Fair Work Act 2009
s.394—Unfair dismissal

Mark Kirkman
v
DP World Melbourne Limited
(U2014/16067)

Application for relief from unfair dismissal – application dismissed.

[1] Mr Mark Kirkman has made an application to the Fair Work Commission (the Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Kirkman was employed with DP World Melbourne Limited (DP World). He commenced employment with Melbourne Terminal, a predecessor entity to DP World in April 1986 working as a clerk. At the time his employment was terminated on 9 December 2014, Mr Kirkman occupied a position as Equipment Controller and occasionally performed the duties of Head Clerk.

[3] Mr Kirkman received a letter on 3 December 2014 which advised him of four allegations against him. These were:

● On or around 13 January 2014 you said to your colleague Stephen Zwarts words to the effect that Annette Coombe “had her own agenda” and that “all she wants is a permanent EC job”. You are also alleged to have said words to the effect that Annette Coombe had “dragged Sharon [Bowker] in” (Allegation 1);

● On or around 13 January 2014 you said to your colleague Stephen Zwarts words to the effect that he had done the wrong thing by dropping out of the union (Allegation 2);

● On 19 January 2014 when Annette Coombe confronted you about what you had said about her to Stephen Zwarts, you yelled at her words to the effect “even blind Freddy can see what you are doing… you want an EC job” and that you were “not going to cop that” (Allegation 3);

● These incidents demonstrate your deliberate targeting of your colleague Annette Coombe (Allegation 4).

[4] These incidents were said to breach various policies and other conditions in relation to Mr Kirkman’s employment. 1

[5] A meeting was held with Mr Kirkman on 4 December 2014 and again on 9 December 2014 to allow him to respond to the allegations. The allegations were found to be substantiated and Mr Kirkman was advised that his conduct was viewed as misconduct and his employment was terminated effective from 9 December 2014. He was paid five weeks’ pay in lieu of notice.

Background

[6] The background to this matter relates to complaints made by Ms Annette Coombe, a Stevedore at DP World, about her treatment at work from about mid-2013. Further incidents occurred at work in or around July and August 2013 in relation to Ms Sharon Bowker and support she had given to Ms Coombe with respect to her complaint. These matters are summarised in Maritime Union of Australia v DP World Melbourne Ltd  2 (MUA v DP World). To the extent it is relevant to the matter before me, I adopt the summary of events as set in that decision. These matters led to the decision by DP World to dismiss Mr Mark Johnston, a Stevedore with DP World, on 28 January 2014.

[7] In May 2014, Ms Coombe, Ms Bowker and Mr Stephen Zwarts, a Foreman at DP World, made applications to the Commission for anti-bullying orders in relation to conduct that included conduct that occurred in 2013 and 2014. The persons named as having engaged in the bullying conduct included Mr Kirkman. Whilst no specific findings were made individually against Mr Kirkman (or anyone else) no evidence was led to rebut the allegations and the Commission was satisfied that Ms Bowker, Ms Coombe and Mr Zwarts had been bullied at work and that there was a risk that, upon their return to work, they would be bullied. 3 Orders were subsequently issued. To the extent that any findings in that decision are relevant to the matter before me, I accept those findings.

[8] Whilst the initial matter in 2013 only involved Ms Bowker and Ms Coombe:

Mr Zwarts became involved in matters in or about August 2013. Prior to that time, Mr Zwarts, a foreman with DP World, had little knowledge about Ms Coombe or Ms Bowker, although Ms Bowker worked with Mr Zwarts on the panel at which he was foreman. On 17 September 2013, Mr Zwarts was in attendance with Ms Bowker, as her support person, at a meeting held with human resources staff of DP World. Ms Coombe also attended the meeting. At this meeting, Ms Bowker and Ms Coombe discussed with representatives of DP World, particular conduct and events that they had experienced following the complaint made by Ms Coombe about Mr Bennier. 4 [Endnotes omitted]

Evidence

[9] Evidence was given in these proceedings by:

● Mr Mark Kirkman, formerly Equipment Controller at DP World;

● Mr Matthew Azzopardi, Equipment Controller at DP World;

● Mr Sean Hodge, Operations Supervisor at DP World;

● Mr Dean Mitchell, Stevedore at DP World;

● Mr Martin Purcell, Stevedore at DP World;

● Ms Annette Coombe, Stevedore at DP World;

● Mr Stephen Zwarts, Foreman at DP World.

● Mr Sunjit (Andrew) Jena, formerly General Manager - Operations at DP World;

● Mr Gregory Muscat, Human Resources Manager at DP World Brisbane Limited;

[10] Mr Kirkman gave evidence in relation to discussions and interactions he had with Mr Zwarts on 13, 20 and 21 January 2014. He also gave evidence of the discussion he had with Ms Coombe on 19 January 2014.

[11] Mr Kirkman also gave evidence of matters he raised with management with respect to Ms Coombe and Mr Zwarts in April of 2014, his interview with an investigator appointed by DP World in mid-2014 and the interviews with management on 4 and 9 December 2014.

[12] Mr Zwarts gave evidence in relation to matters associated with allegations 1 and 2 and Ms Coombe gave evidence in relation to matters associated with allegation 3.

[13] Various employees gave evidence in relation to their observations or what they heard in relation to the conversations between Mr Kirkman and Mr Zwarts and/or Mr Kirkman and Ms Coombe. Where their evidence is relevant to a matter, I have indicated that evidence and my conclusions in relation to it.

