[2017] FWC 679
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ken Ingrey
v
BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance
(U2016/3271)

COMMISSIONER HUNT

BRISBANE, 1 MARCH 2017

Application for relief from unfair dismissal.

Introduction

[1] Mr Ken Ingrey has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by BHP Coal Pty Ltd (BHP).

[2] Mr Ingrey commenced employment with BHP on 24 January 1989 and was dismissed on 4 July 2016. He was employed as a Boilermaker at the Saraji Coal Mine (the Mine). He had been employed for a period of 27 years.

[3] It is not contested that Mr Ingrey is a person protected from unfair dismissal.

Hearing

[4] Both parties were granted leave pursuant to s.596 of the Act to be legally represented at the hearing. Mr Ingrey was represented by Mr Charles Massey of Counsel, instructed by Hall Payne Lawyers. BHP was represented by Mr John Snaden of Counsel, instructed by Herbert Smith Freehills.

[5] The application was heard before me on 5, 6, 7 and 8 December 2016 in Mackay.

[6] The following witnesses gave evidence for Mr Ingrey, or if they were not required for cross-examination, their witness statement was admitted into evidence:

[7] The following witnesses gave evidence for BHP:

Overview of Applicant’s case

Background

[8] It was submitted that prior to 2012, that being a period of 23 years in BHP’s employment, Mr Ingrey had not ever been formally disciplined. In 2011 at his annual review, Mr Peter McDonnell, Supervisor gave Mr Ingrey the highest possible performance rating. Mr Ingrey reported that he ‘got on well’ with Mr McDonnell.

[9] Mr Ingrey had participated in numerous Individual Development & Performance Reviews (IDPR) since 2005 when the IDPR process was introduced. Prior to 2013, if an employee considered the assessment and score given to them was unfair, it could be reviewed by the Department Manager and the General Manager. Since 2013 the process has been that the Superintendent of the relevant department reviewed the Supervisor’s score before the score was allocated to the employee. 1

[10] In May 2012, Mr Ingrey was involved in a dispute with his supervisor, Mr Michael Sherlock as to the performance of Mr Ingrey’s duties as an employee representative. It was alleged Mr Ingrey raised his voice to Mr Sherlock, which was denied by Mr Ingrey. In November 2012 Mr Ingrey was issued with a Step Two formal warning.

[11] The CFMEU on behalf of Mr Ingrey commenced a claim against BHP alleging he had been subject to adverse action because he had sought to exercise a workplace right to act as an employee representative. A conciliation conference was held by the Commission in May 2013, however the application was not pursued beyond the conciliation.

[12] At around the same time Mr Ingrey was involved in the issue above with Mr Sherlock, his IDPR for 2012 was undertaken. Mr Ingrey received an overall rating of 3, which at the time meant he had been scored as ‘generally satisfactory performance’. He considered this had been the first time he had been scored below a satisfactory level.

[13] It is Mr Ingrey’s evidence that at around this time his relationship with Mr Sherlock deteriorated.

[14] Relevant to the 2013 IDPR undertaken in July 2013, Mr Sherlock had pre-populated some of the supervisor comments within the document. Each of the criteria was discussed between Mr Sherlock and Mr Ingrey, and the pair largely disputed each other’s position. Mr Sherlock informed Mr Ingrey he would be rating him either the lowest or second lowest rating, however before he did he would discuss it with his Superintendent.

[15] In August 2013, Mr Ingrey notified a dispute on the basis that the 2012 enterprise agreement relevant to the Mine did not allow a Supervisor to discuss with another person not party to the IDPR discussion what rating should be given to an employee. It was Mr Ingrey’s understanding that it was ultimately determined that ratings in IDPR discussions could not be changed after the close of each respective discussion. Accordingly, since Mr Sherlock had not allocated a rating to Mr Ingrey at the close of the meeting, Mr Ingrey would not be allocated with an IDPR rating for 2013.

[16] On 7 December 2013, Mr Sherlock informed Mr Ingrey he would be put through a Performance Improvement Plan (PIP) and had been rated the lowest rating in the IDPR for 2013. Mr Ingrey notified a dispute in relation to this. By February 2014 the dispute had been resolved concluding Mr Ingrey had not been given a rating in 2013 and he would not be put onto a performance improvement plan.

[17] Some contention arose out of Mr Ingrey’s use of a software programme called ‘1SAP’, used to allocate work and plan maintenance. Mr Ingrey was not very proficient at the use of it. He was provided with basic training in September 2012. He then did further training in March 2013. It is his evidence he was not directed to use 1SAP but was encouraged to. Further training was provided in February 2014 however it was very basic; the trainer showed him how to log on to the system and perform time confirmations. 2

IDPR process – 2014

[18] On 27 June 2014, the CFMEU lodged a dispute in relation to the IDPR process.

[19] On 23 July 2014, Mr Sherlock announced in front of around 35 crew and contractors that he would be performing IDPR’s that day and said to Mr Ingrey, “You’ll be first Ken – we’ll start with you.”

[20] Mr Ingrey considered he was being made an example by Mr Sherlock. 3 At the commencement of the meeting Mr Ingrey alleged that Mr Sherlock said to him, “You got away with it last time and you won’t get away with it this time. You’re not going to like it.”

[21] Mr Sherlock allocated Mr Ingrey the lowest possible rating, that being a 1. He informed Mr Ingrey he would be put on a performance improvement plan and the following concerns needed to be addressed:

[22] Mr Ingrey’s evidence is that from July 2014, Mr Sherlock would not allocate him work on scheduled maintenance days, constituting approximately 95% of the days that he worked. Mr Ingrey was left in the field maintenance drill shed performing hot work repairs. He held the view his skills were diminishing over time, and the area in which he worked became known as “Ken’s Corner”. This continued until February 2015.

[23] From September 2014 to April 2015, Mr Ingrey was party to various disputes with BHP including about the IDPR and the performance improvement process. He considered that his feedback in meetings was not being taken into account and outcomes were determined before they were discussed with him. He was concerned he was not sufficiently trained in the use of 1SAP, but was being criticized for his failure to properly use the system.

[24] The various disputes were escalated to the Commission and heard before Deputy President Asbury. The disputes were settled on a confidential basis between the parties, however during the hearing of the matter before me the terms of the settlement were revealed by Mr Ingrey and are no longer confidential. The terms were, inter alia:

[25] Mr Ingrey was absent from work for a lengthy period in 2015 until his return on 2 December 2015. Mr Ingrey was absent due to various reasons including personal illness and took a mixture of annual leave, personal leave and long service leave. 4

[26] He resumed work on 2 December 2015 and on 7 December 2015 had a meeting with Mr Busk, his new supervisor, together with Ms Down to discuss the commencement of a six month PIP pursuant to the settlement that had been reached between the parties. Mr Brodsky attended the meeting as his employee representative. The PIP provided to Mr Ingrey was in the following terms:

Area(s) for

Improvement

Employee Actions Required

Timeframe

Expected Results

(note omitted)

Support

Respect

- Ensure that all interactions with other employees, contractors and supervisors are handled professionally and courteously. This includes using appropriate language (not swearing or profanity), being honest and transparent in all communications.
- Show respect at all times to others in both private and public settings by treating everyone that you come in contact with care and courtesy, even in difficult situations.
- A particular focus is required on your dealings with supervisors and management. You must be professional in these dealings and find a way to positively interact with management that is courteous and respectful.
- Actively seek out feedback for how you are impacting others and how you are doing your job. The feedback can include both the good and negative things you are doing and saying.
- Act on this feedback by continuing to do what is positive and changing what is negative.

Immediate Action -Daily

- All interactions with employees at all levels within the business are professional and respectful
- Demonstrating change through the implementation of improvement suggestions and acceptance of performance feedback by your Supervisor.

Coaching from

Supervisor and

feedback from

the team and

others at Saraji

on progress

Showing initiative

- When a task is assigned to you, ensure you have all of the tools required for that job.
- When asked to complete a piece of work, be clear on what's required and work with a sense of urgency to complete the task in the time allocated.
- Use your experience to think ahead and anticipate issues that you may face when being allocated a task.

Immediate Action -Daily

- All tasks completed within timeframe
- Issues are considered and solutions are implemented on the job

Coaching from

Supervisor and feedback from the team and others at Saraji on progress

Problem Solving

- When coming up against a problem in your day to day work, apply problem solving skills to solve the problem. Identify, source and utilise the resources that are available to you to seek out alternative ways to complete tasks when faced with a barrier or issue.
- When faced with a problem you can't solve on your own, talk to your supervisor about the problem and some solutions that you can think of.
- When confronting similar problems, use previous solutions that have worked to apply to the new problem.
- Overcome issues within the scope of your role by working proactively with others.

Immediate Action -Daily

- Demonstrate utilisation of problem solving

Coaching from

Supervisor and feedback from the team and others at Saraji on progress

1SAP

- Utilise 1SAP system as it is designed to manage and report on completed tasks e.g. including the input of time confirmations, notifications (including hazard reporting) and subsequent notifications
- Practice 1SAP tasks every shift to ensure 1SAP competency others at Saraji increases.

Immediate Action -Daily

- All 1SAP requirements fulfilled within the daily schedule

Coaching from

Supervisor and feedback from the team and others at Saraji on progress

Task Completion

- When assigned a task, work out the fastest way to complete the task that is safe and produces a satisfactory result (as determined by your Supervisor).
- Don't wait to be told how to do a job, approach it with a sense of urgency that is safe and efficient.

Immediate Action -Daily

- Working proactively and with urgency

Coaching from

Supervisor and feedback from the team and others at Saraji on progress

Performance

- Present to work on your rostered days, on time and prepared to work.
- Provide regular updates to your supervisor on allocated tasks and expected completion.
- If unable to deliver, proactively gain agreement from your supervisor on new timeframe.

Immediate Action -Daily

- Utilise all the time available to you within a shift on works assigned to you by your Supervisor, or on wor


ks approved by the Supervisor.
- Provide regular examples to your supervisor on new timeframes. Supervisor of where you have overcome issues and provided solutions

Coaching from

Supervisor and

feedback from

the team on

progress

[27] As part of the performance improvement plan Mr Ingrey was to have monthly reviews. Despite not being his daily supervisor, the first four reviews were conducted by Mr Busk. The last two reviews were conducted by Mr Keith Blaney, Supervisor.

[28] The six identifiable areas for consideration under the PIP were:

[29] It is Mr Ingrey’s evidence that at no stage did anyone from BHP say that to successfully complete the PIP he was required to provide BHP with examples of his good conduct or improvement in all areas of the PIP. Mr Ingrey stated, “I was not told that I had to provide examples in order to successfully complete the PIP. I was told it was a possibility for me to provide examples, and understood that this would occur at the PIP reviews.”  5

[30] In cross-examination, Mr Brodsky of the CFMEU agreed that during the meeting Ms Down had been making contemporaneous notes of the discussion on a laptop. He agreed that the notes shown to the Commission during the first day of the hearing and admitted into evidence were an accurate record of the matters discussed. He described them as ‘nearly word for word’. 6

[31] In cross-examination, Mr Brodsky agreed that Mr Busk had asked Mr Ingrey in respect of each of the six identifiable areas if he had any further questions after going through each of them. Mr Brodsky agreed the following exchange occurred: 7

Bucket work incident

[32] On 8 December 2015, one day after having the PIP discussion, Mr Ingrey was directed by Mr Brad Johnson, Maintenance Supervisor, to assist with rope rigging and bucket work on a dragline. Later that day, Mr Brad Ensby, Contract Maintenance Supervisor approached him and asked him why he wasn’t working on the inside of the machine with the contract workers. Mr Ingrey answered that he was working on the outside and he didn’t wish to be deskilled. When approached later, he explained to Mr Ensby that he had informed Mr Johnson he was not able to explain the rope work process on the inside to the new contractors.

