matter:

● The meeting on 20 March 2017, in which you were informed about the allegations about your conduct and you provided your initial verbal responses;

● The letter to you dated 20 March 2017, which outlined the allegations about your conduct for your written response;

● The letter to you dated 27 March 2017, which provided further particulars for your consideration in providing your written response to the allegations about your conduct;

● Your email to Kaicee Lahey dated 3 April 2017, which set out your written response to the allegations about your conduct (Response);

● The telephone meeting on 4 April 2017, which was held for the purpose of clarifying and confirming matters raised in your Response. Archie Bunker attended the telephone meeting in person at the Mine as your support person;

● The letter to you dated 4 April 2017, which sought clarification of matters raised in your Response (Clarification Letter); and

● Your email to Kaicee Lahey dated 7 April 2017, which set out your further responses to the Clarification Letter (Further Response).

…

Based on all of the available evidence, including the verbal responses you provided during the meetings set out above and in your written Response and Further Response emails, the findings of the company’s investigation into the Allegations about your conduct are as follows:

1. On or about Saturday 27 August 2016, you engaged in unwelcomed and uninvited physical contact with [Person A] while you were working in a man basket in the underground mine with her. You and [Person A] were both on D Crew at the relevant time. While you were in the man basket with her, you deliberately “patted”, “slapped” or otherwise touched her on her backside. On balance, Allegation 1(a) is substantiated.

2. Between approximately 26 - 29 August 2016, you engaged in sexually explicit conversations with [Person A], including making sexual innuendos. You and [Person A] were both on D Crew at the relevant time. Specifically, while in the crib room, [Person A] was talking to crew members about her relationship with her boyfriend and you said to her words to the effect of “That’s ok, you can come and live with me and you won’t have to pay any rent so long as you like gardening and sex and helping around the house”. On balance, Allegation 3 is substantiated.

3. On balance, Allegation 1(b) and Allegation 2 were not substantiated.

…

For the following reasons, the company is satisfied that the substantiated allegations about your conduct are in breach of the following:

● Section 8.2 (Sexual Harassment) of the Anglo American Equal Employment Opportunity And Anti-Bullying Policy (EEO Policy):

○ Deliberately patting, slapping or touching [Person A]’s bottom (substantiated Allegation 1(a)) constitutes unwelcome and uninvited physical contact in a sexual way. A reasonable person would feel humiliated, intimidated or offended by this conduct. Accordingly, the company is satisfied that your conduct in this regard amounted to sexual harassment towards [Person A].

○ The comment “That’s ok, you can come and live with me and you won't have to pay any rent so long as you like gardening and sex and helping around the house” (substantiated Allegation 3) was sexual in nature and was unwelcome and uninvited. A reasonable person would feel humiliated, intimidated or offended by this conduct. Accordingly, the company is satisfied that your conduct in this regard also amounted to sexual harassment towards [Person A].

● Anglo American Guiding Value of “Care and Respect” (Anglo Values) - the substantiated allegations about your conduct mean that you have failed to display the ‘Anglo Values’ that are expected of all coal mine workers at Moranbah North mine. The company is satisfied that you failed to act respectfully towards [Person A] and failed to treat her with dignity in relation to the substantiated Allegations 1(a) and 3.

I note that you attended an Equal Opportunity Training Session on 6 June 2016, which was shortly before the substantiated allegations about your conduct occurred…” 16 [emphasis added]

[33] The letter required the Applicant to provide a response by 2 May 2017. The Applicant sought an extension to provide his response and on 5 May 2017, the Applicant sent the following letter to Mr Manz:

“Dear Craig

As request, I am writing you this response to “show cause” why my employment should not be terminated.

Firstly, I am disappointed by the “findings” in your investigation.

Despite the difficulty of being asked to provide responses to allegations that had little to no information and occurred approximately 6 months prior to the investigation commencing I have done my upmost to assist this investigation and I have been honest and forthright with the answers I have provided in order to clear my name.

I wish to point out and highlight that these allegations were raised well over six months after they were alleged of have occurred and once [Person A] had left the mine. The specifics of most of these allegations were vague and lacking any clarity or detail and it was right that some of these allegations were dismissed for this reason.

However, with such a delay between when they were said to have occurred and then when they were reported, I believe that one has to ask the question that if these events did occur, why did she choose not to report them at the time? The only reasonable answer to this question is because the allegations did not happen and, for whatever reason only known to [Person A], she has made them up.

I also raise the fact that once these allegations were raised with management, another 8 weeks went by before they were raised with me, during this time an investigation was apparently being conducted without my knowledge and whilst I continued to work.

On the other hand, I am a long term loyal employee with no record of providing false or misleading information to the company or showing any sign of failing to follow the company’s EEO Policy in my 7 years as an employee of Anglo.

I am unaware of any witness corroborating these allegations against me. If there was, this evidence has not been presented to me and I believe it to be unfair for Anglo to make the findings that it has without raising these statements with me and affording me an opportunity to respond to them.

Given these factors, I believe that the allegations against me should have been treated with a high degree of scepticism and that my responses should have carried more weight.

So for you and Anglo to disbelieve my account of what occurred and instead prefer the word of an ex-employee who has made a series of unclear complaints about issues which occurred over six months before she left the company and not reported at the time, is extremely disheartening.

I am at a loss to see how your investigation can substantiate such claims given the evidence presented, the manner in which it was presented and the time delay in which it was brought up and investigated.

As I have stated, at no stage did I make the comments or commit the actions that have been levelled against me in any of these accusations and I will not retreat from what I know to be the truth.

Further to this, I fail to see how you can reach a conclusion that my “behaviour and attitude is not going to change...” I have never been accused of such behaviour before and at no time have I ever provided false or misleading evidence before.

I understand and agree that I have gone through the company’s EEO policy and I shall vigorously maintain that I have not breached this policy in my interactions with [Person A] or with any other person.

Given my previous behaviour and interactions with all other employees at the Moranbah North mine over the past 7 years as an employee, I cannot see how you can make a statement that my “behaviour” is not going to change on the basis of allegations from a single person who did not report the allegations at the time they occurred, but waited over six months until she had left the mine and is no longer employed by Anglo.

Nonetheless you have made your decision that I have committed some acts against [Person A]. Despite these findings I do not believe that my employment should be terminated over these allegations. I have been employed by Anglo at Moranbah North for nearly 7 years and I spent three and a half years before that working at the mine for Mastermyne. During all this time, no one at Moranbah North has ever had cause to state I have offended them in any way. I believe that I get along well with all my other employees and all I have ever wanted to do is come to work, perform my work to the best of my ability and go home to my family.

I do not believe that allegations from one employee who has left the mine site, should undermine the trust and confidence that I have built over these years and that you can state that I cannot work at Moranbah North in a safe and productive manner with other employees. To do so, in my view, would be harsh.

I do not wish my employment to be terminated as I rely on my income If you were to terminate my employment mortgage on my house that I believe that I would not be able to support this mortgage without work and I am unsure if I would be able to find further employment as I am 56 years old later this year.

Regards

Vincent (Jimmy) Wilson” 17 [emphasis added]

[34] On 16 May 2017, Mr Manz conducted a further meeting with the Applicant and his support person and the Applicant was handed the following letter (the termination letter):

“Dear Jimmy

Termination of Employment – Anglo American Coal

As you know, I met with you on 26 April 2017 to discuss my findings regarding the allegations against you and your ongoing employment. I note that Richie Bunker attended the meeting as your support person.

As you also know, during our meeting the same date, I handed to you a letter dated 26 April 2017 which outlined my findings regarding the allegations against you.

My letter also asked you to show cause as to why your employment should not be terminated and invited you to provide me with your written response to the findings I had made.

At the meeting, you were given an opportunity to read the letter and provide me any information that you wished me to consider.

You provided your written response to my letter on 5 May 2017.

I have reviewed your response to my letter in detail and I have seriously considered the matters which you set out in your response.

I have considered all of the information available to me and, having done so, I am satisfied on the balance of probabilities that the allegations against you in relation to your conduct remain substantiated.

I have determined that your conduct is in clear breach of your contract of employment and Anglo’s Code of Conduct, Moranbah North Mine’s Safety, Health, Environmental and Community Management system and your obligations generally.

Your conduct is unacceptable in the workplace.

Please note that I have given serious consideration to the personal factors that you have set out in your written response.

In the circumstances, having considered all of the Information available to me and having made the findings that I have made, I have made the decision to terminate your employment with effect from today.

Unfortunately, while I empathise with the impact that the termination of your employment may have on your personal circumstances, Anglo American Coal cannot tolerate the serious nature of your conduct. Therefore, those matters are not sufficient to change my ultimate decision about your employment.

Anglo American Coal will pay you in lieu of notice of termination of your employment. You will be paid all outstanding wages and all accrued and untaken leave entitlements.

The Company’s Employee Assistance Programme, a confidential counselling service, is available to you and your family until the end of June 2017 on [redacted].

We regret that your service at both Anglo American Coal and Moranbah North Mine has ended in this manner, and we wish you well in your future endeavours.

Yours sincerely

Craig Manz

General Manager” 18 [emphasis added]

RELEVANT PROVISIONS

[35] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[36] Further, s.387 of the Act relevantly provides:

“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.”

[37] The Respondent argued, the Applicant’s conduct was a breach of the Respondent’s Code of Conduct, that states:

“Employees are expected to treat all other employees and persons with whom they deal on behalf of the company with respect and dignity, and not subject any person to harassment or discrimination. When communicating with others, employees are to have regard for the dignity of the individual and to reflect this in their manner. Specifically employees will not use an aggressive, threatening or insulting manner…

Specific behavioural expectations of employees are also contained in the EEO – & Anti-Bullying Policy and Absence Management Policy.” 19

[38] Further, the Respondent argued the Applicant’s conduct in the man basket and his comments, breached the Respondent’s Equal Employment Opportunity and Anti-Bullying Policy which defines, “sexual harassment,” as meaning:

“Sexual harassment is unwelcome and uninvited behaviour which is sexual in nature and reasonably makes a person feel humiliated, intimidated or offended. It may be a single incident or a series of incidents.

Sexual harassment is unlawful under both State and Federal legislation.