[14] Mr Sunjit (Andrew) Jena, formerly General Manager - Operations at DP World, and Mr Gregory Muscat, Human Resources Manager at DP World Brisbane Limited, gave evidence in relation to policies and procedures of DP World, the provisions of the letter of allegations to Mr Kirkman, the meetings with him on 4 and 9 December 2014 and the decision taken to dismiss Mr Kirkman.

Allegations 1 and 2

[15] It is not in dispute, and I am satisfied, that Mr Kirkman had a discussion with Mr Zwarts on 13 January 2014 and that this conversation occurred in the coffee room as the room was described by various witnesses.

[16] Further, I am satisfied that in this conversation Mr Kirkman raised with Mr Zwarts concerns about him having resigned from the union and indicated to him that such a resignation may not go down too well with some of his co-workers. I am satisfied that Mr Kirkman knew Mr Zwarts had resigned prior to approaching him. On his own evidence, Mr Kirkman said to Mr Zwarts “I heard you resigned from the MUA”. 5 I am satisfied that Mr Kirkman included himself in the group of co-workers who may not be happy with Mr Zwarts’ decision to leave the union. Mr Kirkman had a history as a delegate of The Maritime Union of Australia (MUA) for approximately eight years until 2000.

[17] Mr Kirkman said to Mr Zwarts:

…it’s no good resigning. We’ve got processes for dealing with a union delegate. You have no power to complain in the union if you’re not financial… 6

[18] If Mr Kirkman was not part of the group that might not be happy with Mr Zwarts’ decision, it is not clear why he would raise the issue at all with Mr Zwarts.

[19] I am also satisfied that, in this conversation, Mr Kirkman spoke to Mr Zwarts about Ms Coombe and Ms Bowker and, in particular, told Mr Zwarts that Ms Coombe was just after an on-going position in Equipment Control (EC) and that this was being generally discussed by those workers in the EC area. This is supported by Mr Zwarts’ evidence that he rang Ms Coombe after the discussion and told her that he had spoken to Mr Kirkman and that “it was just the normal stuff that…[Ms Coombe is] no good, after a permanent EC job”. 7 There is no reason Mr Zwarts would tell Ms Coombe what he did if it did not occur. He was supporting Ms Coombe and Ms Bowker. He would hardly have sought to make things worse for Ms Coombe by misleading her.

[20] My conclusion that Mr Kirkman spoke to Mr Zwarts about Ms Coombe is also supported by the evidence of Mr Gregory Muscat who gave evidence of the meeting held with Mr Kirkman on 4 December 2014. Mr Muscat’s notes of the meeting 8 indicate that Mr Kirkman said he returned from leave and heard rumours of Mr Johnston, Ms Coombe and Ms Bowker and asked Mr Zwarts if he was alright (although later in the meeting with Mr Muscat agreed that he was aware that Mr Zwarts had resigned from the union). If Mr Kirkman had not spoken to Mr Zwarts about Ms Coombe, it is not clear why he would indicate rumours with respect to her and others as a reason to speak to Mr Zwarts.

[21] I accept that Mr Kirkman raised the issue of Ms Coombe, Ms Bowker and Mr Johnston with Mr Zwarts to encourage Mr Zwarts not to get involved any further in the matters relating to Ms Coombe and Ms Bowker. Mr Kirkman’s comment that he doesn’t “get involved with other people, if you have a problem with someone I am not going to get involved” 9 (even though he was doing just that) was an obvious indication to Mr Zwarts that he should follow that lead and not get involved in the Coombe/Bowker matter.

[22] Mr Kirkman’s evidence that the conversation was cordial was supported by the evidence of Mr Zwarts who said he was not intimidated by the conversation but I do not accept that Mr Kirkman’s intent was just to have a bit of a yarn with a friend, but I return to that later. Having said this, there is nothing to suggest that the conversation was overtly hostile. Mr Zwarts said that they spoke of family problems, if Mr Kirkman should resign and about Ms Coombe and that she was after a job in EC and her sleeping with a supervisor.

[23] My conclusion as to the tone of the discussion is supported by the evidence of Mr Sean Hodge, Operations Supervisor at DP World, Mr Martin Purcell, a Stevedore at DP World, and Mr Matthew Azzopardi, Equipment Controller at DP World. Whilst these witnesses could not be sure of the date of the conversation, I accept, on balance, that they did observe parts of the exchange between Mr Kirkman and Mr Zwarts. Whilst different witnesses put Mr Kirkman and Mr Zwarts in different parts of the coffee room, this accords with Mr Zwarts’ evidence that he and Mr Kirkman started on one side of the coffee room and gravitated to the other side as people came in, got coffee and left.
[24] I am therefore satisfied that the discussion with Mr Zwarts did not involve raised voices and was not overtly aggressive.

[25] The conversation was not, however, confidential and there is no basis on which Mr Kirkman could assume it would be. Even if he told Mr Zwarts that the conversation was confidential, it occurred in the coffee room where people were coming and going on a regular basis and where it could be overheard. One witness suggested he was in the coffee room 10 times a day. The coffee room was small and Mr Kirkman and Mr Zwarts were not huddled in a corner speaking in a quiet voice such that no-one else could hear.

[26] In any event, I find Mr Kirkman’s evidence on this inconsistent. He does not say in his written witness statement that he told Mr Zwarts the conversation was confidential. He says he told Ms Sheryl Pastro, former Human Resources Manager at DP World, and Mr Vlad Jotic, Manager at DP World, that it as a private conversation and that he “viewed it as a private conversation”. 10 It was only in re-examination that Mr Kirkman stated that he said directly to Mr Zwarts that it was a private conversation.11

[27] Because of these inconsistencies, I am not convinced Mr Kirkman told Mr Zwarts that the conversation was private.