[33] When Mr Johnson returned to see Mr Ingrey, Mr Johnson instructed him to work on the inside of the bucket, to which Mr Ingrey suggested he was not familiar with the task and suggested another person could assist with the job. Mr Johnson denied the request and directed Mr Ingrey to do the task. It is his evidence he ‘agreed’ and he set out to do what he could to assist.

[34] Later that day Mr Ingrey and Mr Busk had a discussion where Mr Ingrey maintained he shouldn’t have been doing the work he was asked to do without further training. Mr Busk maintained Mr Ingrey was being up-skilled, not deskilled as alleged by Mr Ingrey.

Seeking leave for Blackwater EBA negotiations

[35] On 15 December 2015, Mr Ingrey emailed Mr Busk seeking approval to attend EBA negotiations at the Blackwater mine on 17 December 2015.

[36] On 16 December 2015 he spoke with Mr Busk who informed him he did not have approval to attend the Blackwater EBA negotiations as only Blackwater mine employees could attend.

First PIP review meeting – January 2016

[37] The first PIP review was held between Mr Ingrey and Mr Busk on 7 January 2016. Mr Ingrey expected a positive review as he considered nobody had raised any negative issues with him. Mr Ingrey received the following feedback for each area identified for improvement:

[38] Mr Ingrey was concerned with the structures that had been put in place in relation to his supervisors. Mr Ingrey contended that Mr Busk had not been observing him perform work on a regular basis, had not allocated any tasks or workers to him and was someone who he did not generally have much to do with at work. The two supervisors he had normally been reporting to, Mr Ensby and Mr Johnson were not noted on the form and it was Mr Ingrey’s contention that neither of those supervisors had sought to discuss his performance generally or provide him with any opportunity for feedback on their views. 9

[39] It is Mr Ingrey’s evidence that he did not understand how it was he was not meeting BHP’s expectations. Other than not providing examples, he did not know nor did Mr Busk tell him what he was doing wrong.

[40] On 15 January 2016, Mr Ingrey’s solicitors wrote to BHP’s solicitors with concerns Mr Ingrey held in relation to Mr Busk not supervising his work, together with other issues. The letter received in response stated that Mr Busk was being informed by relevant supervisors as to the performance of Mr Ingrey’s work.

Boom handrail repair

[41] On 19 January 2016, Mr Blaney allocated work to Mr Ingrey to repair a boom on a dragline. He was told that a spotter would be required, but some of the work could be done without a spotter. Mr Ingrey arrived at the dragline at approximately 7.15am and inspected the job to be performed.

[42] Mr Ingrey held concerns the job could not be performed safely. He was concerned the job would be done at a 60 degree angle requiring the use of both hands on tools.

[43] Mr Ingrey had the following conversation with Mr Scott Duffy, Supervisor, with Mr Mark Glew present:

[44] It is Mr Ingrey’s evidence the tooling weighed approximately 18 kilograms without the extension lead and water bottle. He took a photo of scales weighing the tooling. 10

[45] Mr Brendan Paton was allocated to assist Mr Ingrey with the task. Mr Paton protested to Mr Blaney that the tooling and equipment was too heavy and a travel tower should be used to make the job safer. Mr Blaney disagreed, and said “No, you’re inside the handrail.” Mr Paton replied, “Bullshit mate, how is it safe carrying this tooling gear up the boom?” 11

[46] Together Mr Ingrey and Mr Paton completed the task. Mr Ingrey worked the upper side of the handrail and Mr Paton the lower side so that neither of them was exposed to an open edge. During the hearing I inquired as to how wide a gap the exposed edge was and was informed it was a gap of approximately 50 centimetres.

[47] A conversation was later held between Mr Ingrey, Mr Blaney and Mr Paton. Mr Ingrey agreed that with the assistance of Mr Paton, with him working on the lower side, neither of them were exposed to an open edge. Mr Paton reiterated to Mr Blaney that the work could not have been done safely without a second person.

[48] It is Mr Paterson’s evidence that the instruction originally given to Mr Ingrey to perform the work in his own was ‘unusual’. Mr Paterson would have asked for the use of a travel tower if he had been asked to perform this work alone. 12

Annual leave request late at night

[49] Late at night on 24 January 2016, Mr Ingrey was at home when his air conditioning failed. He held concerns he would not be able to get to sleep given the extreme temperature, and he contemplated it might take some days to fix the unit. He was concerned he would be fatigued when due to commence work on 27 January 2016.

[50] At 11.00pm he sent an email to Mr Busk requesting annual leave for 27 and 28 January 2016 and attached a relevant form.

[51] It is Mr Ingrey’s evidence he did not expect Mr Busk to read the email immediately, but considered he would read it the next morning on 25 January, and therefore he would have given the required 48 hours’ notice of a request for annual leave to commence on 27 January.

[52] Emails were exchanged between Mr Busk and Mr Ingrey on 25 and 26 January 2016. Mr Busk maintained a position that Mr Ingrey should have contacted Mr Busk just prior to Mr Busk commencing his shift on 25 January 2016 to discuss. Mr Busk also stated that if fatigue was an issue, Mr Ingrey could request a camp room for the night of 26 January 2016 so that he could start work on 27 January 2016 fresh.

[53] During the hearing, Mr Ingrey was asked why he didn’t take up the camp option. He answered that he did not take up that suggestion because he and his wife would be separated and they weren’t in a position to be separated as they are married. 13

Second PIP review – 8 February 2016

[54] During the second PIP review meeting, Mr Busk raised with Mr Ingrey the concerns he had as to why Mr Ingrey had applied for leave to attend the Blackwater EBA negotiations. Mr Ingrey responded that he had been informed by Mr Shaun McKenzie, BHP HR that he was a bargaining representative and he understood he was encouraged to apply to the attend the negotiations.

[55] The issue regarding the email sent late at night requesting annual leave for 27 and 28 January 2016 was also discussed.

[56] Mr Busk also raised the handrail boom issue and stated it was not an example of Mr Ingrey showing initiative. Mr Ingrey gave an account as to why he protested the initial method of work.

[57] Mr Busk advised Mr Ingrey that he was slow when entering information into 1SAP and he was entering too much information. Mr Ingrey requested a history of his data and work orders, together with a template as to best practice. Mr Busk said he would provide this information when Mr Ingrey was next rostered on, and examples could then be provided.

[58] A number of other issues were discussed. It is Mr Ingrey’s evidence he did not raise his voice, nor was he aggressive or disrespectful to Mr Busk in any way.

[59] Mr Busk refutes Mr Ingrey’s contention that Mr Ingrey was trying to provide feedback ‘in a respectful manner’. Mr Busk’s observation was that Mr Ingrey was taking his ‘usual argumentative approach’ and was determined to debate every point that was raised in the review and that even basic factual assertions were disputed by Mr Ingrey. 14

[60] It is Mr Ingrey’s contention that other than the annual leave application, the boom handle issue and the alleged ‘slowness’ with 1SAP, Mr Busk did not provide examples of how his conduct had been below BHP’s expectations. Aside from telling Mr Ingrey that improvement was required, it is contended that Mr Busk did not explain to him what the improvement would look like. Further, he did not understand how it was that he was to specifically improve his performance as required by Mr Busk. Mr Ingrey gave the following examples in relation to the specific areas in the PIP:

Incident in pre-start room – 10 February 2016

[61] During the pre-start of employees and contractors on 10 February 2016 there were approximately 70 coal mine workers in the pre-start room. 16

[62] It is Mr Ingrey’s evidence it was very noisy, and he waited for Mr Busk to finish speaking to another person before he approached him and said, “When can we go through the info that related to the PIP review on the 8 February 2016?”

[63] It is uncontested there was a conversation between Mr Ingrey and Mr Busk about whether Mr Busk had obtained the information Mr Ingrey was seeking. It is Mr Ingrey’s evidence the conversation continued as follows:

[64] Following this conversation, both men moved outside of the pre-start room, where Mr Busk informed Mr Ingrey he was directed to sit in the crib room.

[65] At approximately 7.05am, Mr Busk and Mr Blaney met with Mr Ingrey in the crib room. The following was said:

[66] At approximately 10.00am, Mr Busk returned to the crib room to advise he would be continuing with the investigation, and then again at 12.30pm he advised Mr Ingrey he would be required to have a discussion at 2.00pm. Mr Ingrey contacted Mr Brad Crompton to attend as his employee representative.

[67] Mr Ingrey stated he was distressed having been stood aside from work and placed in the crib room all day.

[68] The meeting was convened by Mr Ryan Ferricks. Mr Busk stated he had collected information and Mr Ingrey had been disrespectful to him, had become aggressive, had raised his voice and had not obeyed a directive. After a break to consult with Mr Crompton, Mr Ingrey returned and stated that it was not he who had been aggressive, but Mr Busk.

[69] It is Mr Ingrey’s evidence that Mr Busk began to grin and smile, shrugging his shoulders and appearing to be starting to laugh. Mr Crompton said during the meeting and after an adjournment, “You are actually being disrespectful to Ken, you keep asking him questions, he is trying to explain, but you are interrupting him and laughing at him like you are not taking him seriously.” 19

[70] It is Mr Ferricks’ evidence that he discussed with Mr Busk during a break in the meeting the concern raised about Mr Busk ‘smiling’ or appearing he was about to laugh. Mr Busk explained to Mr Ferricks his smile was a result of being incredulous about the ‘lies’ Mr Ingrey was telling during the meeting. Mr Busk acknowledged his smile was inappropriate and apologised to Mr Ingrey on resumption of the meeting. 20

[71] Mr Crompton became further upset with Mr Busk’s conduct at the meeting. Mr Crompton then said, “You are in a coal mine mate. Lots of people raise their voice, swear and get passionate. Look at this, I am raising my voice now, does that offend you? You are pretty easily offended.” 21

[72] Mr Ferricks stated that there were other witnesses who observed Mr Ingrey’s behaviour towards Mr Bucks, but would not disclose who they were. Mr Ingrey was given an opportunity to say why it was he approached Mr Busk and what it was he was seeking. Mr Ferricks indicated the investigation would continue.

[73] It is Mr Ingrey’s evidence Mr Ferricks stated that Mr Busk should provide the 1SAP information to Mr Ingrey.

Raised voices in Mr Busk’s office – 11 February 2016

[74] The following day, at around 6.40am, Mr Ingrey went to Mr Busk’s office to obtain the 1SAP history information that he was seeking. Mr Busk stated that he had a busy day ahead with meetings, and he then printed from his computer.

[75] Mr Busk collected the printing, returned to his office and then used a ruler on the document to tear off the BHP letterhead details. Mr Ingrey protested Mr Busk’s actions in removing the letterhead from the document.