A person may be subjected to harassment without having been the direct or intended recipient and examples include:

● Physical contact such as patting, pinching or touching in a sexual way

● Deliberately brushing against another person

● Staring or leering at a person’s body

● Sexual propositions

● Remarks or insinuations about a person’s sex life

● Suggestive comments about a person’s appearance or body

● Indecent exposure

● Sexual jokes, innuendos, comments and sexually explicit conversations

● The transfer or display or material with sexual content by any method including telephone, letter, computer, poster or magazine.” 20 [emphasis added]

[39] The Applicant had received training in this policy in June 2016. The accompanying PowerPoint presentation on the Respondent’s policies, stated:

“Harassment is unwanted and unwelcome behaviour which causes another person to feel distressed, intimidated, insulted or humiliated

Intention is not relevant – it is irrelevant at law as to whether or not the inappropriate behaviour was intended to offend, humiliate or intimidate.

Anglo American does not tolerate any form of harassment and employees or contractors must never engage in actions or behaviour that can be perceived as harassing.” 21

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[40] The Applicant submitted that in considering whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the matters in s.387 of the Act. 22 It was submitted that the Commission must not give, “paramountcy,”23 to any one matter and that, “the proper approach is to weigh up all of the matters specified by s.387…”24

[41] It was submitted that the Commission must resolve any factual disputes on the evidence and,  25 in the case of allegations of serious misconduct, the onus of proof is on the Respondent to satisfy the Commission on the balance of probabilities that the conduct occurred.26 Accordingly, the Applicant submitted that the Commission must resolve whether the allegations of misconduct occurred in fact.

[42] The Applicant submitted that in dealing with the allegations, the Commission must apply the test in Briginshaw v Briginshaw (Briginshaw), 27 that is, whether on the balance of probabilities the conduct occurred. In applying the relevant test, the Applicant further referred to the decision in Osborne v Anglo Coal (Callide Management) Pty Ltd where it was held that:

“[16] The strength of the evidence necessary to establish a fact upon which serious misconduct is grounded may vary according to the nature of what it is sought to prove, although the standard of proof does not. A finding that a party in civil proceedings has engaged in fraudulent or criminal conduct should not be lightly made, and there is a need for clear and cogent proof. In the present case, Anglo Coal alleges that Mr Osborne was dishonest, and in my view, given the safety regime in the coal mining industry; Mr Osborne’s experience as an operator; combined with the seriousness of the incident, and the consequences to Mr Osborne’s career, this allegation is sufficiently serious so that clear and cogent proof is required to substantiate it.” 28

[43] The Applicant submitted that having regard to the test in Briginshaw, Person A was unable to provide, “clear and cogent proof to substantiate the allegations.” 29 Accordingly, it was submitted that the Commission should find that there was no valid reason for dismissal.

[44] The Applicant provided two affidavits in these proceedings. In his affidavit sworn 4 August 2017, the Applicant stated that Person A was having difficulty with working underground and struggling to discharge the duties of the role. In regard to the performance of her duties, the Applicant stated he had a, “fairly robust and direct discussion,” with Person A, where he stated:

“21. I also didn’t consider there to be any problems between [Person A] and I. There were numerous shifts that [Person A] and I worked together side by side performing the same task without any incident. However, on 2 occasions, in a conversation with [Person A], I was fairly robust and direct. I have set out these 2 conversations below.

22. The first conversation occurred on about Friday 26 August 2016. On that shift, [Person A] and I (and the rest of the D Crew) were working day shift. I was working with [Person A] and we were bolting in the B Heading at 42 cut through to 44 cut through, and also bolting at the underpass near 30 cut through. I was operating the drilling rig and [Person A] was off-siding me. The task involved me drilling numerous bolts into the roof of the Mine. [Person A] was responsible for placing the chemical and then the bolt into each hole. It was my job to then drill each bolt into each hole. At one point during the shift, and in reference to some hoses that were nearby, words to the following effect were said:

Me: Can you pick up those hoses and coil then up and put them in the machine?

[Person A]: They are too heavy for me.

In my experience working underground, such a request from the operator of the drilling machine to the off-sider is fairly typical. Given [Person A] was either unable or unwilling to pick up the hoses, I picked up the hoses for the duration of that shift.

23. The second conversation occurred on a date that I cannot remember. On this occasion, [Person A] and I were bolting near the underpass at 44 cut through. I was operating the drilling rig and [Person A] was off-siding me. During the course of this shift, [Person A] was having difficulty lifting the bolts and placing them into the hole. [Person A]’s inability to perform such a basic off-siding task meant that I was effectively doing both the drilling and off-siding work. I was frustrated and annoyed that I was doing her job and my job. At one point, words to the following effect were said:

Me: I might as well be working on my own.

[Person A]: I have a migraine and my period. I am also finding it difficult to concentrate because I am having problems with my boyfriend.

At that point, [Person A] started to cry. I then said words to the following effect:

Me: It’s not my fault. If you aren't feeling well, you shouldn’t have come to work.

24. I didn’t think much of these 2 conversations at the time. In my experience, those sorts of conversations are fairly commonplace in an underground Coal Mine. I have had similar direct and robust conversations with other miners over my years in the industry. However, I accept that some people, particularly someone with limited underground experience such as [Person A], may have found my conduct to be insensitive or unfair or too robust and taken offence at my comments.” 30 [emphasis added]

[45] Person A denied these conversations occurred. 31 However, Person A, in the recorded notes of her exit interview, noted the demanding physical nature of the underground work.

[46] The Applicant was granted an Order pursuant to s.590(2)(a) of the Act, compelling the attendance of Ms Kristi Vassella, former Human Resources Coordinator of the Respondent, to give evidence at the hearing. Ms Vassella had resigned her employment in December 2016, prior to Person A’s resignation. Ms Vassella gave evidence that in around July 2016, she had a conversation with Person A, regarding her language in the workplace.

[47] Ms Vassella stated that a concern had been raised with her by Mr Squire, regarding Person A’s excessive use of swearing and discussing personal sexual matters in front of other employees and in the crib room. 32 Ms Vassella stated that during this conversation, Person A stated that she had used the language as she had a, “want or need to try and fit in with the crew.”33 Ms Vassella stated that she was not aware of any inappropriate behaviour by the Applicant toward Person A.34

[48] An affidavit was also provided by Mr Rodney Williams, Leading Hand of the Respondent. Mr Williams gave evidence that Person A had made sexual comments in the workplace that had made other employees feel uncomfortable. Mr Williams gave evidence that he observed Person A using inappropriate and sexual language while in the crib room with about 10 co-workers. The evidence was that, whilst there were some female employees at the Mine, it was a predominately male workforce. There was also evidence that other women had worked successfully underground.

[49] Mr Williams stated that in the crib room, “out of the blue,” Person A said words to the effect of, “[i]t’s steak and headjob night next Tuesday at my place.” 35 Mr Williams stated that there was then, “a bit of banter about [Person A]’s comment,” and Person A then said, “[h]ow come it’s ok for my boyfriend to play with my arse, but when I play with his, he gets upset?” Mr Williams stated that Person A then went on to talk about sex toys. Mr Williams said Person A’s comments had made him feel uncomfortable and he left the room along with six or seven workers.

[50] Mr Williams also stated that on two occasions, he observed Person A asleep underground. 36 Mr Williams stated:

“18. The first occasion occurred on a date that I cannot remember. I saw [Person A] asleep in a driftrunner, which is a vehicle used underground to transport people and equipment. At the time, [Person A] was a yellow hat or an inexperienced miner. An inexperienced miner is prohibited from working alone and must remain in the line of sight of their nominated mentor. [Person A] was not in the line of sight of Animal [Mr David Bowdler], who was her mentor at the time. On seeing that [Person A] was asleep, I approached her and woke her up. Words to the following effect were then said:

Me: What the f… are you doing out here by yourself asleep? You are not supposed to be by yourself. Where is Animal?

[Person A]: I was tired. He told me to come out here and rest.

19. I then went into the heading and found Animal. Words to the following effect were then said:

Me: What the f… is she doing out there asleep and by herself?

Animal: She felt unwell and was tired.

Me: Not good enough. Tell her to go and sit on the steps behind you, if she is tired and cannot work. She should not be somewhere that you can’t see her.

Animal: I am her mentor, I will tell her what to do.

20. The second occasion was after the first occasion and on a date that I cannot remember. By this time, [Person A] was a white hat or an experienced miner. I saw that [Person A] was asleep. On seeing that [Person A] was asleep, I approached her and woke her up. I then said words to the following effect:

Me: For f…’s sake, you cannot be asleep. If you are tired and unable to work, you need to go home.

21. At the end of that shift, I approached Rod Squires and informed him that I had discovered [Person A] sleeping during work time underground.” 37

[51] “Animal”, Mr Bowdler, Person A’s mentor, was cross-examined in relation to this evidence, that Person A had been asleep during her shift:

Mr Walkaden: What did Mr Williams give Person A a couple of serves about?

Mr Bowdler: Well, he so called she was sleeping, but she was ill that day.

Mr Walkaden: Was this an occasion when you were her mentor?

Mr Bowdler: That’s correct.

Mr Walkaden: On one of these occasions was Person A a yellow hat miner?

Mr Bowdler: She was.

Mr Walkaden: And that means inexperienced miner, doesn’t it?

Mr Bowdler: That’s correct.

Mr Walkaden: Is it a rule at the mine that an inexperienced miner must stay within the line of sight of their mentor?

Mr Bowdler: That is correct.

Mr Walkaden: On one of these occasions, was Person A within your line of sight?

Mr Bowdler: No, she wasn’t.

…

Mr Walkaden: But it’s the case, isn’t it, that Mr Williams approached you?

Mr Bowdler: That’s correct.

Mr Walkaden: And you had a robust discussion?

Mr Bowdler: We did.

…

Mr Walkaden: You're an experienced coal miner, aren’t you, Mr Bowdler?

Mr Bowdler: Yes.

Mr Walkaden: You would agree that sleeping underground whilst your supposed to be at work is quite unsafe?

Mr Bowdler: It can be if you're not in a ventilated area.

Mr Walkaden: It's the case, isn’t it, that for a period of time - and you don’t need to worry exactly about the specifics - but for a period of time you worked quite close with Person A on the belts?

Mr Bowdler: That’s correct.

Mr Walkaden: As we’ve established, for that period of time you were her mentor?