[28] If Mr Kirkman wanted to have a private conversation he, firstly, should have done it somewhere where he could not be seen or overheard and, second, he should have told Mr Zwarts that, before he said anything about Ms Coombe and Ms Bowker, he wanted a commitment Mr Zwarts would not repeat the conversation. He did neither of these things and could not expect any presumed confidentiality of the conversation to be observed, particularly in circumstances where he knew Mr Zwarts was supporting Ms Bowker and Ms Coombe.

[29] Whilst there is nothing obviously threatening in Mr Kirkman telling Mr Zwarts of what was being said of Ms Coombe wanting a position in the EC, it was undoubtedly foolish – and his motivation questionable – given the circumstances of the time, including the matters in relation to Mr Johnston of which Mr Kirkman was aware. This was, after all, part of the reason he approached Mr Zwarts. In the context of telling Mr Zwarts that he, Mr Kirkman, did not get involved in other people’s issues, it was clearly an attempt to encourage Mr Zwarts to cease his involvement in the matters involving Ms Coombe and Ms Bowker.

[30] It is not unusual in a highly unionised workplace for a person who has resigned from the union to be encouraged to rejoin and to be reminded on the potential reaction of others to a resignation.

[31] In the context of the totality of the conversation, I am satisfied that comments about the reaction of others to Mr Zwarts’ resignation from the MUA was a further (rather clumsy) attempt to have Mr Zwarts cease his support for Ms Coombe and Ms Bowker.

[32] I should also observe that Mr Kirkman’s claim that he said he does not get involved with other people because it is none of his business, if true, is totally disingenuous because that is exactly what he was doing in having this conversation with Mr Zwarts.

Allegation 3

[33] I am satisfied that Ms Coombe approached Mr Kirkman in the Head Clerks’ office on 19 January 2014. I consider that she was driven to do so following Mr Zwarts ringing to tell her of the conversation he had with Mr Kirkman. In the context of the matter that she had raised with management that ultimately led to the dismissal of Mr Johnston, and what had been said of her and Ms Bowker more generally in the workplace, 12 it is not surprising that she would want to tell Mr Kirkman to stop talking about her.

[34] Putting aside what profanities Mr Kirkman may have used in his conversation with Ms Coombe, I prefer Ms Coombe’s account of the conversation to that of Mr Kirkman. Her evidence was given in a calm and measured manner and was consistent with the written witness statement she provided in the anti-bullying matter. 13 Mr Kirkman, however, had very little clear memory of many of the matters around that time. He could remember little of the conversation he had with Ms Pastro and Mr Jotic on 15 April 2014, even though it was a meeting he had requested. He could not remember all of his conversation with Mr David Gunzberg, a person engaged to conduct an investigation into certain matters at the worksite, in June 2014 and had virtually no recollection of the matters discussed in the meetings with Mr Jena and Mr Muscat in December 2014. Despite this, he says he has an excellent memory of a conversation with Ms Coombe in January 2014.

[35] My decision as to credibility is further supported by Mr Kirkman’s own evidence that what he said to Ms Coombe on that day was patently not true. He told Ms Coombe he had not spoken about her to anyone and he was “untruthful” to her to suit his own wish to not talk to her. He clearly had spoken about Ms Coombe to Mr Zwarts and he had been talking about her with a lot of people because of the situation he says existed in the EC room.

[36] I do accept that Mr Kirkman was not happy having the conversation that day due to matters in his private life. That he was upset when Ms Coombe approached him and raised issues of him talking about her may well explain his reaction to her.

[37] I do not accept that Ms Coombe dragged a chair up to Mr Kirkman and sat down. No-one else gave this evidence. Whilst Ms Coombe says she did not sit down during the discussion, the evidence of Mr Brett Harkins, a Straddle Driver at DP World, is that he saw her sitting down. Nothing of significance turns on this matter.

[38] I am satisfied that Ms Coombe asked Mr Kirkman to stop talking to others about her and that Mr Kirkman said that he had not spoken to others of her.

[39] I accept the evidence of Mr Harkins that he walked into the clerk’s office and saw Ms Coombe and Mr Kirkman and heard Mr Kirkman say words to the effect that whatever happened he had nothing to do with it and he wanted nothing to do with it. I accept that Mr Kirkman may have seemed upset and red in the face and unwell. By any account of the conversation, it was a contested one between Mr Kirkman and Ms Coombe. Mr Kirkman lied to Ms Coombe and she knew this. Both of them left the room distressed. This is supported by Mr Harkins’ evidence that he saw Mr Kirkman afterwards and he was visibly upset. This is not contrary to Ms Coombe’s evidence that by the end of the conversation Mr Kirkman was angry.

[40] I find the evidence of Mr Purcell about the conversation quite disturbing. He said that Ms Coombe was aggressive, she was “smirky”, it was “full on”, “confrontation plus” and that Mr Kirkman was “visibly shaken” by the conversation and “out of his depth”. Yet Mr Purcell did not consider, as Head Clerk, that the matter was such that he should intervene or check on Mr Kirkman after Ms Coombe left. He did not consider the conversation as insulting and says no bad language was used. His actions – or lack thereof – belie the aggression he says Ms Coombe brought to the discussion. Mr Purcell also said that he was not watching what was happening the whole time which again seems strange if Mr Kirkman was in the state Mr Purcell says he was in. Mr Purcell’s evidence suggests that he did not want to get involved in whatever was happening. His evidence should be seen in this light and the weight afforded to it reduced.