[76] It is Mr Ingrey’s evidence the following conversation occurred:

[77] It is Mr Ferricks’ evidence he could hear yelling, and he walked down the hallway towards Mr Busk’s office. He observed Mr Ingrey standing in the office speaking aggressively towards Mr Busk. Upon Mr Ferricks attending the scene, Mr Ingrey stopped yelling and walked away. 23 In cross-examination it was put to Mr Ferricks that he hadn’t included in his notes that Mr Ingrey was ‘yelling’. Mr Ferricks’ evidence is that where he wrote ‘aggressive’ he meant ‘yelling’.24

Written warning issued – 11 February 2016

[78] A meeting was held several hours after the above incident at approximately 10.00am. Mr Ingrey was issued with a written warning stating:

[79] It is Mr Ferricks’ evidence he considered BHP was justified in issuing to Mr Ingrey a written warning on the basis of his conduct on 8, 10 and 11 February 2016.

Mr Ingrey’s concerns with PIP process

[80] On 15 February 2016, Mr Ingrey wrote to Mr Busk setting out numerous concerns regarding the PIP process. On 18 February 2016, Mr Ingrey wrote to Mr Ferricks outlining his concerns with the PIP process, denying that he had argued with Mr Busk during the February PIP meeting, but agreeing he had raised concerns. He stated he had raised those concerns in a respectful manner. He also disputed that he had raised his voice when he approached Mr Busk in the pre-start room on 10 February 2016.

[81] Mr Ingrey proposed that he defer his dispute as to having been issued with a written warning until such time as the PIP process had been concluded. He proposed that this would allow him to focus on working constructively with his supervisors while preserving his legal rights.

[82] On 29 February 2016, Mr Busk responded to Mr Ingrey’s letter, informing him that the two PIP review meetings that had been conducted had lasted for approximately 45-50 minutes each. Where positive feedback is sought as to good work performed by Mr Ingrey, he is encouraged to ask team mates to address Mr Busk on Mr Ingrey’s good work.

[83] Mr Busk stated that he recognised Mr Ingrey might not agree with all of Mr Busk’s feedback, but it was critical to his performance at the required level that he take on board Mr Busk’s feedback.

[84] On 2 March 2016, Mr Ferricks responded to Mr Ingrey with respect to the concession to hold over his dispute as to the issuing of the warning letter. Mr Ferricks responded:

Third PIP review – 14 March 2016

[85] At the third PIP review meeting on 14 March 2016, Mr Ingrey was issued with the review and informed the outcome was unsatisfactory. The meeting went for 35 minutes 27 and Mr Busk produced a document detailing the feedback provided to Mr Ingrey:

[86] With regard to ‘Respect’, Mr Busk raised with Mr Ingrey the concerns he had during the pre-start meeting of 10 February 2016. Mr Ingrey repeated his denial that he had raised his voice and had been aggressive.

[87] As to 1SAP, Mr Ingrey maintained that he was confused as Mr Johnson and Mr Ensby had advised him to include all information from the time he put his tools on the truck. He had also been hearing reports that he was doing a good job.

[88] Mr Busk stated there were no examples of Mr Ingrey ‘Showing Initiative’. Mr Ingrey stated he found this confusing as he didn’t think it was up to him to come up with examples. He provided a number of examples where he considered he was doing a good job.

[89] With regard to ‘Problem Solving’ and ‘Task Completion’, Mr Ingrey responded that he had identified a good example, but the document still nominated that further improvement was necessary. Mr Busk had not provided any specific examples of Mr Ingrey failing to problem solve or complete tasks.

[90] With regard to ‘Performance’, Mr Busk nominated the issue of Mrs Ingrey calling early one morning to advise Mr Ingrey was too ill to attend for work, together with the leave form issue. Mr Ingrey replied that he had asked his wife to call on his behalf as he had kept his wife awake for most of the night. Mr Ingrey stated her didn’t want her falling back to sleep, sleeping through her alarm and failing to nominate BHP in time.

[91] Mr Ingrey considered that other than the 10 February 2016 incident with Mr Busk, the sick leave issue, vehicle allocation and alleged 1SAP issues, Mr Busk had not provided him with any specifics as to how his performance was falling below BHP’s expectations. It was unclear to him what he had to do to improve his performance.

Fourth PIP review meeting – 14 April 2016

[92] The fourth PIP review meeting was held on 14 April 2016. Mr Ingrey was confident nothing had been raised with him since the third PIP review meeting.

[93] Mr Busk had pre-populated the document he was reading from. As to ‘Initiative’, Mr Busk said there were no examples. Mr Ingrey provided some examples, and Mr Busk said they were good examples and he should continue to share these examples so Mr Busk can inform HR.

[94] Mr Busk spoke encouragingly about improvements in 1SAP. Mr Ingrey responded, “Since I had that discussion with you and you advised me about what I have to include in the info I have done that, as before I was advised to include everything from time I left prestart room so I considered what you said and that’s all I do now, what you want I believe.”

[95] With respect to ‘Performance’, Mr Busk stated Mr Ingrey needed to pay attention to requests for leave, as he had applied for EBA negotiation leave for Blackwater on 20 April 2016. Mr Ingrey stated he did not seek leave for Blackwater negotiations as he knew it would be refused. Mr Busk showed him the form nominating ‘Moranbah’, but the date requested was for the Blackwater discussions. Mr Busk said, “You have to pay more attention this takes up a lot of my time going through your leave forms.”

[96] Mr Ingrey considered the meeting had been positive and he was hopeful of achieving a positive rating. Later that day he saw Mr Busk who provided the completed copy of the review and informed him it was an unsatisfactory rating, with improvement required in all areas. Mr Ingrey was disappointed with the rating.

Mr Blaney – Supervisor

[97] On 20 April 2016, Mr Busk informed Mr Ingrey he would need some time off work to care for a family member and Mr Blaney would now be his supervisor.

[98] It is Mr Ingrey’s evidence he helped implement a very useful solution that same day in Mr Blaney’s presence to do with dust and bucket loads. He provided other examples of good performance of demonstration of initiative.

[99] By late April 2016, Mr Ingrey was not sure as to who was his daily supervisor as Mr Blaney had taken some time off work or was on different shifts.

[100] On 16 May 2016, Mr Ingrey’s solicitors wrote to BHP’s solicitors asking who his supervisor was in Mr Busk’s absence. On 17 May 2016, a response was received nominating Mr Blaney as Mr Ingrey’s supervisor and authorised person to undertake the PIP review.

Fifth PIP review meeting – 18 May 2016

[101] It is Mr Ingrey’s evidence that Mr Blaney conceded at the commencement of the fifth PIP review meeting on 18 May 2016 that he was inexperienced in the process and it was his first time in conducting a review.

[102] Mr Ingrey provided a large number of examples to Mr Blaney of good work performed by him, including demonstration of initiative. Mr Blaney wrote down parts of what Mr Ingrey said, however Mr Ingrey went over some parts of it to ensure it was being written down correctly. Mr Blaney indicated he would type it in to the document and he would speak with Mr Ferricks before coming back to Mr Ingrey.

[103] Later that evening, Mr Ingrey met with Mr Blaney to obtain his rating and a copy of the PIP. It was an unsatisfactory rating and the following feedback was provided to Mr Ingrey:

[104] It is Mr Ingrey’s evidence that he was feeling ‘hopeless’, as he considered that it didn’t matter what he said or did as the result would be the same.

Door seal incident – 31 May 2016

[105] On 31 May 2016, Mr Ingrey was working with Mr Paton to fit a door seal on a door in the machine house of a dragline. Mr Ingrey was certain that the door should not be sealed with a stick on rubber as it was an inferior part and that the job should not have started until the correct seal had arrived. Mr Johnson approached Mr Ingrey and Mr Paton and a conversation was held between Mr Ingrey and Mr Johnson.

[106] It is Mr Johnson’s evidence that when he inspected the work that had been performed, he did not consider it satisfactory. He stated the door would not be able to seal the area it was intended to. Mr Ingrey continued to argue with Mr Johnson, repeatedly interrupting him. Mr Johnson eventually ‘gave up’ and instructed Mr Ingrey to return the door to its original position. He decided it would be easier to “abandon the task and ask another employee to complete the work on another maintenance day”. 30

[107] It is Mr Johnson’s evidence that the incident with Mr Ingrey was the ‘worst interaction’ he had ever experienced with an employee in his career. 31 While disagreements in the workplace occur, it is Mr Johnson’s evidence those conversations usually end in an agreed solution and a productive result. On a subsequent maintenance day another worker completed the task.

[108] Mr Ingrey’s evidence is that he did not raise his voice during the conversation with Mr Johnson. He concedes he may have interrupted Mr Johnson at one point during the conversation, but submitted this is a common occurrence at the Mine when people are debating an issue. It was Mr Ingrey’s intention to explain his view, based on his experience as to how the task should be performed.

[109] Much later in the day Mr Johnson approached Mr Ingrey and asked how the job could be fixed. Mr Ingrey replied that it was too late in the shift to now fix it, and he had done what Mr Johnson had wanted him to do earlier.

[110] It is Mr Ingrey’s evidence he held a conversation with Mr Blaney on 1 June 2016, where Mr Blaney implored Mr Ingrey not to put pressure on Mr Johnson, yet Mr Blaney understood the task Mr Ingrey was trying to perform and he was probably correct in the application of his work. Mr Ingrey repeated what he was trying to have Mr Johnson understand, and Mr Blaney reminded him that Mr Johnson had a lot on his mind.

[111] Mr Ingrey suggested the work should not have been performed until the correct seal was available at the Mine.

Donga incident – 6 and 7 June 2016

[112] On 6 June 2016, Mr Ingrey was informed he would be performing work using a donga tool. The tool weighs approximately 150 kilograms and has a handle on each side. It is used as a battering ram and is suspended from a Franna crane. Two workers run a short distance holding on to each side of the donga until it cannot go any further, and the workers then release it so that it swings as a pendulum and hits the required object at great force.

[113] Mr Ingrey informed Mr Johnson he held objections to the use of the donga based on a review undertaken approximately five years earlier. Mr Ingrey nominated Mr Col Cartwright having been seriously injured when a crow bar tip cut his neck open and he was flown to hospital by helicopter. Mr Ingrey campaigned to Mr Johnson that the donga was also found to be an unsafe tool.

[114] Mr Ingrey and Mr Johnson then searched Mr Ingrey’s locker to try and find paperwork he considered could demonstrate his concern. When it could not be located, Mr Johnson said he would help create a JSA for the use of the donga. Mr Ingrey was informed that Mr Mike Henry BMA Asset President was visiting site the next day so all paperwork would need to be in order.

[115] On 7 June 2016, Mr Ingrey and members of his crew attended the dragline and were in place early. The task required was to remove the rope in the dragline socket and insert new rope. There are a number of methods to perform this work.

[116] Mr Johnson stated he wanted a JSA performed solely for the use of a donga to complete the task. Mr Ingrey had not done a JSA solely for the purposes of consideration of the safe use of a donga.

[117] The risk assessment for the donga was done by Mr Ben Walsh. Mr Ingrey read the assessment and refused to consent to the task outlined in the JSA. It is his evidence it was the first time since 2011 he had been asked to sign on to a risk assessment for the use of a donga. He held the following concerns:

[118] It is Mr Ingrey’s evidence that Mr Johnson informed Mr Ingrey that he was removing him from the work area for his own safety. Mr Ingrey volunteered there were many other aspects of the task that he could carry out without using the donga. Mr Johnson’s evidence is that he asked Mr Ingrey if there was a way the crew could rectify the donga work so that he would feel safe to use the tool. Mr Ingrey said he could not offer a solution or alternative, and Mr Johnson considered he had no alternative other than to reassign him to other work at the Mine.