Mr Bowdler: That is correct. 38

[52] The Applicant’s representative referred to a range of matters, arising from the cross-examination of Person A, as set out later in this Decision. It was submitted on behalf of the Applicant that there was, “serious conflict,” between the evidence of the Applicant and that of Person A, in regard to the factual basis of the allegations. 39 Mr Walkaden on behalf of the Applicant, submitted that the Applicant had, “emerged unscathed from cross-examination,” in contrast to Person A.40 The Applicant submitted that there were serious issues of credibility with the evidence of Person A. In particular, he submitted that:

“On multiple occasions, an answer provided by [Person A] during cross-examination was inconsistent with and contradicted her earlier statements and/or Affidavit evidence…” 41

[53] The Applicant’s representative also referred to the cross-examination of Ms Lahey, where she gave evidence of a conversation she had with Mr Craig “Crackers” Marschke. Mr Marschke was not called to give evidence at the hearing. Ms Lahey gave evidence that, in relation to the, “gardening and sex,” allegation that Mr Marschke stated that he did not hear the comment (between the Applicant and Person A), however he stated that the conversation he did overhear sounded, “a bit ordinary,” and that, “[Person A] had a bit of a gutter mouth.” 42

[54] In relation to the incident in the man basket, Ms Lahey stated that Mr Marschke said that he did not see the Applicant, “hit Person A on the bum.” 43 It is relevant to note that, whilst the Commission is not restrained from relying on hearsay evidence, significant caution must be exercised, in the absence of other cogent and corroborative evidence.

[55] The Applicant emphatically denied the allegations and sought reinstatement, compensation for lost wages and continuity of service.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[56] The Respondent accepted that it bears the onus to establish that the conduct occurred and that the principles in Briginshaw were applicable. 44 The Respondent referred to the case of Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,45 where it was held that:

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…” 46 [footnotes omitted]

[57] Further, the Respondent relied on the decision of the High Court in Rejfek v McElroy:

“The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.” 47

[58] The Respondent submitted that, “[t]he Commission is required to decide whether it was more probable than not that the Applicant engaged in the conduct as alleged by Anglo… the existence of a reasonable doubt about the matters that Anglo is seeking to prove is not of determinative significance.” 48

[59] The Respondent submitted that the Applicant was notified of the reasons for the dismissal and was provided an opportunity to respond. Further, the Respondent submitted that the Applicant was represented at all material times by the CFMEU and that other matters arising under s.387 of the Act were not significantly relevant. 49

[60] Person A, Ms Lahey and Mr Manz gave evidence in these proceedings In her affidavit, Person A detailed the four allegations that she had made against the Applicant, as set out:

“14. I had been working in the man basket with Mr Wilson in “B” Heading. A man basket is effectively a large cage with a platform that is attached to a loader so that it can be elevated in order to work at heights.

15. Al Harris, the Underground Deputy at the Mine, had come over to us to check on what our work group was doing. Craig Marschke, who is also known as “Crackers”, had been operating the loader for us. When Mr Harris came over, he started talking to Mr Marschke first. Mr Marschke then lowered the man basket that Mr Wilson and I were standing in.

16. The doorways to the man basket are quite small and narrow. One of the doorways of our man basket was blocked, as it was up against the rim. The other door was the only way to exit the man basket. The doorway is only approximately a person-width wide. I have seen large workers have to exit the man basket by going through the exit sideways.

17. After Mr Marschke lowered the man basket, I was standing at the only open door way to the man basket, facing outwards. I was standing centred against the pole at the door way hinge, so that about half of my body was blocking the exit to the man basket. While I was standing there, Mr Wilson was behind me in the man basket. Both of us were talking to Mr Harris.

18. At some point, Mr Harris turned to look away from us and looked down the heading to the next cut through where people were turning. None of us were engaged in conversation with him as he looked towards the next Heading. It was at that moment that Mr Wilson pushed past me in order to exit the man basket. As he did so, he turned towards me so that his front was facing towards my side. As he pushed past me, he placed his hand with force on the left cheek of my bottom, towards the side of my bottom, with his right hand. To the best of my recollection, when he placed his hand on my bottom, he patted or squeezed my bottom.

19. I was shocked but did not say anything to Mr Wilson or Mr Harris at the time. Shortly after Mr Wilson got out of the man basket, Mr Harris turned around and continued talking to us. Mr Wilson just acted like nothing happened. He did not look back at me at any stage.

20. As Mr Harris was facing away from us, I do not think he saw Mr Wilson grab my bottom. I am not sure which direction Mr Marschke was looking when Mr Wilson grabbed my bottom.

21. After Mr Harris left, we all returned to work. While I felt uncomfortable and intimidated by what had just happened, I decided to just try to ignore it and keep working. I felt that it was easier for me not to say anything about it and to just try to move on in the hope that it would not happen again.

22. I had again been working with Mr Wilson in a man basket in “B” Heading. The basket was raised up approximately two metres off the ground.

23. I remember that Mr Wilson had been drilling and I was “offsiding”, which involves filling the hole after it has been drilled. He was operating the drill standing behind the rig. While I was waiting for each hole to be drilled, I stood back towards the railing of the man basket so that I was out of the way. Once Mr Wilson had drilled the hole, I would move in to fill the hole. I would then step back out of the way so that Mr Wilson could tension the bolt and drill the next hole.

24. While we were working, Mr Wilson was trying to have a joke with me. To the best of my recollection, I think the joke was something about Mr Wilson being shorter than me or something about him being a midget. I went along with the joke, because I was trying to move past things and ease things with him a bit. I remember that the jokes Mr Wilson was making were sexual in nature and I thought at the time that they were a bit borderline. I laughed even though I thought it wasn’t funny.

25. After I had finished filling one of the holes, I stepped away to wait out of the way so that Mr Wilson could finish tensioning. In doing so, I stepped back towards the railing of the man basket and stood close to the closed doorway to the man basket. I think I was leaning with my back up against the railing in the corner. I was standing in the back left corner of the man basket and Mr Wilson was to my right.

26. While I was waiting there, Mr Wilson suddenly looked over at me and then he started moving towards me. Without thinking, my reaction was to put my arms up, crossed, over my chest. Mr Wilson then wrapped both of his arms around me in a tight "bear hug", squeezed me close to him and said to me words to the effect of “See, I’m stronger than you”. When he said these words to me, he was smirking, as if it was a joke. Mr Wilson's face was up very close to my face. I think Mr Wilson had grabbed a hold of his own hands or arms while he had me in the “bear hug”, as I only remember feeling his arms around me, not his hands on me. While he had me in the “bear hug”, my arms were still crossed across my chest, so my arms were stuck between us.

27. I was shocked, but I managed to yell assertively to Mr Wilson words to the effect of “Get the fuck off me and don’t touch me”. Mr Wilson then let go of me and stepped back. I cannot remember exactly what happened next. I felt very uncomfortable, nervous and was quite freaked out by what had just happened. I just tried to block it out for the rest of that shift and kept working.

28. While I cannot remember the specifics of many examples, from time-to-time, Mr Wilson initiated conversations of a sexual nature with me or made sexual innuendos.

29. For example, during a crib break, Mr Wilson asked me if I had any tattoos. I told him that I had two, one on my wrist and another on my thigh. He asked me whether I could show him my tattoos. I replied to the effect that I couldn't as I was in full length hi-vis pants. Mr Wilson then said to me, “So…”, followed by a pause, by which I understood he was implying that I should pull my pants down.

30. This comment by Mr Wilson made me feel uncomfortable. I ignored his comment and just tried to move past it.

31. I remember that I was in the 55 Cut Through crib room for my crib break. Mr Wilson was there. At that time, my partner… and I had been fighting quite a bit and I remember making a comment to Mr Wilson about [my partner]. Then Mr Wilson said to me words to the effect of “Oh well, come and live with me and all you'll have to do is the gardening and you can have sex with me”. From his comment, I understood that he was implying sexual favours. Mr Wilson’s comment made me feel uncomfortable. I just laughed uncomfortably and tried to ignore the situation.” 50

[61] The detail provided in Person A’s affidavit was in clear contrast to her evidence at the hearing. At the hearing, Person A agreed that her affidavit was prepared with the assistance of a lawyer. 51

[62] Affidavits were also provided by other employees of the Respondent, who had interacted with Person A after she stated, the man basket incident. Mr David “Animal” Bowdler, Mine Technician and Person A’s mentor, gave evidence that Person A had told him that the Applicant had, “groped,” her in the man basket. 52 Both Mr Terry Guthrie, Mine Technician of the Respondent, and Mr Dion Gill, Mine Technician of the Respondent, each provided evidence that Person A had told them the Applicant had touched her inappropriately in the man basket.53 Mr Gill stated that he told Person A to report the matter and that Person A, “begged,” him not to do anything, and that she would report such.54 Mr Guthrie also stated that he had told Person A to report the incident and that she had indicated she did not wish to.55

[63] The Respondent submitted, “[i]n the underground environment, it was not uncommon for workers to talk about their sex lives.” 56 It was submitted that during the incident in the man basket, such conversations were not occurring.

[64] In response to the Applicant’s submissions, regarding issues of witness credibility with Person A, the Respondent submitted:

“30. In relation to credit the Commission is entitled to evaluate whether there existed any plausible basis upon which it can be said that the witnesses were motivated not to tell the truth. In the case of Mr Wilson, who has steadfastly refuted the allegations, he plainly knew that disciplinary action would be taken against him by Anglo if he had engaged in sexual harassment. He knew that Anglo had a policy that made a serious disciplinary outcome inevitable. There was a strong motivation to lie to the Investigator (Ms Lahey), so as to avoid what he knew to be the real prospect of losing his job. The need to perpetuate his account in the Commission to vindicate his claim is a further motivating factor.

31. Mr Wilson’s case is that [Person A]’s account of his conduct is a complete fabrication. Yet Mr Wilson could not offer to Anglo or the Commission any reason that [Person A] might be motivated not to tell the truth. The Commission should come to the conclusion that there is no reason that [Person A] might be motivated not to tell the truth, which is underpinned by the following objective facts, namely that [Person A]:

a. informed her co-workers (Mr Bowdler, Mr Guthrie and Mr Gill) that she did not want to report the incidents to management;

b. did not report the incidents to management, including to Mr Harris [Person A’s mentor at the time];

c. resigned from Anglo and took up alternative employment with a materially reduced income;

d. only revealed the matters to Anglo management when contacted and after careful deliberation;

e. has never made any claim against Anglo for redress in relation to the conduct;

f. has been willing to attend and give evidence in this Commission, at significant personal inconvenience, stress and anxiety, and involving absence from her current employment.