[41] Mr Hodge’s evidence is that he did not hear a heated argument between Ms Coombe and Mr Kirkman and that if he had, he would have intervened. He said he would hear a heated argument from his office. He does, however, recall Ms Coombe coming to him after her discussion with Mr Kirkman and telling him she was stressed and was going home.

[42] That the conversation occurred on a Sunday and hence no-one was working in the human resources (HR) area does not detract from the evidence of Ms Coombe that, when she said to Mr Kirkman that she had been told he was talking about her, Mr Kirkman pointed to the operations area and told her to get the person who had said that up to the office, and then suggested they should go into the HR area. Mr Kirkman, on his own evidence, was angry and distressed. I accept that he was not suggesting they literally go into HR then and there but rather was baiting Ms Coombe and perhaps encouraging her to retract her statement that he had been talking about her.

[43] I make no finding as to whether Mr Kirkman used the word “cunt” in the conversation with Ms Coombe. It was not put to Mr Kirkman that he had used such language. On the basis of the anti-bullying application made by Mr Zwarts, 14 such language is used in the workplace. This is not to suggest that such language is acceptable. It is derogatory, crass and unedifying in any context.

[44] Ms Coombe’s evidence does not stand or fall on whether such language was used, nor on her failure to produce her diary. Ms Coombe, early in her evidence, asked if she could look at her notes. She then said “They’re from my diary” 15 (underlining added) and that it was a diary she had kept at the time (of the incidents). In further evidence, she said that Mr Kirkman’s use of the word “cunt” was in her diary.

[45] I draw no conclusion from Ms Coombe’s failure to produce her diary. She gave evidence pursuant to an Order of the Commission that she attend. In any event, I am not satisfied that, during her evidence, she was directly asked to produce the diary such that I should draw any conclusion from its non-production. Ms Coombe was a witness. If either party wanted the diary produced they could have asked her directly (neither did) or sought orders for its production.

[46] As I said above, however, Ms Coombe’s reliability as a witness does not rest on the use of the word “cunt” or the production of the diary.

[47] If it is the case that Mr Kirkman did not want to be dragged into the matter, he should have considered this before he spoke to Mr Zwarts about Ms Coombe and when he was speaking to others about her.

[48] I am therefore satisfied that on 19 January 2014, Ms Coombe approached Mr Kirkman calmly to speak to him about him talking about her to others. I am satisfied that the conversation became heated. By the end of the conversation, I am satisfied that both Mr Kirkman and Ms Coombe were upset. Ms Coombe was physically ill and went home and did not return for a couple of days. Mr Kirkman left the workplace for a short while, upset, but returned to complete his shift.

[49] I am satisfied that Ms Coombe asked Mr Kirkman to stop speaking about her to others. I am satisfied that he said he had not been talking about her and that he wanted to know who had told her he was.

[50] On the basis of Ms Coombe’s uncontested evidence in the anti-bullying matter and her oral evidence before me, I am satisfied that Mr Kirkman said to Ms Coombe that “even blind Freddy” could see what she was up to, that she wanted a job in EC and he was not going to cop being pushed out. Further, I am satisfied that Mr Kirkman made it clear to Ms Coombe that his “mates” had told him what was going on and he believed them and Ms Coombe was lying. Further, I am satisfied that he told Ms Coombe to get the person who said he was talking about her up to the clerk’s office and that he knew everything that went on in HR.

[51] I am satisfied that Mr Kirkman deliberately lied to Ms Coombe when he told her he was not talking about her. I am also satisfied that Mr Kirkman said to Ms Coombe words to the effect that everyone (in the clerks area) wanted to know if they will get pushed out because she was going to be appointed in EC. This was said in the context of Mr Kirkman having said to Mr Zwarts that everyone knew that Ms Coombe just wanted an EC position.

Allegation 4

[52] Mr Kirkman considered himself a “big fish” in the workplace – he said so to Ms Pastro and Mr Jotic in the meeting with them on 15 April 2014. 16

[53] His discussion with Ms Coombe on 19 January 2014 was in the context where he was talking to a lot of people about Ms Coombe “because of her situation coming into the EC room”. 17

[54] The “situation” of Ms Coombe coming into the EC room related to the complaint Ms Coombe made about another worker in relation to a comment he had made relating to her. This is the incident that led to Mr Johnston being dismissed from his employment and ultimately to the anti-bullying applications made by Ms Coombe, Ms Bowker and Mr Zwarts.

[55] The comments of Mr Kirkman on 19 January 2014 were, therefore, not without context. Comments that his “mates” were telling the truth with its implication that Ms Coombe was lying and that all she was after was a job in EC (that would apparently – given the passion of the matter – result in someone already in there having to move outside) in this context could be seen as a deliberate targeting of Ms Coombe by Mr Kirkman.

[56] Mr Kirkman was aware of the issues in the workplace. I am satisfied that his discussion with Mr Zwarts of Ms Coombe and his discussions with other workers were deliberate targeting of Ms Coombe.

Further exchanges between Mr Kirkman and Mr Zwarts

[57] Mr Kirkman and Mr Zwarts had two further encounters after 13 January 2014 – these were on 20 and 21 January 2014.

[58] Mr Kirkman’s evidence is that he told Ms Pastor and Mr Jotic in the meeting with them on 15 April 2014 that when he saw Mr Zwarts on 20 January 2014 he said words to the effect that personally they were finished. When Mr Kirkman again saw Mr Zwarts on 21 January 2014, Mr Zwarts said he wanted to talk to Mr Kirkman but Mr Kirkman replied that he did not want to talk to Mr Zwarts and walked off.