[119] Mr Ingrey held concerns the use of the donga was going to be signed off in his absence, despite the concerns he held. It is Mr Ingrey’s contention that if an employee does not sign off on a risk assessment, a process should be undertaken to try and address the concerns of that employee and reach consensus.

[120] Mr Ingrey reported his concerns to Mr Steve Woods, Queensland District Mining Industry Check Inspector. Mr Woods sent two Mine Record Entries to BHP in relation to the issue.

[121] During the hearing I questioned Mr Ingrey as to when he had most recently used the donga tool. Mr Ingrey answered that he had used the donga tool approximately six times between March and May 2016. 32

Letter to Mr Blaney regarding PIP review

[122] On 8 June 2016, Mr Ingrey sent Mr Blaney a letter to address concerns he had with the fifth PIP review undertaken in May.

[123] On 15 June 2016, while Mr Ingrey was loading tools onto a vehicle in the presence of Mr Paton, Mr Blaney approached him and said, “This is my response to your letter.” Mr Ingrey was surprised as he considered it a confidential matter. The following was said:

Ingrey: It doesn’t matter as your notes can be subpoenaed.’

[124] The letter from Mr Blaney is dated 9 June 2016, but it was not issued to Mr Ingrey until 15 June 2016. The letter informs Mr Ingrey that he would include the notes he had written from the meeting, and he reproduced a new PIP review, but Mr Ingrey should not expect that in future meetings. Mr Blaney stated it was Mr Ingrey’s responsibility to take his own notes at these kind of meetings.

[125] Mr Blaney responded that Mr Ingrey had not shown any new examples of finding a faster way to complete tasks safely and efficiently. The example used by Mr Ingrey to make a smooth and level pad for maintenance work is not a new issue, and something that is part of the ordinary method of work.

[126] The letter concludes:

[127] It is Mr Ingrey’s evidence that he did not intend to state the notes could be subpoenaed in manner that would be considered threatening.

Sixth PIP review meeting – 21 June 2016

[128] At the sixth PIP review meeting on 21 June 2016, Mr Ingrey attended with a support person, Mr Hamish Reid.

[129] Mr Blaney commenced the meeting by dealing with the issue of ‘Respect’. He referred to an incident on 21 April 2016 involving Mr Shane Herrigan and said Mr Ingrey had read out a comment in the crib room. Mr Ingrey attempted to respond, and Mr Blaney said for him not to interrupt him. Mr Ingrey said:

[130] Mr Blaney again said he was being interrupted. Mr Ingrey responded, “I thought you were looking for an answer. Last time you let me respond.”

[131] Mr Blaney then sought to discuss the issue regarding the door seal on 31 May 2016. It is Mr Ingrey’s evidence that he was trying to explain how Mr Johnson’s instructions would not work, and he felt Mr Johnson was not listening to his point of view. He said to Mr Blaney, “You could understand it, but he couldn’t. When you spoke to me the next day on the feedback you told me you understood what I was trying to put across and Brad didn’t get it and you said it is typical at Saraji you’ve got to do the job twice before the job is actually done right.”

[132] Mr Blaney then attempted to say something, and repeated that Mr Ingrey was interrupting him. A short adjournment was then convened, and on return the following conversation occurred:

[133] A further break was convened. When the meeting continued Mr Ingrey apologised to Mr Blaney for any offence as to what he had said on 15 June 2016 with respect to the suggestion the meeting had been recorded and in any event, the notes could be subpoenaed.

[134] Regarding ‘Showing Initiative’, Mr Blaney stated to Mr Ingrey that he had made a useful suggestion regarding the use of ‘hoist U bolts’, but Mr Blaney considered Mr Ingrey made the suggestion but then did not continue through to see how the idea could be implemented. Mr Ingrey responded that he felt Mr Blaney would be the one with authority to discuss the suggestion at the various meetings that Mr Blaney attends, but to which Mr Ingrey does not participate.

[135] Mr Reid again suggested a break in the meeting and the parties then returned to discuss ‘Problem Solving’. Mr Blaney referred to the June 2016 donga tool incident and stated that Mr Ingrey held concerns on the above date, but had used the tool in the previous six months.

[136] Mr Ingrey objected to having been removed by Mr Johnson from the task because he had not provided consensus to the task of producing a JSA specifically for the use of the donga. It is Mr Ingrey’s evidence Mr Blaney said, “I have no examples of you using your experience for problem solving in this period.” Mr Ingrey responded, “No you wouldn’t, Keith, ‘cause you are not always down there. Who do you ask? Why is it me who has to provide the examples when you’re doing the review on me?”

[137] Regarding ‘Task Completion’, Mr Blaney said no new examples had been demonstrated by Mr Ingrey. Mr Ingrey responded that he believed that he does the job in the fastest time possible with the tools that have been supplied to him. Mr Ingrey pointed out that he had recently been given a work order, and after obtaining all of the necessary tools, the job was then cancelled.

[138] As to improvements in the use of 1SAP, Mr Blaney stated Mr Ingrey had made small improvements. An issue regarding the input of a hazard was discussed. Following the discussion, Mr Blaney called a brief adjournment to the meeting, and when the parties reconvened, Mr Ingrey continued to provide a response to Mr Blaney’s concerns. Mr Ingrey then took out his hazard book and attempted to show Mr Blaney the contents of his hazard book. In a raised voice, Mr Blaney stated to Mr Ingrey, “You should have done more.”

[139] It is Mr Ingrey’s evidence he considered Mr Blaney was not listening to what he had to say. He then said, “I spoke to [name] and you do get a bit nasty, very, very nasty don’t you Keith?”

[140] Mr Ingrey later apologised for what he said regarding Mr Blaney having a tendency to be ‘very, very nasty’. It is his evidence it was said in the heat of the moment and he considered his employment was at risk.

[141] Regarding ‘Performance’, Mr Blaney advised Mr Ingrey that he worked well in the work group as a follower, but not as a constructive member of the team. Mr Ingrey stated that he considered himself no different to other members of the team, and raised one example where he considered he showed initiative on a suggested improvement to task.

[142] Mr Blaney informed Mr Ingrey he considered all six areas of the PIP required improvement. Mr Blaney then convened a break in the meeting to consider Mr Ingrey’s performance before he completed the document. He returned again to the meeting and said he would need to give Mr Ferricks a call. Approximately 3-4 minutes later Mr Blaney returned and asked Mr Ingrey to sign the 6 month PIP summary including the rating of unsatisfactory.

[143] Mr Ingrey stated he disagreed with the supervisor’s comments and the explanation given and the content of the PIP review and process. He signed his name and wrote ‘in attendance’.  34

[144] Mr Blaney then left and said he would speak with Mr Ferricks. He returned approximately 3-4 minutes later with a letter informing Mr Ingrey he was being stood down. It is Mr Reid’s evidence that Mr Ingrey was always going to fail the PIP and be stood down. He determined that because of the way the meeting was chaired by Mr Blaney and the fact Mr Ingrey’s responses were not being recorded.

[145] It is Mr Reid’s evidence that he was aware Mr Ferricks was getting married on this day and was not at work. He estimates the time Mr Blaney was out of the room supposedly to speak with Mr Ferricks was approximately 2-3 minutes. 35

[146] The meeting ended. Mr Ingrey stood to leave the meeting and he shook hands with Mr Blaney. While doing so he said, “Thank you. How long have you been in the industry for Keith?” It is Mr Ingrey’s evidence Mr Blaney said something under his breath, and Mr Ingrey repeated, “How long did you say?” Mr Blaney did not respond. 36

[147] The letter issued to Mr Ingrey is titled ‘Unsuccessful Completion of PIP’. The letter articulated that Mr Ingrey had received six consecutive unsatisfactory ratings for all six review periods. The company was now considering the next steps in relation to Mr Ingrey’s performance and ongoing employment. Mr Ingrey was stood down with pay and directed to attend a meeting the following day with an employee representative.

[148] At a meeting on 22 June 2016, Mr Ingrey was issued with a show cause letter. The letter detailed the PIP process that had been undertaken. A significant number of issues were particularised in the letter as concerns held by BHP. They include:

[149] The letter informed Mr Ingrey a consideration was being made to terminate his employment, and he was invited to provide a written response by 27 June 2016. An extension was later granted for a response to be provided by 28 June 2016. 37

[150] Mr Ingrey provided a seven page response to the show cause letter. I have had careful regard to the letter and it is not necessary to reproduce the response in full. Mr Ingrey stated he had attempted to constructively engage in the PIP process. He further said:

[151] Mr Ingrey implored BHP not to terminate his employment and cited a number of personal reasons why a termination would impact adversely on him and his family.

[152] On 4 July 2016, Mr Dodd issued to Mr Ingrey a termination letter. The letter provided substantive detail of Mr Ingrey’s show cause response.

[153] The conclusion reached by Mr Dodd was that Mr Ingrey had failed to meet the standards expected by BHP in relation to his performance, including that he had displayed conduct in breach of the BHP Billiton Code of Business Conduct and the Charter Values. The letter stated a large number of issues had been taken into consideration in reaching that decision, including Mr Ingrey’s show cause response, the unsuccessful completion of the PIP, his lengthy period of service, involvement in the local community and the financial impact Mr Ingrey might face if his employment was terminated.

[154] Mr Ingrey was dismissed on 4 July 2016 and was paid five weeks’ wages in lieu of notice.

[155] Mr Ingrey’s witness statement details his efforts to seek alternative employment and why he claims the decision to dismiss him was harsh when his financial considerations are taken into account together with his long period of service with BHP.

Outline of Applicant’s Closing Submissions

[156] Mr Ingrey argued that the poor performance BHP relied upon in its argument must be determined on the basis of the evidence in the proceedings. On this basis Mr Ingrey argued that BHP had failed to prove that Mr Ingrey’s poor performance was a valid reason for his termination.

[157] Mr Ingrey contended BHP was unable to provide direct evidence of alleged poor work quality or that Mr Ingrey was unable to complete tasks on time, despite BHP maintaining records of all jobs that were allocated.

[158] Mr Ingrey argued that BHP was unable to lead any direct evidence of nearly half of the issues raised with Mr Ingrey at the monthly review meetings, including two incidents that were contained in the show cause letter to Mr Ingrey.

[159] Mr Ingrey argued that BHP had not sufficiently warned him as to how his performance was substandard. Mr Ingrey maintained that BHP’s assertions of poor performance never rose above mere exhortations for Mr Ingrey to do better or that further improvement was required.

[160] It is argued that BHP failed to identify examples of poor performance, explain how the performance was not meeting the expected standard and provide instruction as to how Mr Ingrey could improve his performance in response.

[161] Mr Ingrey submitted that of all the witnesses BHP had called, only Mr Glew, Mr Johnston and to a lesser extent Mr Busk had the ability to give direct evidence of Mr Ingrey’s performance.

[162] Mr Ingrey argued BHP’s choice not to call Mr Blaney to give direct evidence about specific allegations of poor performance, as the supervisor who determined the failure of the PIP and stood Mr Ingrey down, created an inference that Mr Blaney’s evidence did not support BHP’s assertions. Mr Ingrey further contended his evidence should be accepted over the document records tendered by BHP to reflect Mr Blaney’s position.