32. In respect to [Person A]’s reliability it is accepted that during cross examination there were shortcomings in her capacity to recall details about some matters about which she was asked. That of course does not justify generalised criticism of her reliability as a witness. Indeed, by reference to the uncontroversial matters…, it is plain that she has given reliable evidence in respect of many material issues in the proceedings. The Commission should not be unduly distracted by shortcomings in her recall relating to matters that are extraneous to the controversial issues.” 57

[65] It was submitted that the Applicant’s endeavours to discredit Person A were, “highly artificial, disingenuous and should be rejected by the Commission.” 58 In relation to the, “gardening and sex,” incident, the Respondent submitted that the Applicant was unable to recall who was present for the conversation and therefore, it was mere speculation that Mr Marschke was in close enough proximity, to overhear the conversation with Person A.59

CONSIDERATION

[66] In considering whether a dismissal is harsh, unjust or unreasonable, the Commission must have regard to the matters in s.387 of the Act:

387 Criteria for considering harshness etc.

(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

[67] In considering whether there was a valid reason for dismissal within the meaning of s.387(a), the reason must be, “sound, defensible or well founded,” and must not be considered, to be, “capricious, fanciful, spiteful or prejudiced.” 60 This determination requires an, “objective analysis of the relevant facts.”61

[68] The allegations of the Applicant’s improper conduct were alleged to have occurred between Friday, 26 August 2016 and Monday, 29 August 2016. However, the Applicant was not made aware of the allegations until some seven months later. Four allegations were initially made by Person A and only two of these were subsequently pursued against the Applicant, as the Respondent considered only two to be substantiated.

[69] The first allegation related to the Applicant allegedly engaging in unwelcome and uninvited physical contact with Person A. Specifically, this was nominated by the Respondent as, “Allegation 1(a),” and was set out as follows:

“On or about Saturday 27 August 2016, while you were on A Crew, you were working in a man basket in the underground mine with [Person A], who was a female trainee at the mine. It is alleged that while you were in the man basket with her, you deliberately “patted”, “slapped” or otherwise touched her on her backside. It is alleged that this occurred while [Person A] was leaning against the side of the basket close to the door.”

[70] The other allegation said to be substantiated was, “Allegation 3,” which was put in the following terms:

“Between approximately 26 – 29 August 2016, you engaged in sexually explicit conversations with [Person A] including making sexual innuendos. Specifically, it is alleged that while in the crib room, [Person A] was talking to crew members about her relationship with her boyfriend and you said to her words to the effect of “That’s ok, you can come and live with me and you won’t have to pay any rent so long as you like gardening and sex and helping around the house”.”

[71] The Applicant at all material times denied the allegations and submitted that the allegations were false and therefore, pursuant to s.387(a) of the Act, provided no valid reason for the dismissal and that the dismissal was unfair.

[72] In terms of assessing the allegations it was submitted on behalf of the Applicant:

“If established, the Allegation 1(a) may amount to a contravention of s.352 of the Criminal Code 1899 (Qld), which has a maximum penalty of 10 years imprisonment. If established, both Allegations may amount to a contravention of s.39(a)(a) [sic] & (f) of the Coal Mining Safety and Health Act 1999 (Qld), which has a maximum penalty of 500 penalty units or 6 months imprisonment.” 62

[73] Accordingly, the Applicant submitted that given the seriousness of the allegations, clear and cogent proof of the conduct was necessary.

[74] It was submitted by both parties that the matter turns on the application of s.387(a) of the Act, that is, whether the conduct provided a valid reason for dismissal. 63 It was submitted on behalf of the Applicant:

“Our argument is almost exclusively focussed upon [s.387(a)], mainly whether there is a valid reason for the [A]pplicant’s dismissal. Given the [A]pplicant’s consistent and strong denial of the allegations, we say the key question before the Commission is to determine whether the evidence of Person A provides clear and cogent proof to enable the Commission to be reasonably satisfied that the allegations are indeed true.

We say if this question, his key question, is answered in the negative, namely that Person A’s evidence does not provide clear and cogent proof of wrongdoing by the [A]pplicant, that that will result in three findings. The first being that there was no valid reason for the [A]pplicant’s dismissal. The second being that the dismissal was unfair. And the third, that the relief sought by the [A]pplicant should be granted. So that’s the first principal position.

The flipside of that coin, Commissioner, is that we accept that if that key question, namely the valid reason question is answered against us, namely that the Commission is satisfied that Person A’s evidence provides clear and cogent proof of wrongdoing, we accept that two things would eventuate. One is there’d be a finding that there was a valid reason for dismissal and, two, we accept in those circumstances, and in the circumstances of this case, that the application would be dismissed. So we make that concession upfront.” 64

[75] Mr Walkaden submitted that the key question for determination is whether the allegations were substantiated. In this regard, it was submitted that the evidence of the Applicant and Person A were in direct contradiction. Mr Walkaden submitted that whilst the Respondent relied on two reasons for the dismissal, Person A had initially raised four allegations against the Applicant. It was submitted that, “the Commission will either accept that all of the four allegations are untrue or all of the four allegations are true. There is no middle ground given you’ve got the two key protagonists, the evidence in relation to the allegations are diametrically apart.” 65

[76] The conduct referred to in the allegations, were matters that only the Applicant and Person A were witnesses to. The hearsay evidence of Mr Marschke is discounted. The Respondent only based the dismissal on the two allegations of misconduct and the termination has been considered in relation to those two incidents.

[77] The Applicant’s response to the allegations had been consistent denial. Mr Walkaden submitted that there were no credibility issues arising from the Applicant’s evidence. In comparison to the evidence of Person A, who he argued, was frequently unable to answer or recall specific details. The Applicant stated that there were multiple occasions where Person A responded with “I can’t recall.” Given the nature of her evidence in this regard, I enquired with Person A as to whether she was content in providing her evidence. She affirmed she was. 66

[78] The Respondent submitted that these matters raised by the Applicant in relation to the credit of Person A’s evidence, were, “extraneous to the controversial issues,” and the Commission should not be unduly distracted by them. In response, Mr Walkaden submitted that this submission cannot be accepted and that there were a range of issues relevant to the allegations of which Person A, had no recollection. For example, it was argued that it was put to Person A, that she could not recall how many specific allegations she had made against the Applicant, to which she agreed. 67 Mr Walkaden submitted that, in relation to the evidence on the actual number of allegations made by Person A against the Applicant:

“…not only is she inconsistent with that affidavit, but the fact that she is unsure on such a fundamental matter, not a matter that they have suggested… that’s extraneous to the controversial issues. How can that be extraneous if you can’t remember how many allegations you have actually made against a person? We say if she is unsure of exactly how many specific allegations she has made against the applicant, you cannot be satisfied, Commissioner, that her evidence provides clear and cogent proof of wrongdoing.” 68

[79] In terms of the credit of Person A as a witness, the Applicant submitted that these matters go beyond merely being unable to recall specific dates or names. 69 In relation to one example, Mr Walkaden submitted, “[h]ow can that person provide clear and cogent proof of wrongdoing if when asked a very simple question of, “Were you being truthful in completing the document?” – [Person A]’s response is, “I'm not sure.”70

[80] Counsel for the Respondent submitted that even if there was some degree of doubt to whether the alleged incidents occurred, the Commission may still make a finding that the Applicant’s alleged conduct occurred. In relation to the allegations of invention by Person A, the Respondent submitted that:

“Now when one comes to evaluate whether someone is lying and to form a view as to whether they knew the account they were giving was false, the Commission as in any court would naturally take into account any evidence to suggest or that is probative of a reason or motive for the person who is alleged to have lied to have lied. It would be a centrally relevant consideration. My client doesn’t erect any premises based on Person A acting rationally or otherwise. We say she has given evidence that is exact, clear and cogent and what is put against us and has been from the get-go I that it is all a complete lie.

Now the Commission must ask itself in evaluating that assertion by Mr Wilson why would she have lied? Was there a motivation? What possible reason could there be? What my friend seeks to do seemingly - this may not be squarely turning on its head but the proposition seems to be this; Mr Wilson now says Person A acts irrationally in respect of certain things and they seek to demonstrate that. Because she acts irrationally in respect of certain things, she probably lies, notwithstanding she may have no motivation to do so. It’s a completely untenable proposition and it is advanced to distract the Commission from the task that I commend to it at the heartland of resolving the controversy in the case.” 71

[81] In response to the Respondent’s submission that Person A had no motive to invent the allegations, Mr Walkaden submitted that, the matters referred to are, “inexact proofs,” and the conduct of Person A was demonstrated to be irrational. 72 It was submitted that:

“Returning to the point what I call the invitation and returning to the Briginshaw point, what we say is simple conjecture regarding Person A’s motive or whether she had a motive for making up the allegations which, in any event, we say is wrong, we say that cannot ground a finding that the Commission is reasonably satisfied that the allegations are true. We say that such speculation and conjecture is exactly the sort of matters cautioned against in Briginshaw... Such conjecture about those matters, why would she lie, why would she make it up, why would she resign, we say those are inexact proofs, indefinite testimony or indirect inferences, and for those reasons not only does that submission proceed on the unsafe basis of rationality which I have dealt with, as I say, it cannot be the basis on which to ground a finding. Mere guesswork as to Person A’s motives, put another way, does not amount to the respondent discharging its onus of providing clear and cogent proof that the allegations are true.” 73

[82] The Respondent conceded that issues with Person A providing her evidence did occur, however it was submitted that the allegations as made must be assessed against the, “uncontroversial and incontrovertible facts.” 74 It was submitted that it was uncontroversial that the Applicant and Person A were working in the man basket when the alleged incident occurred and took crib breaks together.