[59] Mr Kirkman said that the reason for his changed attitude to Mr Zwarts between 13 January 2014 and 20 January 2014 and the reason he told Mr Zwarts not to talk to him again was the “trust issue”. He considered the conversation on 13 January 2014 to have been amicable and the pair had shaken hands at the end of that meeting.

[60] On his own account, I am satisfied that Mr Kirkman gave Mr Zwarts the cold shoulder on 20 and 21 January 2014.

[61] Mr Kirkman, inexplicably, gave no further evidence of the incidents with Mr Zwarts on 20 or 21 January 2014 even though, clearly, his actions arose from the matter on 13 January 2014 and the discussion with Ms Coombe on 19 January 2014. They were also part of the reason for his complaint that led to his meeting with Ms Pastor and Mr Jotic on 15 April 2014.

[62] I am satisfied that Mr Kirkman told Mr Zwarts that he wanted no more to do with him on 20 January 2014 because he believed (correctly) that Mr Zwarts told Ms Coombe of the conversation on 13 January 2014 and that this led Ms Coombe to confront Mr Kirkman on 19 January 2014.

Was the conduct of Mr Kirkman in breach of DP World Policies?

[63] In the letter of dismissal, DP World said, of Mr Kirkman’s conduct, that he was in breach of:

● DP World Australia Discrimination, Harassment, Bullying and Freedom of Association Policy (as in place at the time of the incidents)

Your behaviour constitutes Unlawful Harassment and a breach of Freedom of Association provisions under this policy directed at Ms Coombe for having made a complaint and Mr Zwarts because of his non-membership of the union. 18

● DP World Code of Conduct 19

Your actions are in direct conflict with the DP World Code of Conduct which states that all employees are expected to act with honesty, integrity and show respect for others.

● Your contract of employment

Your behaviour in these matters is contrary to the lawful and reasonable directions of the Company in the form of its policies, procedures and other instructions.

● DP World Melbourne Enterprise Agreement 2011

The nature and content of your behaviour towards other employees of DP World Melbourne constitutes behaviour against your colleagues. Clauses 8.8 and 8..8.7 of the Enterprise Agreement establishes such behaviour as a breach of the contract of employment.

● Your Workplace Health, Safety and Environment Responsibilities

Your Workplace Health, Safety & Environment Responsibilities are set out in the Employee Handbook and state that all employees of DP World “have a responsibility to take appropriate care… for the safety of their fellow workers”. Your harassing and intimidatory behaviour posed a real threat to the wellbeing of your colleagues Ms Coombe and Ms Zwarts (sic). 20

[64] I have considered my findings with respect to the conduct of Mr Kirkman against each of the policies and the like set out above.

[65] I am satisfied that, at the time of the incidents complained of, Mr Kirkman was aware that:

● He had an obligation not to create a risk to health and safety.

● He had an obligation not to bully or harass others at work (although he says he was not aware of any specific policies and procedures).

● He was aware of policies on how employees conduct themselves at work.

● He was aware that employees should not be disadvantaged because of their union membership.

[66] Prior to deciding if Mr Kirkman’s conduct breached the policies of DP World, it should be noted that there has been a finding of fact that Ms Coombe and Mr Zwarts were bullied at work within the definition of bullying in the FW Act. 21

[67] The Respondents in that matter, which included Mr Kirkman, did not put any evidence to rebut the allegations of bullying. Whilst the findings of bullying were directed against the Respondent group generally and no-one specifically, there was no attempt by Mr Kirkman in that matter to prove that he had not, himself, engaged in bullying conduct.

[68] It is relevant to my consideration that I do not consider that a finding that a group of individuals engaged in bullying conduct (which is repeated unreasonable behaviour) allows me to conclude that any single individual by themselves, engaged in repeated and unreasonable behaviour.

DP World Australia Discrimination, Harassment, Bullying and Freedom of Association Policy (Discrimination Policy)

[69] This policy states that an employee is required not to engage in conduct that amounts to unlawful discrimination, harassment, bullying or a breach of freedom of association laws.

[70] The Discrimination Policy defines bullying as “repeated, unreasonable behaviour directed towards an employee, or group of employees, that may cause harm, including risks to health and safety”. 22 This is replicated in the DP World Employee Handbook 2013 (Employee Handbook).

[71] The freedom of association provisions of the Discrimination Policy and Code of Conduct mirror the provisions of the FW Act.

Were Mr Kirkman’s actions with respect to Ms Coombe bullying behaviour?

[72] I agree with the submissions of DP World that a person does not have to be present when conduct occurs for conduct to be “directed” toward that person. A campaign of whispers about a person never directly put to that person may easily come within the rubric of bullying. The identifier of bullying is that it is repeated, it is unreasonable and it may cause harm to the person.

[73] With respect to Ms Coombe, there is clear evidence of two incidents in which Mr Kirkman directed unreasonable behaviour towards her. The first is during the discussion with Mr Zwarts on 13 January 2014 and the second in the direct discussion with Ms Coombe on 19 January 2014.