Applicant’s submissions on s.387(a) – valid reason

[163] It was submitted for Mr Ingrey that mere assertions by BHP about (for example) the characterisation it has chosen to give to conduct, performance or work history will not be sufficient to discharge this evidentiary onus. Further, that it is incumbent on BHP to prove the matters upon which it relies in dismissing an employee, be it alleged misconduct or poor performance, to the relevant standard (by way of admissible evidence). A failure by BHP to do so must result in a finding that the relevant assertion is not proven.

[164] It was contended that aside from vague and generalised allegations of poor performance, the respondent only identified two incidents in the show cause correspondence relating to alleged sub-standard work performance. In addition, BHP identifies five incidents in which Mr Ingrey was allegedly disrespectful to his supervisors.

Dragline maintenance repairs on 19 January 2016

[165] It was submitted that notwithstanding the apparent safety risk to Mr Ingrey, along with another employee, Mr Paton stated, Mr Ingrey ultimately complied with the direction to perform the duties. Furthermore, this is not an example of poor performance. Mr Ingrey raised a legitimate safety concern which was supported by another employee. The various BHP procedures and policies encourage employees to raise concerns in the manner which Mr Ingrey did. For whatever reason, the supervisors were not prepared to take the relevant steps to ensure the workers’ safety. This does not mean Mr Ingrey did not perform his duties properly. Despite the supervisors’ inaction, Mr Ingrey complied with the direction and performed the unsafe work.

7 June 2016 DRE 22s drag ropes maintenance

[166] It is submitted the incident on 7 June 2016 represents a disagreement about whether a task was safe. Mr Ingrey did not believe it was appropriate to sign off on the JSA and the level of risk attached to the use of the donga tool. His supervisor disagreed and directed him to leave the area. Mr Ingrey was prepared to discuss and resolve his concerns and thereafter continue working on the task or a different task in the area. However, his supervisor overreacted and removed him from the area. This example does not make good the allegation of poor performance. It most certainly does not warrant, in any way, the termination of Mr Ingrey’s employment.

Alleged disrespectful attitude

[167] BHP relies on five alleged incidents of Mr Ingrey being disrespectful to his supervisors. The first incident occurred on 8 February 2016 at the second PIP review. It was alleged that by purporting to sign the PIP under duress, Mr Ingrey acted disrespectfully toward Mr Busk. That Mr Ingrey did not agree with the predetermined conclusions in the PIP, had concerns with the process being undertaken and consequently did not agree with the outcome of the review, is not disrespectful or an example of poor performance. The PIP process is supposed to involve a two way discussion about the performance of the employee. That BHP sought to predetermine the outcome before that discussion is not consistent with that process.

[168] With respect to the next incident on 10 February 2016, it was submitted that one of the reasons Mr Ingrey was told that his performance required “improvement” was that he was allegedly taking too long to complete his 1SAP entries because he was entering too much detail. This was inconsistent with a previous direction Mr Ingrey had received in respect of how he was to complete his 1SAP entries. In response, Mr Ingrey sought out his supervisor and asked to be shown what it was that he was doing wrong.

[169] The third incident BHP relies upon is an exchange on 31 May 2016 between Mr Brad Johnson and Mr Ingrey. During this exchange Mr Johnson was giving Mr Ingrey instructions about the performance of maintenance in fitting a door seal where the correct part was not available.

[170] It was submitted that it became apparent to Mr Ingrey early in the discussion with Mr Johnson that the instructions that Mr Johnson was giving him would not resolve the problem. It was acknowledged that whilst Mr Ingrey was persistent in this conversation in attempting to explain his concerns to Mr Johnson, there is nothing disrespectful or inappropriate in his conduct. BHP’s charter values require frank and open communication. Mr Johnson’s instructions did not properly take into account the circumstances that were in existence. So much was accepted by Mr Blaney at a later time. In any event, Mr Ingrey complied with Mr Johnson’s direction and performed the task notwithstanding his concerns.

[171] The fourth incident relied upon by the respondent is an exchange between Mr Blaney and Mr Ingrey on 15 June 2016. Prior to this time Mr Ingrey had written to Mr Blaney raising some concerns about the way in which Mr Blaney was conducting his performance improvement plan reviews. Mr Blaney’s response to that was to announce to Mr Ingrey that he had a response to his letter in front of other employees. It was contended this was conduct which was plainly calculated to humiliate Mr Ingrey.

[172] It was submitted that after Mr Ingrey had read the detailed response, he simply observed that the response contained a detailed account of the meeting in question and that he did not see Mr Blaney take any notes during that meeting. Mr Ingrey then enquired as to whether Mr Blaney had recorded the meeting. It was contended that the question was reasonable in circumstances where the response contained a detailed account of the meeting and where Mr Blaney had not taken contemporaneous notes. Further, asking whether the meeting had been recorded is not in and of itself either disrespectful or threatening. Mr Ingrey noted, as an aside, that it was irrelevant whether the meeting had been taped or not because Mr Blaney’s notes could be the subject of an order for production if a matter went further.

[173] The final incident relied upon by BHP is Mr Ingrey stating that Mr Blaney had been nasty and asking him how long he had been in the industry. Mr Ingrey accepted that he should not have made the first comment and he has apologised. Mr Ingrey’s comment was made in the context of the final PIP meeting. At this time, it was apparent that Mr Blaney was not going pass Mr Ingrey for the PIP. It was submitted that Mr Ingrey was distressed and under pressure at the time. He felt his employment was under threat. In the circumstances, the momentary lapse by Mr Ingrey is explicable. It does not amount to a valid reason for dismissal.

[174] BHP has contended that Mr Ingrey had not been willing to accept the outcomes of the performance improvement reviews. Mr Ingrey refutes the assertion and has on numerous occasions, including in writing, indicated his willingness to comply with BHP’s requirements. Mr Ingrey’s complaint was that BHP had not made clear to him what they wanted and have ignored his feedback. It was submitted Mr Ingrey’s expressions of dissatisfaction at BHP’s ability to articulate what it wanted from him were entirely reasonable in the circumstances and did not warrant the termination of his employment.

Applicant’s submissions on s.387(e) – warnings for unsatisfactory performance

[175] It was submitted that BHP was not able to properly articulate to Mr Ingrey what it was that he was not doing correctly and on numerous occasions Mr Ingrey was told that it was his obligation to provide examples of his good conduct and provide that to BHP. It was further submitted that such a position is plainly unfair and inconsistent with the authorities.

[176] It was contended that if Mr Ingrey was a poorly performing employee, then identifying examples of his performance in each area, explaining how that performance fell short of the expectations and giving instruction on how he could improve should have been a simple and straightforward exercise. Despite this, BHP was unable to do so and the responsibility for this failure should not be borne by the applicant.

Applicant’s submissions on s.387(h) – other relevant matters

[177] Mr Ingrey submitted that significant weight should be attached to his length of service and work record with BHP. Mr Ingrey had been employed for 27 years.

[178] It was contended prior to Mr Sherlock’s dispute with Mr Ingrey in respect of his conduct in May 2012, he had no relevant history of discipline or poor work performance.

[179] Mr Ingrey submitted even if the two examples of alleged poor performance can be made out and the five alleged examples of disrespectful conduct can be made out, such conduct does not warrant in and of itself, the termination of Mr Ingrey’s employment and regard must be had to the fact that Mr Ingrey has 27 years employment with BHP.

[180] This is especially so in circumstances where there is evidence of BHP not taking any action in respect of identified issues of poor performance with other employees. 38

[181] Mr Ingrey is 51 years of age. He is married with three children, two of whom are dependent on his income. Moreover, the applicant’s wife was made redundant shortly before the termination.

[182] It was submitted that due to the termination it will now be almost impossible for Mr Ingrey to find comparable full time permanent employment. It is also likely that he will need to move from his lifelong home in order to find alternative work.

[183] The termination has caused Mr Ingrey and his family great emotional and financial stress. The loss of income caused by the termination has been significant.

[184] It is submitted that the impact of the termination in this case is at the most extreme end of the harshness scale. Mr Ingrey has attempted to find alternative employment without success. He now faces a lengthy period of unemployment due to the termination.

Outline of Respondent’s Closing Submissions

Respondent’s submissions on s.387(a) – valid reason

[185] BHP submitted that Mr Ingrey’s termination was the culmination of a lengthy and fair process implemented with the objective of improving the performance and behaviour of Mr Ingrey up to the expected standard of all mine workers.

[186] BHP’s reasons for dismissing Mr Ingrey focus upon his unsuccessful completion of the PIP. It was put that Mr Ingrey's performance was and had, for some time, been the source of concern. That concern reflected in his receiving poor performance ratings from his supervisors. It was on account of those poor ratings-or, more accurately, the most recent of them that Mr Ingrey was placed on his PIP.

[187] BHP submitted the PIP identified six broad respects in which it was hoped that Mr Ingrey's performance and behaviour would improve. There is no suggestion and nor could there sensibly be any suggestion-that any of them was unreasonably insisted upon. The applicant's case is not that it was unreasonable for the respondent to, for example, insist that he interact with his colleagues and supervisors with courtesy and professionalism.

[188] It is BHP’s submission that the content of the PIP and its expectations were discussed with both Mr Ingrey and his union representatives at the meeting of 7 December 2015. BHP argued that the areas requiring improvement were clearly identified on the PIP document that was provided to Mr Ingrey. BHP submitted that the requirements outlined on the document were comprehensive with unprecedented detail provided.  39

[189] BHP further provided that Mr Ingrey availed himself of the opportunity to make clarification of any aspects of the PIP he did not understand. BHP contended that it was made clear to Mr Ingrey that a failure to improve his performance could result in his employment being terminated.

[190] BHP submitted that during the six month PIP process Mr Ingrey made minimal improvement. BHP argued that Mr Ingrey exhibited an obstructionist attitude in his work approach and made continual challenges to his supervisors and their attempts at improving his work performance. It is BHP’s evidence that Mr Ingrey was issued with a written warning in response to his conduct at a monthly review meeting where Mr Ingrey did not accept feedback professionally or respectfully.  40

[191] BHP submitted that the valid reason for Mr Ingrey’s dismissal was dependent on the question of whether Mr Ingrey had met the requirements of the PIP or alternatively whether he exhibited an inability or unwillingness to meet the requirements of the PIP. BHP argued the six month period of Mr Ingrey’s PIP was important, but that the reason for Mr Ingrey’s dismissal should be assessed by reference to the show cause letter being the start of the termination process.

[192] BHP submitted that the Commission ought to be satisfied that Mr Ingrey’s dismissal was premised upon a valid reason or reasons, namely, his failure of the PIP.

Respondent’s submissions on s.387(e) – warnings for unsatisfactory performance

[193] It was submitted for BHP that the PIP process dates back to December 2015, nearly seven months prior to Mr Ingrey's dismissal. Mr Ingrey and Mr Busk had a lengthy discussion about the content of the PIP including the areas of his performance upon which Mr Ingrey needed to improve in order to successfully complete it. BHP contended a detailed set of expectations was drawn up and presented to Mr Ingrey for his consideration. Mr Ingrey had the opportunity to and did ask questions to clarify any expectations that he felt required clarification.