[83] Further, it was submitted by the Respondent, that the matters raised by the Applicant’s representative in an endeavour to discredit Person A, such as the content of Person A’s Facebook page “likes”, her medical history (with reference to Person A’s claims of increased absences, as a result of the allegations) and other matters, were not centrally relevant to the allegations and, as stated, only went to witness credibility. 75 Counsel for the Respondent likened these, “extraneous,” matters to those that may arise during criminal proceedings and submitted:

“Could it seriously be suggested for example in a murder trial that a key witness to the killing happened to be travelling by train to the location at which the observations of the killing occurred and observed a car and said it was yellow, and yet under cross examination conceded it might have been blue? Does that taint the entirety of that witness’s evidence? Of course it doesn’t.” 76

[84] Mr Walkaden had referred Person A to an exhibit that contained Person A’s Facebook “likes” (that referred to various films and sites that she had “liked”). 77 The act of “liking” material on Facebook requires minimal effort and does not necessarily provide an insight into a person’s interests. It is considered to be a casual act, and is often done so accidentally, or used ironically or arbitrarily. There were no dates on this extract. Person A indicated she had Facebook for a number of years prior to her employment.

[85] Further, in re-examination, Person A stated, “[m]y phone does not have a password lock.  My partner knows my Facebook password, by choice, and my Facebook is actively logged in on my phone at all times, which gives anybody when I am not near my phone access to my Facebook.  I have also held my Facebook account since I was in high school and I have never had a phone with a passcode on it, and people could always get access.” 78 No reliance is placed on this evidence; it is considered that it does not address or confirm the character of this young woman.

[86] In relation to the nature of the alleged contact in the man basket, 79 it was submitted by the Respondent that the distinction (raised in cross-examination with Person A) between a squeeze, a grab or a pat was an exercise in semantics. In summary, it was submitted by the Respondent, that it was necessary to, “heavily scrutinise the veracity of the challenges to Person A’s credit and to look carefully at the material that my friend seeks to rely on as giving rise to adverse credit findings…”80

[87] In making an assessment as to whether the conduct of the two allegations occurred, the Briginshaw test is applied to the evidence as follows:

“26. In such circumstances, the Commission must apply the Briginshaw standard when determining whether the Allegations are true or false. The Briginshaw standard was explained by Dixon J in these terms:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed.

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

27. A Full Bench of the Commission in Budd v Dampier Salt Limited, 81 considered Briginshaw and held:

So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal/liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: “The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.” 82 [emphasis added]

[88] The test in Briginshaw is fundamentally relevant to this matter, where significant evidence has been led on issues of credibility, in relation to Person A. The allegations are serious, and significant consequences flow from the findings, therefore as set out, ““reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” In regards to the treatment of the allegations of such a serious nature at a workplace, the decision in McKerrow v Sarina Leagues Club incorporated T/A Sarina Leagues Club, is relevant in considering whether there was clear and cogent evidence of the allegations:

“[55] The reason for Ms McKerrow’s dismissal is variously said to be serious misconduct amounting to misappropriation of money and fraud or gross misuse of SLC’s funds. The evidence of Mr Hill is that gross misuse of funds was considered by SLC to be the same as misappropriation and fraud. As previously stated, the central question is not whether members of the Board of the SLC had a reasonable belief that Ms McKerrow engaged in the conduct alleged. Rather, the central question is whether the evidence establishes that Ms McKerrow did engage in such conduct. The allegations are extremely serious. The seriousness of the allegations is heightened by the fact that other money amounting to almost $10,000 was missing at the time Ms McKerrow was dismissed, and the implication flowing from the dismissal was that she was responsible for this. That implication morphed into an actual allegation in these proceedings.

[56] The standard of proof to be applied in deciding whether Ms McKerrow engaged in misappropriation and fraud as alleged, is proof on the balance of probabilities. That is the case notwithstanding that the strength of the evidence necessary to establish this to the required standard may vary, because of the seriousness of the allegations. It is also the case that a finding that Ms McKerrow has engaged in conduct amounting to fraud or misappropriation, should not be lightly made, and must be based on clear and cogent proof.

[57] In relation to the $12,000 transfer of funds, I am unable to be satisfied, on the balance of probabilities, that the conduct of Ms McKerrow in paying an account on behalf of the SJRLC, in all of the circumstances of this case, was serious misconduct, whether it is described as misappropriation and fraud, or gross misuse of the funds of SLC. It was not established that Ms McKerrow’s conduct was dishonest. In my view this is an essential element of fraud or misappropriation.” 83 [emphasis added]

[89] The standard of proof was considered, in relation to the allegations, the Applicant stated he was not working in the man basket on Friday, 26 August 2016. In his affidavit sworn on 4 August 2017, the Applicant described the tasks being conducted on Saturday, 27 August 2016. He described the duties being undertaken in the confined space of the man basket and that, on his evidence, the contact between him and Person A was inevitable in performing these duties. He stated that Person A was having significant difficulty in performing these duties and he had to undertake her duties, as well as his:

“34. On Saturday 27 August 2016, I (and the rest of D Crew) worked the day shift. I was working with [Person A] and another Mine Technician namely Craig Marscke. Craig is commonly referred to as Crackers. We were hanging mesh and moving cables in the B Heading at 44 cut through to the 47 cut through. [Person A] and I were working in the man basket. Crackers was operating the vehicle that moves the man basket. The cables are on the right hand side of the roof of the Mine. The task involved me cutting the cables so that they are hanging from the roof and then moving and rehanging the cable. The cables can be quite thin, for example equivalent to a mobile phone charger, or as thick as a 3 inch cable. In order to cut, move and rehang the cables, I was required to lift the cables above my head. Once I had lifted the cable into position, [Person A] would hook the cable into the mesh that was already on the roof of the Mine. I would then pick up a piece of mesh and lift that piece of mesh above my head and place it on the roof of the Mine. [Person A] would then tie the piece of mesh to the roof of the Mine.

35. Each piece of mesh is approximately 5.2 metres long. The man basket, which is about 3 metres square, was elevated about 1 or 2 feet above ground. During the course of this shift, [Person A], Crackers and I installed about 30 pieces of mesh in the manner described above.

36. The task was a physical task for both [Person A] and I. Both of us were required to stretch and lean. I was also required to lift the pieces of mesh in the manner described above. The task meant that [Person A] and I were working in very close proximity. There was body contact between [Person A] and I. I cannot remember which parts of our bodies touched, however, I am certain that our arms, torso, hips and legs would have come into contact at some point.

37. I definitely did not deliberately pat, slap or otherwise touch [Person A] on her backside.

38. On Sunday 28 August 2016, I (and the rest of the D Crew) worked the day shift. I was working with [Person A] and Crackers. We were hanging mesh and moving cables in the B Heading at 47 cut through to the 53 cut through. [Person A] and I were working in the man basket in the manner described above. Crackers was operating the vehicle that moves the man basket.

39. On Monday 29 August 2016, I (and the rest of D Crew) was working the day shift. I cannot remember whether I worked with [Person A] this shift. I was hanging mesh in 52 cut through, which as explained above required the use of a man basket, and was also performing general housekeeping.

40. On Tuesday 30 August 2016, I (and the rest of D Crew) was working on the belt crew. I was working with 3 or 4 workmates. I cannot remember whether I worked with [Person A] this shift. We were replacing damaged rollers. This task did not require the use of a man basket.

41. I finished work at 5pm on Tuesday 30 August 2016. I was then on annual leave and did not return to work until 9 November 2016.” 84 [emphasis added]

[90] The evidence of Person A in relation to the man basket allegation was not reliable. During the cross-examination of Person A in relation to this incident, the following exchange occurred:

Mr Walkaden: You didn’t actually see Mr Wilson’s hand touch your bottom, did you?

Person A: No.

Mr Walkaden: Your evidence is you felt something touch you on the backside?

Person A: Yes.

Mr Walkaden: Given you didn’t see Mr Wilson's hand, you can't be 100 per cent certain that that was indeed Mr Wilson’s hand, can you?

Person A: No.

Mr Walkaden: Do you say it was a pat?

Person A: To the best of my recollection.

Mr Walkaden: Was it a squeeze?

Person A: I’m not sure.

Mr Walkaden: So, it’s not a squeeze, or you’re not sure, sorry. Was it a grab?

Person A: No.

Mr Walkaden: Not a grab, not sure whether it was a squeeze?

Person A: Not.

Mr Walkaden: Is that correct?

Person A: Yes.

Mr Walkaden: But maybe it was a pat?

Person A: Yes…

Mr Walkaden: I just draw your attention to your first affidavit, I just ask you to refer to paragraph 18, the last sentence. Have a read of that to yourself. Do you see that?

Person A: Yes.

Mr Walkaden: Do you see the last sentence in paragraph 18, you say, to the best of my recollection when he placed his hand - and you’re referring now to Mr Wilson, aren’t you?

Person A: Yes.

Mr Walkaden: On my bottom, he patted or squeezed my bottom?

Person A: Yes.

Mr Walkaden: Aren’t you saying there, to the best of your recollection, it was a pat or a squeeze?

Person A: Yes.

Mr Walkaden: You recall a moment ago, when I asked you whether it was a squeeze, you said not sure?

Person A: Yes.

Mr Walkaden: Do you accept that that answer is inconsistent with the last sentence of paragraph 18 of your affidavit?

Person A: No.

Mr Walkaden: Aren’t you saying at the last sentence of paragraph 18, as best as you can recall, it was a pat or a squeeze?

Person A: Yes.

Mr Walkaden: But aren’t you now saying in evidence today, you're not sure whether it was a squeeze?

Person A: Yes, to the best of my recollection.

Mr Walkaden: Well, you didn’t say to the best of your recollection, when I asked you before taking you to paragraph 18, did you?

Person A: No.

Mr Walkaden: You’re just putting that in now, aren’t you?

Person A: Yes.

Mr Walkaden: Is that because you can anticipate there’s some sort of inconsistency between the answer you’ve given on oath today and what you've said in your affidavit?

Person A: No.

Mr Walkaden: Did you say the contact with your backside was deliberate?

Person A: Yes.

Mr Walkaden: Can I just draw your attention to Mr Wilson’s first affidavit and I just ask you to turn to paragraph 36 of Mr Wilson’s first affidavit and you’ll see - if you need to read the paragraphs above you’ll see the task that Mr Wilson describes as a physical task for both yourself and himself is effectively, the hanging of cables, hanging mesh and moving cables?

Person A: Yes.