[74] I am satisfied that in his discussions with Mr Zwarts on 13 January 2014, Mr Kirkman made comments that were directed at Ms Coombe. Mr Kirkman was aware that there were issues in relation to Mr Johnston, Ms Coombe and Ms Bowker. 23 His comments were unreasonable in that they failed to recognise Ms Coombe’s right to a safe working environment free from bullying and harassment and her right to make a complaint. By saying to Mr Zwarts that everyone knew Ms Coombe was trying to get a job in EC, he trivialised her complaint. By suggesting that he (Mr Kirkman) would not get involved in other people’s issues, he was implying to Mr Zwarts that he should cease supporting Ms Coombe and Ms Bowker and, in doing so, failed to recognise Ms Coombe’s right to a safe working environment. This is also unreasonable behaviour within the meaning of the policy.

[75] By repeating the claims to Mr Zwarts that Ms Coombe was just after a job in EC and by encouraging Mr Zwarts not to get involved in the matter, Mr Kirkman also sought to isolate Ms Coombe from support in the workplace. This is unreasonable behaviour.

[76] I have already dismissed claims that the conversation with Mr Zwarts was somehow private. It was conducted in a public place and in circumstances that Mr Kirkman knew Mr Zwarts was supporting Ms Coombe and Ms Bowker. He would have had a reasonable expectation that the conversation would be relayed back to Ms Coombe.

[77] I am satisfied that, in the discussion with Ms Coombe on 19 January 2014, Mr Kirkman engaged in unreasonable conduct. By suggesting that what his “mates” told him was true (with the clear implication that Ms Coombe’s complaint was a lie), Mr Kirkman intended to intimidate Ms Coombe and, in doing so, his conduct was unreasonable.

[78] By stating that “blind Freddie” could see that all Ms Coombe wanted was a job in EC and he was not going to cop being pushed out, Mr Kirkman intended to intimidate Ms Coombe into not pursuing her complaint.

[79] These incidents suggest that Mr Kirkman engaged in repeated conduct which was unreasonable that was directed at Ms Coombe. I am satisfied that this conduct could cause harm to Ms Coombe by making her feel outcast and isolated in the workplace and would adversely affect her health and safety at work.

[80] For these reasons, I am satisfied that Mr Kirkman bullied Ms Coombe within the meaning of the Discrimination Policy and the Code of Conduct.

Were Mr Kirkman’s actions with respect to Mr Zwarts’ bullying behaviour?

[81] I have set out above the nature of the interactions between Mr Kirkman and Mr Zwarts on 13, 20 and 21 January 2014. I am satisfied that by 21 January 2104, Mr Kirkman sought to isolate Mr Zwarts by not talking to him. Mr Kirkman considered himself a “big fish” in the union and I am satisfied he considered he still had some sway amongst union members.

[82] I am satisfied that Mr Kirkman sought, in his conversation with Mr Zwarts, to deter Mr Zwarts from his on-going support of Ms Coombe and Ms Bowker and that he did this by his comments to the effect of not getting involved in other peoples’ problems and his suggestions that Mr Zwarts would leave himself open to “a lot of crap” 24 by his fellow workers if he did not re-join the union. In this respect, I am satisfied that Mr Kirkman intended to intimidate Mr Zwarts. This intent was amplified by the cold shoulder treatment Mr Kirkman gave to Mr Zwarts on 20 and 21 January 2014 when Mr Zwarts tried to speak to him.

[83] Whilst Mr Zwarts may not have felt threatened in his conversation with Mr Kirkman on 13 January 2014, I am satisfied that Mr Kirkman intended to intimidate Mr Zwarts in that conversation and to isolate him after 19 January 2014. I accept that intimidation does not have to manifest itself in raised voices or physical threats.

[84] Mr Kirkman’s conduct was therefore repeated and it was unreasonable behaviour. I am therefore satisfied that Mr Kirkman bullied Mr Zwarts within the meaning of the Discrimination Policy.

Did Mr Kirkman breach the freedom of association provisions in his discussion with Mr Zwarts?

[85] In response to a question about why he had responded as he did to Mr Zwarts on 20 January 2014 (the day after his heated discussion with Ms Coombe) Mr Kirkman said:

Well, after our conversation on the 13th we shook hands and it was amicable when we left…because I knew how the - talking about the union and all that, you know, what ramifications it can have… 25

[86] It is apparent from this response that Mr Kirkman was aware that there were live issues in the workplace about approaching Mr Zwarts about his union membership. His response in evidence is otherwise inexplicable.

[87] I accept Mr Zwarts’ evidence that he was not offended by the discussion he had with Mr Kirkman on 13 January 2014 and that the conversation was conducted in a cordial manner.

[88] I do not consider that the conversation was directed to Mr Zwarts and his union membership but primarily to Ms Bowker and Ms Coombe and Mr Zwarts’ support for them. His union membership was part of this context.

[89] I am satisfied that Mr Kirkman’s conduct directed to Mr Zwarts on 20 and 21 January 2014 was in response to Mr Zwarts telling Ms Coombe of the conversation he had with Mr Kirkman on 13 January 2014 and not in respect of his union membership.

[90] I am therefore satisfied that Mr Kirkman did not breach the freedom of association provisions of the Discrimination Policy.

[91] It must be acceptable in a workplace for employees to talk to other employees about their union membership. This is not unusual in workplaces such as this where there is, as I understand it, high levels of union membership. The important matter is if this discussion crossed the line such that it breached the relevant policy.

[92] I do not see the discussion with Mr Zwarts of his resignation of his union membership a breach of the freedom of association provisions of the Discrimination Policy. Mr Kirkman did not take action against Mr Zwarts because he was not a union member but rather for other reasons as outlined above.

DP World Code of Conduct

[93] The Code of Conduct as it applied at the time of the incidents subject to this matter was also set out in the Employee Handbook.