[194] BHP submitted the consequences of any failure by Mr Ingrey to improve his performance were made clear in that it could leave to dismissal. Further, despite the lengthy discussion about expectations that occurred on 7 December 2015; and despite the opportunity that Mr Ingrey had on that occasion to clarify whatever he felt required clarification, Mr Ingrey now criticises the respondent for having not drilled down, with ‘sub-atomic’ precision, to individual examples of conduct that would and would not satisfy the requirements of the PIP.

[195] BHP contended it was incumbent upon Mr Ingrey to improve his performance in accordance with the PIP and that it was in his interests to bring to BHP’s attention whatever examples of such improvement that he could so as to demonstrate his satisfaction of that requirement. Further, the requirement was that BHP be satisfied of improvement in Mr Ingrey's performance. The notion that Mr Ingrey might himself identify examples of that improvement is unremarkable; and his failure to do so merely reflects the view to which the respondent was ultimately drawn, namely that his performance did not sufficiently improve.

Respondent’s submissions on s.387(h) – other relevant matters

[196] BHP argued that while Mr Ingrey’s service was lengthy, long service is not a shield that can be used to excuse sustained poor performance. BHP further contended there are many cases in which the Commission has upheld the dismissal of long-serving employees. It is appropriate to take it into account; but where, as here, an employee has been given every opportunity, over a generous period of time, to change his ways and has either been unable or unwilling to do so, the fact that he's been employed for a long time is neither here nor there.

[197] BHP submitted that it is inconceivable that BHP might have singled Mr Ingrey out, amongst the many committed unionists and employee representatives that it employs for unfavourable treatment on account of what appears to have been an unremarkable disagreement that ultimately was not pursued beyond an initial conference before the Commission; and that thereafter, Mr Sherlock, Mr Busk, Mr Blaney, Mr Ferricks, Mr Dodds, and multiple others conspired to form unfavourable views about Mr Ingrey only be reason of some coordinated treachery that has played out over more than four years.

Respondent’s submissions on remedy

[198] BHP submitted that Mr Ingrey’s application ought to be dismissed. In the event that the Commission accepts Mr Ingrey’s contention that he was unfairly dismissed, BHP contended reinstate would not be an appropriate remedy.

[199] BHP contended that the relation between Mr Ingrey and BHP has deteriorated to the point that it is no longer, and has long not been, viable or productive. Further, regardless of how the dismissal might be characterised, it is clear, both from his own material and BHP’s, that Mr Ingrey’s relationship with BHP is one of confrontation, antagonism and conflict.

[200] BHP submitted in the circumstances, it would be impractical, if not impossible, for Mr Ingrey to be re-integrated into the workforce at Saraji Mine. Further, if Mr Ingrey were to be awarded compensation, it should be an amount significantly discounted on account of his conduct.

Harsh, unjust or unreasonable

[201] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

[202] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

[203] I am under a duty to consider each of these criteria in reaching my conclusion.41

[204] I will now consider each of the criteria at s.387 of the Act separately.

Valid reason - s.387(a)

[205] BHP must have a valid reason for the dismissal of Mr Ingrey, although it need not be the reason given to him at the time of the dismissal.42 The reasons should be “sound, defensible and well founded”43 and should not be “capricious, fanciful, spiteful or prejudiced.”44

[206] It appears Mr Ingrey had a reasonably unblemished period of service with BHP for a very lengthy period of time. From 2013, Mr Ingrey has had what is described as a ‘running battle’ with various supervisors and managers.

[207] As to whether it was suitable and appropriate for Mr Ingrey to have been given the lowest rating in the IDPR in July 2014, only Mr Sherlock and Mr Ingrey will know. It cannot be said, however, that Mr Ingrey entered into the settlement of the various disputes with BHP in 2015 as a na�ve, unrepresented lad. He was a middle-aged man, and a very experienced fitter with a strong union background. He resolved his various disputes with his employer by agreeing to accept the lowest rating possible, and then being subject to a PIP review for a period of no less than six months.

[208] It can be said Mr Ingrey knew what he was doing. A concession was that an earlier warning issued to him would no longer stand. Arguably Mr Ingrey determined there was some form of consideration (in the common law contract sense), or value to that arrangement.

[209] Knowing that he would then be subject to a six month PIP review, and under the terms of the settlement he couldn’t negotiate the terms of the PIP, a meeting was held to discuss the very things he needed to do well over the next six months.

[210] Mr Ingrey was represented at the meeting by Mr Brodsky, District Vice President of the CFMEU. The meeting notes have been accepted into evidence, and provide a very clear account of what was discussed and agreed at the meeting.

[211] Mr Ingrey’s assertion that he wasn’t entirely clear of what he needed to do and demonstrate following the meeting is not accepted. Even on Mr Ingrey’s evidence that he’s not well-schooled, I find there is no basis to accept that he didn’t know what he needed to do in each monthly PIP meeting.

[212] I do accept that Mr Ingrey considered that when he met monthly for the PIP review he would have an opportunity to provide relevant information and feedback. As I will make clear later, I do not believe that was adequately formalised by BHP.

[213] I do not accept, however, Mr Ingrey’s consternation that he wasn’t aware he needed to provide at least some positive examples and express demonstrations of the criteria he was required to meet.

[214] I find that from 7 December 2015, Mr Ingrey was properly subject to a six month PIP review, and he had been made aware if he failed the review a consequence may be the termination of his employment.

[215] Disappointingly, the very next day on 8 December 2015, Mr Ingrey refused to perform the work he was directed to do by his supervisor, Mr Johnson. Mr Ingrey’s refusal to work on the inside of the bucket tied up three managers (Messrs Johnson, Ensby and Busk) to deal with the situation. I find Mr Ingrey elected to do work on the outside of the bucket, and he did not follow the lawful and reasonable directions given by Mr Johnson at the commencement of the work.

[216] This incident coming so shortly after the PIP meeting to set standards for the next six months demonstrated the kind of argumentative and belligerent attitude Mr Ingrey thought was acceptable. There was no acceptable reason for Mr Ingrey to have engaged in this kind of conduct.

[217] With regard to Mr Ingrey in December 2015 claiming paid leave to attend the Blackwater mine enterprise bargaining negotiations, it is telling what was said by Mr Ingrey in cross-examination. When it was put to him that he was informed that he was not entitled to attend the Blackwater negotiations, his evidence is that he was told by Mr Busk that it didn’t concern him. 45

[218] When he was asked why he put a second request for leave for February 2016 with respect to the Blackwater mine, he answered: 46

[219] Even though Mr Ingrey later denied that he was going to keep on applying for leave until he was given something in writing, I find that Mr Ingrey felt there was an entitlement owed to him for communication to be made in writing rejecting requests for such leave. It was an unreasonable expectation, and having been informed by Mr Busk in December 2015 that he was not required or party to the Blackwater negotiations, he should have accepted that answer. He did not, and this was unreasonable.

[220] At the first PIP review meeting on 7 January 2016, on the issue of ‘Respect’, I accept Mr Ingrey might not have definitively known he needed to come armed with examples of how he had demonstrated respect and positive interactions with management. The PIP documentation set in December 2015 doesn’t expressly state on this issue he needed to attend PIP review meetings with examples on this criteria. To have marked Mr Ingrey as ‘further improvement required’ was harsh.

[221] On ‘Showing Initiative’, the basis for marking ‘further improvement required’ is sound. An appropriate matter was addressed with Mr Ingrey during the meeting.

[222] On ‘Problem Solving’, the basis for marking ‘further improvement required’ is sound, particularly when the example given in the review is taken into consideration. I do not consider Mr Ingrey was required to be a mute puppet and never question work allocated to him, but clearly, the impression Mr Ingrey gave was that he was putting barriers up to the efficient completion of work.

[223] On ‘Problem Solving’, the basis for marking ‘further improvement required’ is sound, noting that Mr Ingrey was still taking too much time to complete entries. It was noted further training had been provided.

[224] On ‘Task Completion’, the basis for marking ‘further improvement required’ is sound, when regard is had for Mr Ingrey’s conduct with the bucket work and the refusal to work inside the bucket.

[225] Upon receiving an unsatisfactory rating, Mr Ingrey’s response was to seek to formally contest Mr Busk’s role as supervisor of the PIP review, even though it had been made clear to Mr Ingrey only one month earlier Mr Busk would undertake the PIP reviews.

[226] Days later Mr Ingrey was involved in the issue regarding the boom handrail repair. Having observed all witnesses and carefully reviewed the material, I find Mr Ingrey held a legitimate safety concern with respect to performing work alone at a height, and being exposed to a gap in the handrail. Even a 50cm gap while using hand tools at a substantial height poses an unacceptable safety risk for a worker performing the work alone.

[227] However, I find Mr Ingrey’s concern was in part motivated by the moderate-to- strenuous physical exertion required to climb the stairs carrying a large amount of tools and equipment. I do accept that Mr Ingrey (and Mr Paton) considered it would be easier if a travel tower was organised so they wouldn’t have to carry approximately 18kg of tools and equipment up the many stairs.

[228] When informed that the travel tower was not available and was not going to be organised, it was incumbent on Mr Ingrey to perform the work using the next best method. Mr Ingrey then raised other safety concerns such as not being able to maintain three points of contact.

[229] I find Mr Ingrey unreasonably continued his campaign to have use of a travel tower, citing safety concerns. It was later acknowledged the work ultimately performed by Mr Ingrey and Mr Paton was safely performed by the two. While I accept Mr Ingrey’s original concerns as to the job requiring more than one worker as sound, where Mr Ingrey continued to debate the task, he was unreasonably doing so.

[230] Regarding the email sent by Mr Ingrey at 11.00pm on 24 January 2016 requesting annual leave from 27 January 2016, I do not consider it was an unreasonable request made by Mr Ingrey. While I consider Mr Busk became distracted by the reasons behind the request – that being Mr Ingrey’s air conditioning unit not working and claims of future fatigue – Mr Ingrey did attempt to give the required 48 hours’ notice of a request for leave.

[231] I consider Mr Busk was unreasonable to chastise Mr Ingrey for this request and ultimately refuse the request for leave. When the request was refused and options put to Mr Ingrey to manage his fatigue, I am of the view Mr Ingrey was somewhat inflexible in considering the company’s suggestions to manage his fatigue in light of high temperatures and what he said would be an inability to sleep properly. There appears to have been inflexibilities from both BHP and Mr Ingrey regarding this issue and a butting of heads.

[232] Having regard to the second PIP meeting on 8 February 2016, I conclude Mr Ingrey might still have been underprepared to bring examples to the meeting of how he had demonstrated ‘Respect’. Again, it was a little harsh to score Mr Ingrey on this criteria when it had not been set in December 2015.

[233] However, if Mr Ingrey was in doubt about BHP’s request for him to bring and demonstrate examples at the PIP review meetings, he should not have been following the second PIP review meeting on 8 February 2016. Following this meeting, the document in Mr Ingrey’s possession stated:

[234] The PIP review addressed the two occasions Mr Ingrey had requested leave to attend EBA negotiations, together with the concern around requesting leave in late January 2016. Where Mr Ingrey was marked ‘further improvement required’, I determine that mark was sound with respect to the concern held about twice requesting leave when Mr Ingrey ought to have known it was not approved.

[235] I consider it would have been harsh to mark ‘further improvement required’ for the request for annual leave incident, noting what I have said above regarding the pettiness of the concerns raised by Mr Busk. Overall, I consider it appropriate Mr Ingrey was marked ‘further improvement required.’