Mr Walkaden: See that, and do you see that at paragraph 36, the fourth sentence, Mr Wilson says “this task meant that Person A and I were working in close proximity”? You agree, don’t you, that on the occasion where you said Mr Wilson made contact with your backside, that you were working in close proximity with him?

Person A: No.

Mr Walkaden: You don’t?

Person A: No.

Mr Walkaden: You agree, don’t you, that in performing that task there was body contact?

Person A: Yes.

Mr Walkaden: The fact that you’ve made body contact with somebody else, doesn’t that suggest you are working in close proximity with that person?

Person A: Yes.

Mr Walkaden: Your previous answer, where I said to you were you working in close proximity with Mr Wilson, do you remember me asking you that question?

Person A: Yes.

Mr Walkaden: Do you remember you denying that you were working in close proximity?

Person A: Yes.

Mr Walkaden: You now accept you were working in close proximity?

Person A: Yes.

Mr Walkaden: So, your previous answer was incorrect?

Person A: No. 85 [emphasis added]

[91] Person A’s evidence under cross-examination, was not clear and cogent on this allegation, as to the occurrence of “deliberate” touching by the Applicant of Person A, as she had alleged. The description of the confined space of the man basket and the nature of the duties being performed in close proximity, was considered against the evidence of the Applicant, in discharging the duties for both of them. It is not beyond the balance of probabilities that inadvertent, not deliberate contact did occur.

[92] In relation to the second allegation, Allegation 3 that was put to the Applicant as a reason for dismissal; the Applicant stated that he was not entirely certain but he probably had his break in the crib room on the particular days between 26 to 29 August 2016. He stated that the 35C/T crib room was the closest to where he was working on those particular days. He described the crib room as being 8 metres by 15 to 20 metres long with two tables, one seating 10 to 12 workers and the other about eight workers. He stated it is not the case that all members of the crew will take the crib break at the same time.

[93] He stated he could not recall who was in the crib room during this period of time but he did state he was working the same job as Person A on the 26, 27 and 28 August 2016 and therefore it is probable, that they were having crib at the same time. 86

[94] The Applicant stated he could recall Person A talking about her boyfriend at work and regularly heard her speak in quite graphic terms about the sexual activity she had undertaken, or was planning to engage in, with her boyfriend and that she had recounted relationship difficulties that she was having with him.

[95] Specifically, in relation to the nature of Person A’s comments, the Applicant stated that there was definitely banter at the Mine and that swearing was fairly common, however he distinguished the comments of Person A about her personal sexual activity from anything that he had heard at work. 87

[96] The Applicant stated, in relation to the allegation of the, “gardening and sex,” comment:

“50. As explained above, at the end of my tour on Tuesday 30 August 2016, I was about to take a long period of annual leave. I was travelling back to the UK to attend my brother’s wedding where I was going to be the best man. I was looking forward to his wedding and such a long break. At that time, my mind was focused upon just finishing my tour and then enjoying my time off. I remember some of my workmates were giving me some “stick” about the length of my impending break and suggesting that I may not come back to work. I was giving it back to them and “rubbing it in” and reminding them just how long my break was going to be and just how much I was going to enjoy myself while they would be at work. This is an example of the banter that I described above. I certainly was not making sexual innuendos to [Person A].

51. I deny that I said words to the following effect to [Person A] “That’s ok, you can come and live with me and you won’t have to pay any rent so long as you like gardening and sex and helping around the house”.

52. My house does not have a garden. It has a very small lawn. It takes me about 10 minutes to mow and whipper snip my lawn. I also have some Australian native trees, which about are 10 metres high, and some other plants at the back of my property. I leave that area of my property alone. I don’t do any maintenance or gardening in relation to those trees or plants. I don’t do any gardening and have no need for anyone else to do any gardening on my property. For those reasons, I would have no cause and indeed would not make any suggestion to [Person A] or anyone other person that I needed assistance with my garden.” 88

[97] The Applicant stated he had a partner, daughters and a granddaughter. 89 The Applicant stated he condemned sexual harassment and stated he had worked with other women at the Mine without incident.

[98] In assessing a termination based on misconduct and whether it was harsh unjust or unreasonable, the Full Bench in Culpeper v Intercontinental Ship Management Pty Ltd summarised the approach, as follows:

“[19] Before turning to the first matter, we summarise the proper approach to be taken to a finding in respect of whether the termination based on misconduct was harsh, unjust or unreasonable:

● The Commission is obliged to make a finding as to whether or not there is a valid reason for the termination of the employment. (Edwards v Giudice, Moore J, 94 FCR 561)

● The reason must be “sound, defensible and well founded”. (Selvachandran v Peteron Plastics Pty Ltd, Northrop J, 62 IR 371)

● The appellant carries the onus of establishing a valid reason.

● In a matter in which the termination is based on the conduct of the employee, the Commission must determine that the conduct took place. (Edwards v Giudice, Moore J, 94 FCR 561)

● In determining whether the alleged conduct took place and what it involved, the Commission must make a finding on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. (King v Freshmore, Ross VP, Williams SDP and Hingley C, Print S4213)

● It is not the Court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court but rather it is for the Court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. (Walton v Mermaid Dry Cleaners Pty Ltd, Moore J, 142 ALR 681)

● In deciding whether there is a valid reason, the Commission must look at the applicant's conduct and determine on the balance of probabilities what that conduct was and whether it took place. (Farrugia v Transadelaide, SAIR 6, Stevens DP)

● In matters involving misconduct there is an onus on the employer to establish that the misconduct took place. (YEW v ACI Glass Packaging Pty Ltd, Wilcox CJ, 71 IR 201)

● Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract. (North v Television Corporation, Smithers, Franki and Evatt JJ, 11 ALR 599)

● Serious misconduct will usually justify summary dismissal and will rarely support a finding that a dismissal was "harsh, unjust or unreasonable". (R v Industrial Court; ex parte Mt Gunson Mines Pty Ltd, King CJ, 30 SAIR 504)

● A termination may be harsh because it is disproportionate to the gravity of the misconduct. (Byrne v Australian Airlines Limited, High Court per McHugh and Gummow J, 185 CLR 410)…” 90

[99] The standard of proof to be relied on remains satisfaction on the balance of probabilities. 91 Given the nature of the alleged conduct, a proper degree of satisfaction is required, based on a proper process.

[100] The allegations in this matter are serious and have had a serious effect on the Applicant’s employment. The Applicant referred to the decision in Osborne v Anglo Coal (Callide Management) Pty Ltd, 92 that considered the approach to the assessment of the evidence in such matters, as follows:

“[16] The strength of the evidence necessary to establish a fact upon which serious misconduct is grounded may vary according to the nature of what it is sought to prove, although the standard of proof does not. A finding that a party in civil proceedings has engaged in fraudulent or criminal conduct should not be lightly made, and there is a need for clear and cogent proof. In the present case, Anglo Coal alleges that Mr Osborne was dishonest, and in my view, given the safety regime in the coal mining industry; Mr Osborne’s experience as an operator; combined with the seriousness of the incident, and the consequences to Mr Osborne’s career, this allegation is sufficiently serious so that clear and cogent proof is required to substantiate it.” 93

[101] In regard to the assessment of, “clear and cogent proof,” the Applicant’s case focussed significantly on matters of credibility regarding Person A’s evidence. The Respondent submitted that many of these matters of credit, that were referred to, in relation to Person A, were extraneous. However, part of Person A’s allegation was that the Applicant’s conduct, contributed to her reduced attendance at the Mine and her resignation.

[102] The exchange between Mr Walkaden and Person A (in relation to Exhibit 18, a leave request form signed by Person A) serves as an example of Person A’s lack of recall on critical matters. Mr Walkaden referred Person A to a document, setting out her absenteeism and specifically her claim that her attendance reduced as a result of the Applicant’s alleged conduct toward her. Her evidence, in stepping through the period of her sick leave, did not sustain the claim that her sick leave increased, after the alleged events:

Mr Walkaden: Don’t you say, at the fourth sentence of paragraph 40 of your first affidavit, that your attendance at work after Mr Wilson’s conduct became poor?

Person A: Yes.

Mr Walkaden: Aren’t you attributing blame for your poor attendance to Mr Wilson’s conduct?

Person A: No.

Mr Walkaden: You’re not? You don’t say that your poor attendance can be attributed to Mr Wilson?

Person A: No. 94 [emphasis added]

[103] However, Person A stated in her affidavit that, “[m]y attendance at work after Mr Wilson’s conduct towards [sic] became poor.” 95 Person A went on to state in her affidavit, that there would be occasions on which she would arrive at the Mine, only to find herself unable to commence her shift. Mr Walkaden cross-examined Person A with respect to this and the following exchange occurred:

Mr Walkaden: …Just focusing upon the last sentence of paragraph 40, you can’t recall the dates on which you'd turn up to the mine but couldn’t start work. Can you recall where you got to?

Person A: No, I cannot recall.

Mr Walkaden: You can’t recall whether you got to the car park, sat in your car for a bit and turned around and went home?

Person A: No, I can’t recall.

Mr Walkaden: You can’t recall whether you got to the bath house and got changed and then put your other clothes back on and went home?

Person A: No, I cannot recall.

Mr Walkaden: I see and we’re talking about events that occurred less than a year ago?

Person A: Yes.

Mr Walkaden: Did the events you describe in paragraph 40 last sentence, did it occur on more than one occasion?

Person A: I’m not sure.

Mr Walkaden: Do you remember seeing anyone on those occasions?

Person A: I’m not sure.

Mr Walkaden: You don’t remember talking to anyone?

Person A: Not that I can recall.

Mr Walkaden: No? You turn up to work changed, do you?

Person A: Yes.

Mr Walkaden: Do you have to go and get the various PPE and hard hat and lamp and the various other bits and pieces?

Person A: Yes.

Mr Walkaden: I see. You get them at some point either in the bath house or just a bit later, do you?

Person A: Yes.

Mr Walkaden: Do you recall putting your hard hat on, on those occasions?

Person A: I cannot recall.

Mr Walkaden: At what point in time do you clock on?

Person A: As you walk through the gate.

Mr Walkaden: As you walk through the gate and where’s the gate? Is that when you’re driving your car to the car park or is that somewhere a bit later?

Person A: After.

Mr Walkaden: After, I see. Is the gate after the muster room?

Person A: No.