[94] To the extent that I have found that Mr Kirkman’s conduct is in breach of the Discrimination Policy as outlined above, his conduct breached the Code of Conduct.

Mr Kirkman’s contract of employment

DP World Melbourne Enterprise Agreement 2011 26 (Enterprise Agreement)

Your Workplace Health, Safety and Environment Responsibilities

[95] No submissions were put to the Commission as to how Mr Kirkman’s conduct was specifically in breach of these obligations beyond the findings I have made above. However, to the extent that Mr Kirkman put Ms Coombe’s health and safety at risk by his conduct towards her, I am satisfied that he did breach his responsibilities with respect to workplace health and safety.

Legislative requirements

[96] I am satisfied (and it was not contested) that Mr Kirkman is protected from unfair dismissal. (s.382 of the FW Act)

[97] Section 385 of the FW Act states:

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.

[98] I am satisfied that Mr Kirkman has been dismissed. The Small Business Fair Dismissal Code does not apply and the dismissal is not a case of genuine redundancy.

[99] It falls, therefore, to determine if the dismissal of Mr Kirkman was harsh, unjust or unreasonable.

[100] Section 387 of the FW Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

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

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

Section 387(a) – a valid reason for dismissal

[101] Mr Kirkman was dismissed because his conduct breached the provisions of the Discrimination Policy, the Code of Conduct, his contract of employment, the relevant Enterprise Agreement and his health, safety and environment responsibilities.

[102] For a reason to be valid, it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason”. 27

[103] I have found above that Mr Kirkman was aware of his obligations in the workplace. Even if he did not know the precise policy that was a source of this obligation, he was aware of the obligations and had a responsibility to comply with them.

[104] I have also found above that Mr Kirkman’s conduct was in breach of the Discrimination Policy and the Code of Conduct.

[105] It is, in my opinion, completely unremarkable that DP World expected Mr Kirkman to comply with its policies. Mr Kirkman, in not doing so, placed two of his colleagues in a position where they were intimidated and bullied within a work context that already had placed stress on Ms Coombe. Mr Kirkman was aware of this context and, for reasons known to him, chose to buy in to the matter. He should have taken the advice he gave to Mr Zwarts to stay out of other people’s issues.

[106] I am satisfied that Mr Kirkman’s conduct and his breaches of the Discrimination Policy and Code of Conduct provide a valid reason for his dismissal.

Section 387 (b) – whether the person was notified of that reason

[107] I am satisfied that Mr Kirkman was advised of that reason – being the valid reason I have found above – by letter dated 3 December 2014. 28

Section 387(c) – an opportunity to respond to any reason related to the capacity or conduct

[108] For a person to be found to have been given an opportunity to respond, that opportunity must be given prior to the decision being taken to dismiss the person.

[109] Mr Kirkman was provided with a letter of allegations on 3 December 2014. He was called to a meeting with Mr Jena and Mr Muscat on 4 December 2014. He attended that meeting with his union representative. I am satisfied that Mr Kirkman was given an opportunity to respond. I accept that his representative did most of the talking during the meeting of 4 December 2014 but this was accepted by Mr Kirkman as how things were done.

[110] A decision was not made with respect to Mr Kirkman’s response until a further meeting was held on 9 December 2014 and Mr Kirkman advised of DP World’s decision to dismiss him.

Section 387(d) – unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[111] I am satisfied that Mr Kirkman was not refused access to a support person.

Section 387(e) – unsatisfactory performance

[112] The dismissal did not relate to unsatisfactory performance. This is not a relevant factor in my consideration.

Sections 387(f) & (g) – the size of the employer’s business and absence of dedicated human resource management specialists or expertise

[113] DP World is a large employer. It has not been put that its size had any negative impact on the procedures followed in effecting the dismissal.

Section 387(e) – any other matters

[114] Mr Kirkman had been employed on the wharves for 30 years. Mr Kirkman does have some history of warnings for misconduct. I do not consider these to be extraordinary with such a lengthy period of employment and taking into account the history of work on the waterfront.

[115] In mid-April 2015, Mr Kirkman made a complaint to management that he wanted it arranged to have Ms Coombe, Ms Bowker and Mr Zwarts to stay away from him at work. It is not clear from his evidence if there was an incident following those of January 2014 that caused him to speak to management at this particular time. From late May to early October 2014, Mr Kirkman was on leave including a period where he applied for Work Cover.

[116] He says that, because of his dismissal and subsequent loss of income, he was unable to make payments on his family home and had to sell it. He also had a number of family deaths following his dismissal (although it should be stressed that these are not related to his dismissal) and he divorced within 10 months of the dismissal. Mr Kirkman said he “had a lot of stuff going on with his ex-wife” 29 at the time Ms Coombe came to see him on 19 January 2014.
[117] Mr Jena and Mr Muscat did not make any enquiries of Mr Kirkman’s personal circumstances at the time it was decided to dismiss him. I note that Mr Kirkman did have an opportunity to respond to the reasons for his dismissal and he had a representative with him in the meetings. Any consideration of his personal circumstances could have been put by Mr Kirkman to management. He did not do so. I am not convinced that it was management’s role to specifically ask Mr Kirkman if there was anything in his personal life that they should consider, but I am satisfied that Mr Kirkman was given an opportunity to provide such information.

[118] I have considered all of these matters in coming to my conclusion.

[119] Mr Kirkman submits that he was treated differently to others in that, of the employees of DP World specifically named in Ms Coombe’s and Mr Zwarts’ applications to stop bullying, he was the only one dismissed.