[236] On ‘Showing Initiative’, the basis for marking ‘further improvement required’ is sound. The boom handrail incident was relied upon to determine this mark, and Mr Ingrey’s statement that he didn’t wish to carry 18kg of tools and equipment up a dragline like a ‘packhorse’ would not have been evidence of showing initiative.

[237] On ‘Problem Solving’ and ‘Task Completion’, reference was made to the boom handrail incident to mark ‘further improvement required.’ This reasoning is sound.

[238] On ‘1SAP’, the rating was ‘further improvement required’ because it was considered Mr Ingrey way still taking too long to make entries. There is insufficient evidence before the Commission to determine if this ranking was fair.

[239] On ‘Performance’, a rating of ‘further improvement required’ was given largely with respect to the request for employee representative leave.

[240] In summarising, it was stated within the PIP review that all areas required expected improvement. Other than for the request for annual leave incident made late at night, which I do not consider to have demonstrated poor performance, attitude or conduct, the global ranking of unsatisfactory is sound.

[241] Mr Ingrey’s evidence is that other than requesting leave to attend the Blackwater negotiations, the boom rail incident and the request for annual leave, he was not told how it is he could improve his performance. It is clear from the PIP documentation Mr Ingrey was expected to demonstrate capability, team work and efficiencies. Without doing so he would be considered to have failed the PIP.

[242] If these things were said to him at the PIP meeting, they were not sinking in with Mr Ingrey. In fact, the meeting escalated with Mr Ingrey raising his voice and speaking over Mr Busk. I accept this is what occurred.

[243] Mr Ingrey also acknowledged he had been told at the 8 February 2016 meeting he was putting in too much information into 1SAP, or information that was not relevant. On Mr Ingrey’s evidence he approached Mr Busk on 10 February 2016 in the pre-start room seeking information on how Mr Busk wanted the information inserted. On learning that Mr Busk considered he was putting too much information into 1SAP, Mr Ingrey commenced the next sentence, “Listen here fella.”

[244] It is, indeed, an extraordinary thing to say, and it is difficult to find that it was said in any way other than in anger and in a threatening tone. It is an old expression, calling a man ‘fella’. It is reminiscent of early 20th century language. It was clearly said by Mr Ingrey in frustration and to punch his point at his dissatisfaction in not being provided with the information he sought.

[245] The Commission does not criticise Mr Busk for informing Mr Ingrey an investigation was going to be undertaken regarding his alleged disrespectful behaviour towards him in the crib room on 10 February 2016. It was an appropriate course of action. However, it was unsuitable for Mr Busk to be part of the ‘investigation’ into Mr Ingrey’s conduct. If witness statements were obtained from those who saw or overheard the conversation, it would be helpful to BHP if Mr Busk was not part of the team of management undertaking the investigation.

[246] It would have been far more appropriate for Mr Ferricks to have conducted the investigation, and Mr Busk provide a witness statement as to what was said to him and why he considered it constituted misconduct. Mr Busk’s continued attendance in meetings with Mr Ingrey and the failure of Mr Busk to disguise his incredulity did nothing to encourage Mr Ingrey to acknowledge his inappropriate conduct earlier that day. In fact, where Mr Ingrey and Mr Crompton considered Mr Busk was ‘smirking’ during the meeting, this only further baited Mr Ingrey

[247] I accept Mr Ingrey spoke to Mr Busk inappropriately on 10 February 2016 in the pre-start room.

[248] It is surprising, but then after observing Mr Ingrey perhaps it is not, the following morning Mr Ingrey attended Mr Busk’s office and had a ‘blow up’ at Mr Ingrey for removing the company letterhead from the documents he was seeking. Mr Ingrey failed to take into consideration that Mr Busk was providing to him samples and templates, together with examples of his own entries to provide assistance to him. It was not Mr Ingrey’s place to raise his voice at Mr Busk and demand certain things. His conduct was unacceptable, and necessitated Mr Ferricks to leave his office to see what the commotion was.

[249] There was an astounding failure of self-awareness of Mr Ingrey. It appears he considered he could bluster his way to have his demands met. When they were not, he left the office after Mr Ferricks’ attendance.

[250] In submissions it was put that Mr Ingrey had not raised his voice or been aggressive when he sought the printed documents from Busk. That submission is not accepted for the following reasons:

[251] I am satisfied that Mr Ingrey was appropriately counselled in relation to his conduct on 8 and 10 February 2016. The written warning issued to him on 11 February 2016 was deserved. It did not reference the incident that had occurred that morning when BHP would have been entitled to have discussed in detail that incident with Mr Ingrey. It was determined to carry over the incident to the following month’s PIP review.

[252] Shortly after receiving the written warning, Mr Ingrey sought to contest the warning and PIP process, asserting his conduct had not been inappropriate on 8 and 10 February 2016. I have reviewed the responses provided by Mr Busk and Mr Ferricks respectively. There is nothing inappropriate about each of the responses.

[253] Regarding the third PIP review undertaken with Mr Ingrey, I am satisfied all of the issues were relevant to address with Mr Ingrey, except in relation to the issue of Mr Ingrey’s wife contacting Mr Busk early one morning to advise that Mr Ingrey was unwell to attend for work. While it is important for Mr Ingrey to have been cognisant of Mr Busk’s fatigue management considerations, Mr Busk revealed during the hearing in cross-examination that he was in the shower at the time of the phone call at 3.42am. 47 It was unnecessary to chastise Mr Ingrey if Mr Busk was indeed awake at this time pre-shift. It would have been more appropriate to simply indicate to Mr Ingrey the window of time pre-shift Mr Ingrey or his support person could make contact with Mr Busk and not interfere with his rest.

[254] It was also unfair to have noted ‘further improvement required’ under ‘Problem Solving’ and ‘Task Completion’ when it was noted by Mr Busk he had received good feedback from Mr Blaney with respect to these two issues.

[255] The overall mark given was ‘unsatisfactory’. This is an understandable mark, particularly given the number of incidents that arose in the month leading up to the third review, and the fact a written warning had been issued to Mr Ingrey. It would have been appropriate, however, to nominate in summary which particular criteria had been marked satisfactory and those marked unsatisfactory. It is disappointing and unfair they were all lumped together.

[256] There do not appear to have been any specific incidents in between the third and fourth PIP review meetings. Mr Busk largely noted supportive and encouraging comments about Mr Ingrey’s performance, conduct, initiative and 1SAP activities. Yet all areas were marked ‘continued improvement is required’. In cross-examination, Mr Busk stated the reason he had marked Mr Ingrey so was because “we were only four months into the six month period.” 48

[257] In cross-examination, Mr Busk was asked if the only example of poor performance was an incorrect leave application, the rating was properly put as unsatisfactory. Mr Busk maintained it was properly rated. 49

[258] In answer to questions from me during the hearing, Mr Busk stated that for the first three meetings he issued the notes he had come prepared with. For the fourth meeting, the April 2016 meeting he went away after the meeting and inserted comments reflective of what Mr Ingrey had said during the review. 50

[259] It was Mr Busk’s evidence that Mr Ingrey would have had to have met each and every criteria each month to successfully complete the PIP. If Mr Ingrey had failed to make improvements in each of the criteria, the mark would be unsatisfactory.

[260] It is noted that in April 2016, Mr Busk advised Mr Ingrey that Mr Blaney would be his designated supervisor for the purposes of the PIP while Mr Busk was off on personal leave. It is unclear why Mr Ingrey’s solicitors troubled themselves to formally write to BHP’s solicitors to ask who would be conducting the following reviews. It appears to have been a formal nuisance and it was unnecessary when Mr Ingrey had been informed in person of that decision.

[261] The fifth PIP review was undertaken by Mr Blaney on 18 May 2016. Mr Ingrey was marked ‘continued improvement required’ for four of the criteria, and ‘further improvement required’ for two of the criteria. These gradings are sound, except for ‘Showing Initiative’. The PIP did not require Mr Ingrey to positively demonstrate examples or come ‘armed’ to PIP review meetings with examples in respect of this criteria. However, it being his fifth meeting, and the earlier communication to him as to the company’s expectations, it would have been prudent for Mr Ingrey to have provided examples of ‘Showing Initiative’ for consideration by Mr Blaney.

[262] The door seal incident of 31 May 2016 is a clear example of where Mr Ingrey simply could not control himself and wanted to take an upper hand over Mr Johnson. Mr Ingrey’s evidence is that at this point he was feeling ‘hopeless’ on the path of the PIP. Yet he argued and argued over a work method with Mr Johnson until Mr Johnson gave in and instructed Mr Ingrey to return the job to how it was when he commenced. Mr Johnson then made other arrangements for the completion of the job.

[263] Why Mr Ingrey continued to argue the point is beyond understanding. At such a critical time in his review process, it was prudent he had as many supervisors as he could advocating for him or singing his praise as to his improved performance and conduct. Instead he argued and argued, only to alienate Mr Johnson and give rise to another matter to discuss at the six and final PIP review. As put by Mr Snaden in closing submissions, Mr Ingrey should have simply done what the boss asked him to do. 51 There was no safety risk.

[264] The donga incident of 7 June 2016 is yet another example of Mr Ingrey unnecessarily seeking to test the boundaries. Having viewed video footage of the use of a donga, it is understood that it is a task that is not risk-free. Certainly, if a person slipped while the donga is on the swing-through there is a risk of injury to a person in its path. I consider BHP and relevant supervisors and workers have undertaken relevant safety reviews and determined it is an acceptable risk.

[265] It makes no sense, however, for Mr Ingrey to have nominated this as an unsafe work practice on what was a very critical day. He had been using it in the months preceding the visit by Mr Henry, seemingly without consternation.

[266] On the material before the Commission, I am satisfied Mr Ingrey was looking to cause upset on 7 June 2016. The use of the donga had been contained as part of a work flow in an earlier JSA signed by Mr Ingrey. What he was being tasked to do as part of a group was to sign off on a specific JSA on the use of the donga. It was not an unreasonable request, however I find Mr Ingrey’s conduct was unreasonable in refusing to sign the JSA.

[267] I do not consider BHP acted maliciously or inappropriately by removing him from the task. I do not consider that Mr Ingrey was sidelined after raising a bona fide safety concern. I do not consider Mr Ingrey’s concern had any bona fides about it.

[268] On 8 June 2016, Mr Ingrey sought to contest the fifth PIP review. Mr Ingrey’s letter to Mr Blaney was appropriate, and sought to ensure his concerns about the rating in the letter were addressed to his own satisfaction.

[269] I accept Mr Blaney should not have advised Mr Ingrey in the pre-start room that he had a written response to Mr Ingrey’s letter. This could most certainly have been done discreetly. However, Mr Ingrey’s response to Mr Blaney was unacceptable. His suggestion that Mr Blaney had taped the conversation without Mr Ingrey’s approval was an aggressive assertion made by Mr Ingrey. He doubled-down on the comment by then suggesting Mr Blaney’s notes could be subpoenaed.

[270] Mr Ingrey’s conduct was hardly conducive to constructive working relationships. He was on a course to destroy them, but sadly he could not see that, or if he did, he wanted to go down ‘swinging’.

[271] The PIP review notes were altered after the fifth meeting, and as a result of Mr Ingrey’s complaint the notes contained responses that had been put by Mr Ingrey during the fifth PIP review meeting. Mr Blaney still rated Mr Ingrey as unsatisfactory.