Mr Walkaden: The gate is before the muster room?

Person A: Yes.

Mr Walkaden: To get to the muster room you’ve got to swipe on, do you?

Person A: Yes.

Mr Walkaden: If you don’t swipe on can you get into the muster room?

Person A: No.

Mr Walkaden: You can’t recall whether you swiped on?

Person A: No, I cannot recall.

Mr Walkaden: Whether you went to the muster room?

Person A: I cannot recall.

Mr Walkaden: Whether you just got as far as the car park?

Person A: I cannot recall.

Mr Walkaden: Do you say that Mr Wilson’s conduct towards you had a significant impact on your mental state?

Person A: Yes.

Mr Walkaden: When did you first see a doctor about those issues?

Person A: I cannot recall.

Mr Walkaden: How many times have you seen a doctor?

Person A: I cannot recall.

…

Mr Walkaden: You say Mr Wilson’s conduct had a significant impact on your mental state?

Person A: Yes.

Mr Walkaden: You say you’ve seen a doctor about those issues?

Person A: No.

Mr Walkaden: No, you haven’t?

Person A: That wasn’t the question.

Mr Walkaden: Sorry?

Person A: That wasn’t the question.

Mr Walkaden: Right. So you haven’t seen a doctor?

Person A: I have.

Mr Walkaden: You have seen a doctor?

Person A: Yes.

Mr Walkaden: Has it been the same doctor?

Person A: No.

Mr Walkaden: You can’t recall how many times you've been to see a doctor about these issues?

Person A: No, I cannot recall.

Mr Walkaden: You can’t recall when you first saw a doctor about these issues?

Person A: No.

…

Mr Walkaden: Prior to the instances that you say Mr Wilson engaged in, did you have any pre-existing anxiety or depression?

Person A: Yes.

Mr Walkaden: Had you sought medical assistance with those issues?

Person A: Yes.

Mr Walkaden: Is the assistance you sought in relation to those issues, was that the same practitioner who has continued to see you?

Person A: No.

Mr Walkaden: Different, is it? When did you first seek treatment for the anxiety and depression?

Person A: I cannot recall.

Mr Walkaden: Was it two years ago, four years ago, ten years ago?

Person A: I cannot recall.

Mr Walkaden: Have you regularly seen a medical practitioner about these issues?

Person A: Yes.

Mr Walkaden: Once a month, once a week, once every six months? What's been the frequency?

Person A: Six monthly.

Mr Walkaden: Six monthly, I see. You're currently 20 years old?

Person A: Yes.

Mr Walkaden: Can you remember roughly how old you were when you - - - ?

Person A: No.

Mr Walkaden: Can you remember whether you were at school?

Person A: No.

Mr Walkaden: You could have been at school?

Person A: Maybe.

…

Mr Walkaden: Just looking at that, when you first sought medical assistance for your anxiety and depression, were you living in [redacted]?

Person A: I’m not sure.

Mr Walkaden: Not sure. Was the assistance sought from a practitioner in [redacted]?

Person A: I’m not sure.

Mr Walkaden: Not sure. So you can’t remember where this practitioner has his or her practice?

Person A: No. No.

Mr Walkaden: Did you go in and attend a physical appointment?

Person A: I’m not sure.

Mr Walkaden: What do you mean you’re not sure whether you went and attended a physical appointment?

Person A: It could have been a phone interview.

Mr Walkaden: It could have been a phone interview?

Person A: That happened.

Mr Walkaden: You can’t remember?

Person A: No.

Mr Walkaden: How would you describe your memory?

Person A: Lacking in some areas.

Mr Walkaden: When you sought this assistance from the medical practitioner, was that the period of time where you were living away for [redacted] for that 18 months or so?

Person A: I’m not sure.

Mr Walkaden: Your anxiety and depression, it can’t be solely attributed to Mr Wilson, can it?

Person A: No.

Mr Walkaden: There are other issues at play here, aren’t there?

Person A: Yes.  96

[104] The evidence in relation to the, “gardening and sex,” comment, Allegation 3 was not made out, on the balance of probabilities. Only the Applicant and Person A were parties to the conversation. That the investigator concluded in the report, that the Applicant froze when this allegation was put to him for the first time, is an inexact proof. The other reasoning of the Respondent has been taken into account. Person A’s evidence of the incident was not convincing and for the reasons set out, the evidence of the Applicant is preferred.

[105] The rule in Nominal Defendant v Clements, 97 is relevant to the evidence of Messrs Bowdler, Guthrie and Gill. The fact that Person A told several persons that the Applicant had engaged in the conduct the subject of Allegation 1(a), does not render more probable the fact that the Applicant made the contact. It does however, rebut any suggestion of recent invention.

[106] Based on Person A’s evidence and the nature of the work, in relation to the allegation that the Applicant deliberately patted, slapped or touched Person A, it is reasonable to conclude that inadvertent contact did occur in the man basket between the Applicant and Person A. On the evidence, it cannot be satisfied that the Applicant, “deliberately,” made contact with Person A. Person A conceded that the contact may have been a pat, however she did not see the Applicant make contact with her, and that they were working in close proximity in the confined space. Accordingly, Allegation 1(a) has not been made out.

[107] It is accepted that personal and embarrassing questions were put to Person A, in connection to the allegations. I have been cognisant of this in evaluating her evidence. The serious nature of the allegations, required Person A’s evidence to be duly scrutinised, in assessing whether there is clear and cogent support for the allegations, justifying dismissal.

[108] Based on the evidence in regard to the allegations, there is not clear and cogent evidence on the relevant test to substantiate the conduct. Accordingly, a valid reason for the dismissal, that is, “sound, defensible or well founded,” has not been made out.

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

[109] It was not in dispute that the Applicant was appropriately notified of the reasons for dismissal. However, the notification of the reasons for dismissal was made approximately three months after Person A had resigned and approximately seven months after the alleged conduct. The Respondent was first aware of the rumours approximately two or three weeks after Person A resigned, in January 2017. The Applicant was not notified at this time.

[110] Person A was interviewed and could not initially recall the timing in the alleged events. Ms Lahey later provided Person A with the Pit Services Report, with various dates where she was working on the same crew as the Applicant. These documents were not provided to the Applicant. The provision of this material to Person A, is considered adversely, in terms of aiding her recollection of the dates, and detail of the events and also that it was not provided to the Applicant to afford him with the same opportunity to consider such, at an equivalent time.

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

[111] It was not in dispute that the Applicant was afforded a series of opportunities to provide a response to the allegations, in terms of correspondence and meetings. It is noted that the number of allegations and the corresponding detail of the allegations evolved over the course of the series of correspondence to the Applicant. The lapse of time between the alleged incidents and the notification of such, to the Applicant, has been taken into account, in terms of the Applicant’s evidence.

(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

[112] The Applicant was permitted to have a support person present at all material times.

(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

[113] The dismissal did not relate to the Applicant’s unsatisfactory work performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[114] The Respondent is a significantly large employer with dedicated human resources professionals and access to industrial relations advice. This has been considered, in terms of the procedural steps in the dismissal, as evidenced by the investigation report prepared by Ms Lahey.

[115] Ms Vassella, the Respondent’s former Human Resources Coordinator, was aware that Person A had been making improper comments at the Mine. In providing a traineeship program, the Respondent had an obligation to carefully monitor the progress of trainees. The reports of the comments and poor language conveyed to the Respondent, provided important information about the relevant circumstances of Person A, particularly as she conveyed she was endeavouring to fit in to what she perceived to be the environment at the Mine. Person A’s perception was incorrect, as evidenced by the report of her language by her co-workers. I make no criticism of the employees, in fact they are to be commended for alerting Ms Vassella and seeking assistance. They did not agree the language was acceptable. It does not appear that they were setting a different set of rules for the trainee; they were seeking assistance for her.

[116] The Respondent had an obligation to take active steps to follow up on the progress of the trainee and the report provided. Person A’s comments were inappropriate, regardless of age or gender. Conduct of the nature alleged, by the Applicant, would not be condoned in any circumstance. The facts and circumstances are specific and should not act to deny opportunities of employment of young people underground.

[117] It is noted that Ms Lahey, the Human Resources Superintendent, was on leave at the time of the co-worker’s report of Person A’s language. Given her approach to human resources matters, more active steps to follow up on these reports of the language being used by Person A and her reasons as to why she was using such language, in addition to her injury and absence from work may have occurred, as well as a proper response to assisting Person A.

(h) any other matters that the FWC considers relevant.

[118] It was submitted on behalf of the Applicant, that the Respondent whilst conducting their investigation, indicated to Person A that she would not be required to travel to Brisbane and give evidence, regarding the allegations. 98 The Applicant’s representative considered this to be misleading. The Respondent rejected this submission, stating:

“…the Commission is being asked seemingly to make some conclusion that the statement was misleading, not in relation to the applicant but Person A, but thereby resulted in some unfairness to the [A]pplicant. Those connections haven’t been made and they couldn’t be made for the very reason which seems to be conceded that Mr Wilson has made plain that the criticisms he made of the process related to the time between when the allegations were first made to him and when the allegations were first raised with the company, such that with the passing of time his capacity to respond was affected.” 99

[119] It is considered that given the potential, in the circumstances, for a long-term employee to be terminated and the propensity for such to be defended, indicating that Person A would not have to give such evidence, was misleading. This has been taken into account, in relation to the nature of the evidence Person A provided to the investigator.

[120] The second matter relevantly raised by the Applicant, was that Ms Lahey provided a copy of the Pit Services Report to Person A, during the course of the investigation. This report was not provided to the Applicant. The Respondent submitted that the allegations of bias by Ms Lahey toward Person A were unparticularised and all other matters were of minimal consequence. This is accepted. However, that this was an issue of procedural fairness, that in using this report, Person A was able to provide times and dates of the alleged incidents. Such a result raises concerns of reconstruction, particularly in circumstances where the Applicant was not able to interrogate the report.