[120] In Sexton v Pacific National (ACT) Pty Ltd, 30 Vice President Lawler said of claims of unequal treatment:

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a “fair go all round” within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing “apples with apples”. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.

[121] In this case, I am not satisfied that I have sufficient evidence of the circumstances surrounding other employees such that I could make any finding as to differential treatment. As I said above, the findings of bullying in Bowker, Coombe and Zwarts v DP World Melbourne Limited T/A DP World; The Maritime Union of Australia, Victorian Branch and Others  31 (Bowker’s case) does not allow me to conclude that any named individual engaged in any of the specified conduct. This is because of the approach taken by the MUA Respondents in that case to not rebut any allegation. I, therefore, cannot know of the specific conduct engaged in by any individual. Further, however, the decision to dismiss Mr Kirkman was taken prior to any findings in relation to the anti-bullying applications. For this reason, I cannot make any decision as to differential treatment of Mr Kirkman. His submission in this respect must be dismissed.

Conclusion

[122] The events involving Mr Kirkman must be seen in the context of the workplace at the time. Ms Bowker had overheard a conversation in which Ms Coombe’s reputation was traduced. She reported this to Ms Coombe and then supported Ms Coombe in her complaint to management. From this, Ms Bowker and Ms Coombe – and then Mr Zwarts – were treated in an appalling manner by their colleagues. The findings of bullying in Bowker’s case support this.

[123] In the midst of this, Mr Kirkman, who did not want to get involved, had a discussion with Mr Zwarts in which he raised issues in respect of Ms Coombe and Ms Bowker. When Ms Coombe confronted him about this, he lied to her.

[124] At the time of the incidents relevant to these proceedings, a “code of silence” existed at the workplace. That code “fostered a mentality that issues in the workplace should be addressed without DP World’s involvement”. 32 Jessup J said in MUA v DP World33 that there existed “a system of authority and control at the terminal which stands apart from the employer which stevedores are paid to serve, and a breach of norms of behaviour established and enforced through such a system”.34

[125] It was in this context of the workers maintaining a system of control and internal discipline that Mr Kirkman conducted himself. Mr Kirkman was not insulated from what was going on in the workplace. He knew that Mr Zwarts had resigned from the union; he spoke of Ms Coombe and Ms Bowker to Mr Zwarts (whilst in the same breath saying he does not like to get involved in other people’s issues); and he knew Mr Zwarts had sent an email to the union in which Ms Bowker and Ms Coombe were mentioned. He was no innocent bystander.

[126] The conduct that Mr Kirkman engaged in is, unfortunately, not without consequences for many people. Ms Coombe and Mr Zwarts have not yet returned to the workplace (although I do not attribute this to the matters subject to this decision alone). The consequences for Mr Kirkman are difficult but are not such that I would change my decision.

[127] On the basis of my findings, I am satisfied that Mr Kirkman’s dismissal was not harsh, unjust or unreasonable. The decision to dismiss Mr Kirkman was proportionate, was supported by the evidence and was reasonable in all of the circumstances.

[128] I am, therefore, satisfied that Mr Kirkman’s dismissal was not unfair. Mr Kirkman’s application for relief from unfair dismissal is therefore dismissed. An order 35 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

F. Knowles of Counsel for Mr Kirkman.

E. Hawthorne for DP World Melbourne Limited.

Hearing details:

2016.

Melbourne:

November 7, 8.

Final written submissions:

Respondent: 23 November 2016.

Applicant: 25 November 2016.

 1   Exhibit A1, attachment MK-5.

 2   [2014] FCA 1321.

 3   Bowker, Coombe and Zwarts v DP World Melbourne Limited T/A DP World; The Maritime Union of Australia, Victorian Branch and Others, [2015] FWC 7312 at paragraphs [15] and [107].

 4   Ibid at paragraph [5].

 5   Exhibit A1, paragraph 8.

 6   Ibid.

 7   Transcript PN1252.

 8   Exhibit R6, attachment GPM-5.

 9   Exhibit A1, paragraph 8.

 10   Transcript PN 632.

 11   Transcript PN632.

 12   Maritime Union of Australia v DP World Melbourne Ltd, [2014] FCA 1321.

 13   Exhibit A8.

 14   Exhibit R4.

 15   Transcript PN994.

 16   Transcript PN239.

 17   Transcript PN537.

 18   Exhibit R5, attachment SAJ-3.

 19   Exhibit R5, attachment SAJ-2. The DP World Code of Conduct is set out in the DP World Employee Handbook 2013. Note that this is the Employee Handbook in place at the time of the incidents subject to the allegations.

 20   Exhibit A1, attachment MK-6.

 21   [2016] FWC 7312 at [15] and [107].

 22   Discrimination, Harassment, Bullying and Freedom of Association Policy, at 3.1.

 23   Transcript PN113.

 24   Transcript PN431.

 25   Transcript PN632

 26   AE893717.

 27   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at p.373.

 28   Exhibit A1, attachment MK-5.

 29   File Note of Meeting on 30 June 2014 regarding Investigation with David Gunzberg of DGHR Services and Mark Kirkman, employee of DP World and Fiona Knowles of counsel as support person.

 30   PR931440.

 31   Bowker, Coombe and Zwarts v DP World Melbourne Limited T/A DP World; The Maritime Union of Australia, Victorian Branch and Others, [2015] FWC 7312.

 32   Ibid at paragraph [21].

 33   [2014] FCA 1321.

 34   Ibid at paragraph [156].

 35   PR588942.

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