[121] The evidence of Mr Bowdler that Person A had, on occasion slept underground, was consistent with the evidence of the Applicant, that she was struggling with the physicality of the job. The Applicant’s representative argued that sleeping underground was a serious breach of safety rules at the Mine and that, given that this had been brought to the attention of the supervisor, it was argued, it was improper that this was not acted on and demonstrated a difference of treatment between the Applicant and Person A, for an alleged breach of the Respondent’s policies. In his affidavit, the Applicant also stated that whilst in the man basket, he was performing some of Person A’s duties as she was unable to do so. The notes from Person A’s exit interview record her reason for leaving as, “[j]ust not suited to the job, just wasn’t for her.” 100 The notes also record the statement, “Physical nature of activities: it’s very physical. You need to have a girl who is physically capable in there and maybe there needs to be more awareness of how physical it actually is because I took that lightly first off.” Person A also complained, as the first female trainee, about the toilet facilities underground and there was evidence that the tattoo on her thigh had been seen when going to the toilet behind a truck.101 The Respondent is a significantly large employer, who is to be commended for offering the traineeships. However, this case has highlighted the need to more closely oversee its participants’ progress. This is particularly in circumstances where the Respondent could be held vicariously liable for the conduct, as alleged, in this matter.

[122] There was evidence that the Person A had also incurred an injury. There was an absence of evidence that the Respondent had checked how Person A (particularly as a trainee) was discharging her duties. In terms of the Respondent’s duty of care, there was also an absence of evidence of monitoring Person A, after the Respondent’s then Human Resources Coordinator, Ms Vassella had need to have a discussion with Person A (regarding the language she had been using underground, in circumstances where the male colleagues had reported the nature of this language and that it had made them feel embarrassed).

[123] There was no evidence that Ms Vassella had checked on Person A after she had conveyed to her that she had been using such language in an endeavour to fit into the underground environment (as she perceived it to be). A separate set of rules is not required for female trainees to be successful in the underground mine setting; certainly equivalent opportunities are being provided to female trainees and this Decision does not aim to impede such. Examples of women working successfully underground were referred to, by the miners giving evidence. However, management clearly has a heightened duty of care with regard to all trainees, particularly in a situation where they are in receipt of information from co-workers that assistance is required. It was necessary to provide assistance to ensure the success of the traineeship. Further training, mentoring and discussions by human resources officers were warranted steps, that did not occur.

[124] The dismissal, on the basis that there was no valid reason to terminate the Applicant, with approximately 7 years’ service is considered to be harsh, unjust and unreasonable.

REMEDY

[125] In circumstances where a finding has been made that the termination is unfair, the appropriate remedy is considered. Division 4 of Part 3-2 of the Act provides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[126] The Applicant sought reinstatement. Having found that the allegations have not been made out, the Applicant has worked for the Respondent for nearly seven years, Person A is no longer working at the Mine, there is no impediment to reinstatement.

[127] In circumstances where a valid reason for the dismissal had not been found, it is appropriate to preserve the Applicant’s continuity of employment and service.

[128] In assessing the Applicant’s evidence on earnings since the time of dismissal, his evidence was that (taking into account the combination of earnings during that period after dismissal) he received income for this period, equivalent to his prior ordinary time earnings. Accordingly, no Order is made for the payment of remuneration for the period between dismissal and reinstatement. 102

[129] Specific evidence in relation to the matter of earnings was suppressed on request, with no objection of the Respondent. If further reasons are sought on this issue of the interim earnings, such should be applied for within seven days of the date of this Decision. It is noted that such an application should be accompanied with reasons as to why the sources of payment should not be relied on, in the provision of these reasons.

CONCLUSION

[130] In allegations of conduct of this nature, the onus of proof is on the Respondent to satisfy that the conduct occurred as alleged, on the balance of probabilities. The evidence of the Applicant and Person A was in direct contradiction, and has been carefully considered.

[131] Taking into account all of the circumstances of the matter and for the aforementioned reasons, the evidence of the Applicant is preferred, in relation to the allegations. There was no clear and cogent proof before the Commission to conclude, on the balance of probabilities that the allegations were made out. A range of other issues arose from the evidence of Person A’s traineeship. The Respondent was not alert to a number of these matters.

[132] For clarity, in the current environment of sexual harassment allegations, it is necessary to comment that nothing in this Decision should be construed as condoning sexual harassment at a workplace in anyway. Nor should it be interpreted as limiting the employment of females underground. When allegations of sexual harassment and other conduct are made, the Commission has an obligation to carefully assess the evidence and weigh such against the tests in s.387 of the Act.

[133] A valid reason for dismissal was not made out, and accordingly the termination was harsh, unjust and unreasonable. It is appropriate to make an Order for reinstatement and continuity of employment and service.

[134] An Order [PR598176] will be issued together with this Decision.

COMMISSIONER

Appearances:

Mr Adam Walkaden, National Legal Officer of the Construction, Forestry, Mining and Energy Union for the Applicant.

Mr Simon Meehan of Counsel instructed by Ms Tamara Lutvey of Ashurst Australia for the Respondent.

Hearing details:

2017.

Brisbane:

6, 7 and 14 September.

 1   Affidavit of Kaicee Jaide Lahey affirmed 2 August 2017 at Annexure KJL-22.

 2   PR595538.

 3   Transcript at PN654.

 4   Affidavit of Kaicee Jaide Lahey affirmed 2 August 2017 at Annexure KJL-5.

 5   Ibid at [35].

 6   Ibid at [43].

 7   Ibid at Annexures KJL-8 and KJL-10.

 8   Ibid.

 9   Transcript at PN3238 – PN3242.

 10   Affidavit of Kaicee Jaide Lahey affirmed 2 August 2017 at [88].

 11   Ibid at Annexure KJL-22.

 12   Ibid at Annexure KJL-25.

 13   Ibid at Annexure KJL-28.

 14   Ibid at Annexure KJL-29.

 15   Ibid at Annexure KJL-34.

 16   Affidavit of Craig Robert Manz affirmed 4 August 2017 at Annexure CRM-1

 17   Ibid at Annexure CRM-2.

 18   Ibid at Annexure CRM-3.

 19   Ibid at Annexure KJL-2.

 20   Ibid at Annexure KJL-3.

 21   Ibid at Annexure KJL-33.

 22   Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [13].

 23   Applicant’s Outline of Submissions dated 4 August 2017 at [17]; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [6] – [7].

 24   Applicant’s Outline of Submissions dated 4 August 2017 at [18]; B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [41] – [59].

 25   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000).

 26   Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 per Wilcox CJ.

 27   (1938) 60 CLR 336.

 28   [2014] FWC 4691 at [16].

 29   Applicant’s Outline of Submissions dated 4 August 2017 at [29].

 30   Affidavit of Vincent James Wilson sworn 4 August 2017 at [21] – [24].

 31   Affidavit of Person A affirmed 18 August 2017 at [6] – [7].

 32   Transcript at PN635 – PN640.

 33   Ibid at PN654.

 34   Ibid at PN706.

 35   Affidavit of Rodney Norman Williams sworn 14 August 2017 at [9].

 36   Ibid at [17].

 37   Ibid at [18] – [19].

 38   Transcript at PN2796 – 2813.

 39   Second Outline of Submissions on behalf of the Applicant dated 11 September 2017 at [7].

 40   Ibid at [14].

 41   Ibid at [17].

 42   Transcript at PN3531 – PN3536.

 43   Ibid at PN3538.

 44   Respondent’s Outline of Opening Submissions dated 4 August 2017 at [5] – [6].

 45   (1992) 110 ALR 449.

 46   Ibid at 449 – 450.

 47   (1965) 112 CLR 517 at 521.

 48   Respondent’s Outline of Opening Submissions dated 4 August 2017 at [10].

 49   Ibid at [14] – [16].

 50   Affidavit of Person A affirmed 2 August 2017 at [14] – [31].

 51   Transcript at PN1873.

 52   Affidavit of David John Bowdler sworn 26 July 2017 at [12].

 53   Affidavit of Terry Francis Guthrie sworn 26 July 2017 at [13]; Affidavit of Dion Peter Gill sworn 1 August 2017 at [8]; it is noted that Ms Lahey’s notes of the interview with Mr Gill, recorded, “he grabbed her in the confines of basket, she thought maybe it was an accident, but was concerned.”

 54   Affidavit of Dion Peter Gill sworn 1 August 2017 at [9].

 55   Affidavit of Terry Francis Guthrie sworn 26 July 2017 at [15].

 56   Closing submissions for the Respondent dated 13 September 2017 at [23].

 57   Ibid at [30] – [32].

 58   Ibid at [36].

 59   Ibid at [73].

 60   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

 61   Rode v Burwood Mitsubishi (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) Print R4471 at [19].

 62   Applicant’s Outline of Submissions dated 4 August 2017 at [25].

 63   Transcript at PN4366; PN4366.

 64   Ibid at PN4043 – PN4045.

 65   Ibid at PN4066.

 66   Ibid at PN873.

 67   Ibid at PN868; PN4184.

 68   Ibid at PN4187.

 69   Ibid at PN4199.

 70   Ibid at PN4257.

 71   Ibid at PN4371 – 4372.

 72   Ibid at PN4100.

 73   Ibid at PN4152.

 74   Ibid at PN4380.

 75   Ibid at PN4384.

 76   Ibid at PN4385.

 77   Exhibit 19.

 78   Transcript at PN2702.

 79   Exhibit 3 showed a photograph of a loader with a man basket; a confined space.

 80   Transcript at PN4424.

 81   [2007] AIRCFB 797.

 82   Ibid at [26] – [27].

 83   [2012] FWA 1251.

 84   Affidavit of Vincent James Wilson sworn on 4 August 2017 at [34] – [41].

 85   Transcript at PN1542 – PN1572.

 86   Affidavit of Vincent James Wilson sworn on 4 August 2017 at [42] – [46].

 87   Ibid at [49].

 88   Ibid at [50] – [52].

 89   Ibid at [71].

 90   Culpeper v Intercontinental Ship Management Pty Ltd PR944547 at [19].

 91   [2007] AIRCFB 797 at [14].

 92   [2014] FWC 4691

 93   Ibid at [16].

 94   Ibid at PN1123 – PN1149.

 95   Affidavit of Person A affirmed 2 August 2017 at [40].

 96   Transcript at PN1174 – PN1245.

 97   (1960) 104 CLR 476.

 98   Ibid at PN4338.

 99   Ibid at PN4426.

 100   Affidavit of Kaicee Jaide Lahey affirmed 2 August 2017 at Annexure KJL-4.

 101   Transcript at PN2899 – PN2925.

 102   Ibid at PN538 – PN575.

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