[272] During the sixth and final PIP review meeting, even with representation, Mr Ingrey’s conduct by the end of the meeting was inappropriate. While it was appropriate for him to challenge some issues in the meeting, by the conclusion of the meeting and after numerous breaks, Mr Ingrey resorted to a personal attack on Mr Blaney. The allegation that Mr Blaney is known to be ‘very, very nasty’ is an incredible thing to say to the supervisor undertaking one’s PIP review.

[273] Again, Mr Ingrey continued the personal attack when after learning a further meeting would be convened, Mr Ingrey asked Mr Blaney how long he had been in the industry, insinuating he hadn’t been in the industry very long, and Mr Ingrey longer.

[274] After being issued with a show cause letter, Mr Ingrey responded in a detailed, well-thought out response. Mr Ingrey at [150] acknowledged had been told improvement was required in each and every category at each and every PIP review meeting.

[275] It is noted that Mr Ingrey had sought to apologise for the statements made to Mr Blaney that constituted personal attacks on him, however they were still uttered by him, and it was reasonably determined by BHP, were unacceptable.

[276] I am satisfied the reasons provided by BHP to dismiss Mr Ingrey constitute a valid reason for the dismissal. The PIP review was sound and ultimately agreed to by Mr Ingrey at the resolution of his earlier dispute. He knew full well he could fail the PIP and be subject to consideration of termination of his employment.

[277] He was well and truly informed of his obligation to provide examples on the some of the criteria for consideration. This is particularly so for ‘Problem Solving’ by the use of the word ‘demonstrate’ and ‘Performance’ with ‘provide regular examples to your Supervisor of where you have overcome issues and provided solutions.’ While it was an obligation greater than those in the general worker population of BHP satisfactorily performing their duties, it was not an unreasonable requirement on Mr Ingrey to require him to demonstrate the various indicia.

[278] If Mr Ingrey had taken seriously the potential loss of his employment, he could have put aside his adversarial and dogmatic style of workplace combat for a period of at least six months. It would have served him well to have quietly performed his tasks under direction, while showing the required initiative and problem solving he was directed to demonstrate.

[279] It would not have meant he had to be a wall-flower in the workplace, nor would he have been silenced over bona fide safety concerns genuinely held by him. It would simply have been a dialling back of the antagonistic conduct he was used to engaging in.

[280] If he had conducted himself in this way he would not have been involved in the many further incidents that arose during the PIP review. It is clear Mr Ingrey wasn’t dismissed simply because BHP considered he hadn’t successfully met the PIP. I accept Mr Ingrey didn’t satisfactorily meet the PIP requirements, even when some of parts of the monthly reviews were harshly judged.

[281] The matters addressed above and the findings made by the Commission in each respective incident, together with Mr Ingrey’s failure to satisfactorily fulfil the PIP review constitute a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[282] Mr Ingrey was provided with a very detailed and well-written show cause letter. All of the matters for consideration by BHP were made clear to Mr Ingrey in this letter.

Opportunity to respond - s.387(c)

[283] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.52

[284] There is considerable concern that at each of the monthly PIP review meetings, Mr Ingrey was presented with the supervisor’s views of the failure by Mr Ingrey to meet the relevant criteria, and Mr Ingrey was then left to provide oral submissions.

[285] In each of the final PIP review assessments, except for the fifth one, Mr Ingrey’s response was not recorded or formalised. This is a significant criticism of BHP’s PIP review process.

[286] It is appropriate for a manager to come armed with a list of matters for discussion and to talk to each of the criteria. I am comfortable for a manager to provide a preliminary rating to an employee subject to a PIP review. However, where the Commission holds concerns is so little weight being given to the employee’s response. More often than not Mr Ingrey was informed at the end of the meeting of the rating.

[287] It would carry greater weight and significance if an employee’s response is recorded within the document, and within say, 24 hours of the PIP review meeting occurring, the employee is informed of the rating issued to the employee. It would demonstrate greater consideration has been given by the employer relevant to the employee’s response.

[288] While the above is a criticism of the practice adopted by BHP in this matter, and there is no evidence before the Commission of the existence of a formal PIP process or policy, it is a matter for BHP to determine if this criticism results in changes to the application of the PIP processes or policies in the future.

[289] Despite the above shortcomings in procedural fairness, Mr Ingrey was provided an opportunity to respond each month to BHP’s concerns. On some occasions he accepted the monthly review and at other times he reacted inappropriately to challenge the findings of the company. At [268] Mr Ingrey’s contest to the fifth PIP review was appropriate and well-written.

[290] At the issue of the show cause letter, Mr Ingrey was provided with ample opportunity to respond to the letter, in full knowledge that termination of employment was a real possibility.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[291] Mr Ingrey was offered the opportunity to have an employee representative at all times except during the first four PIP review meetings.

[292] There is no obligation on BHP to allow an employee a support person during PIP reviews.

[293] This criterion is a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[294] Mr Ingrey was well aware of the consequences of failure to successfully complete the PIP review process. The PIP review formed a substantial part of the settlement of his earlier disputes with BHP facilitated by the Commission, noting the parties were represented.

[295] While a settlement term existed such that Mr Ingrey could not dispute or negotiate the PIP review that he was required to undertake, such term could not ever outplace Mr Ingrey’s entitlement to bring a claim of unfair dismissal. Nor was such a submission made by BHP.

[296] It is necessary, however, to make it clear that BHP did not have carte blanche to treat Mr Ingrey any way it wished during the six month PIP review process. If BHP had been capricious, fanciful, spiteful or prejudiced to Mr Ingrey, resulting in an unsound dismissal, it would not be entitled to hide behind the settlement terms earlier entered into.

[297] Mr Ingrey’s further conduct during the PIP review process, resulting in the issuing of a written warning for his disrespectful statements made to Mr Busk weighs against Mr Ingrey.

Impact of the size of the Respondent on procedures followed - s.387(f); and

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[298] BHP is a large employer with a substantial human resources function. It employs human resources management specialists and regularly avails itself of external legal advice and representation.

[299] I have addressed above a number of deficiencies in some procedural aspects of the dismissal and PIP review process. These procedural deficiencies are largely Mr Busk’s own investigation of Mr Ingrey’s conduct on 10 February 2016, together with a failure to record and demonstrate formal consideration of Mr Ingrey’s responses at each PIP review meeting.

[300] In determining whether the dismissal was harsh, unjust or unreasonable, the deficiencies identified above, when having regard to the considerable size of BHP weigh against BHP, but not to any significant degree.

Other relevant matters - s.387(h)

[301] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Mr Ingrey was harsh, unjust or unreasonable:

[302] It is clear it is necessary to have regard for Mr Ingrey’s very substantial service with BHP. A period of 27 years is a very long time, and given Mr Ingrey’s age, location, education level and ability to mitigate the loss of his employment, I have taken it into consideration in this decision and attributed due weight to it. I have also considered the other matters raised by Mr Ingrey as to the impact the termination has had on his family and the financial obligations within the family.

Conclusion

[303] Having carefully weighed up all of the matters I am obliged to consider, I do not find the dismissal was harsh, unjust or unreasonable.

[304] I do not consider termination of employment was a disproportionate response to the failure of Mr Ingrey to satisfactorily and adequately improve his performance to a desired standard. Nor could BHP condone the many concerns it had during the six month period with respect to incidents where Mr Ingrey’s conduct was inappropriate.

[305] I do not accept the dismissal was capricious, spiteful, fanciful or prejudiced. BHP engaged in a genuine, thorough and lengthy performance improvement process with Mr Ingrey in the lead up to his dismissal. Instead of confronting the performance issues raised with him, Mr Ingrey made only mild and sporadic attempts to improve upon his performance and continued to display what could be described as belligerent behaviour during the PIP process and for his supervisors.

[306] Mr Ingrey had been heavily involved in disputation with BHP throughout 2014 and 2015. He ought to have known his performance over the six month PIP review period would be carefully reviewed. I do not consider it was orchestrated in any way to be conducive to Mr Ingrey failing the review.

[307] Ultimately, Mr Ingrey did not perform to the required performance levels throughout most of the six month period. Where he did demonstrate good performance and capability, together with problem solving and improved 1SAP entries, it was outweighed by other incidents involving Mr Ingrey.

[308] Mr Massey submitted in closing submissions that should the Commission find a valid reason exists for the dismissal, and any procedural blemishes can be waived, Mr Ingrey’s very substantial service history of 27 years would render the dismissal harsh. It is clear Mr Ingrey is a competent boilermaker with very good workmanship.

[309] Mr Massey submitted that the complaints made against Mr Ingrey were at the periphery of his duties. The Commission does not agree with this submission. At the most important time in Mr Ingrey’s career with BHP, when he was expected to demonstrate excellent work, relationships and initiative, he failed. The failure was in respect of the reasonable matters required to be addressed over six months during the PIP review period, together with unacceptable incidents that arose during the review period.

[310] I do not consider the dismissal was disproportionate to the unsatisfactory performance levels and regular incidents Mr Ingrey became involved in. Whilst I have given weight to Mr Ingrey’s lengthy service and the detrimental effect the dismissal has had on him, I find this consideration is outweighed by Mr Ingrey’s sustained and systemic failure to perform and improve upon his performance in circumstances where he was afforded a robust opportunity to do so by BHP.

[311] Having considered each of the matters specified in s.387 of the Act, I am not satisfied the dismissal of Mr Ingrey was harsh, unjust or unreasonable.

[312] Accordingly, I find that Mr Ingrey’s dismissal was not unfair. The application is dismissed and an Order [PR590628] to that effect will be issued with this decision.

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

COMMISSIONER

 1   Witness statement of Ken Ingrey at [33].

 2   Ibid at [124].

 3   Ibid at [158].

 4   PN4905.

 5   Reply witness statement of Ken Ingrey at [24].

 6   PN111.

 7   PN197.

 8   Witness statement of Ken Ingrey at Annexure KI-29.

 9   Ibid at [284].

 10   Witness statement of Ken Ingrey at Annexure KI-30.

 11   Ibit at [301].

 12   Reply statement of Brett Paterson at [21].

 13   PN1389.

 14   Witness statement of Lyndsay Busk at [66].

 15   Witness statement of Ken Ingrey at [332].

 16   Exhibit A20 and Exhibit A21.

 17   Ibid at [335]-[336].

 18   Ibid at [339].

 19   Witness statement of Brad Crompton at [24].

 20   Witness statement of Ryan Ferricks at [31].

 21  Witness statement of Brad Crompton at [21].

 22   Witness statement of Ken Ingrey at [358]-[360].

 23   Witness statement of Ryan Ferricks at [32].

 24   PN3849.

 25   Witness statement of Ken Ingrey at Annexure KI-35.

 26   Ibid at Annexure KI-39.

 27   Ibid at [381].

 28   Ibid at Annexure KI-41.

 29   Ibid at annexure KI-49.

 30   Witness statement of Bradley Johnson at [20].

 31   Ibid at [21].

 32   PN2282.

 33   Witness Statement of Ken Ingrey at [514].

 34   Ibid at [532].

 35   Reply statement of Hamish Reid at [7].

 36   Witness statement of Ken Ingrey at [538].

 37   Ibid at [547].

 38   Witness statement of Geoff Cowan at [12] to [17] and witness statement of Neil Fitzgerald at [10] to [20].

 39   Witness statement of Ryan Douglas Ferricks at [35]

 40   Statement of Ken Ingrey at Annexure KI-35

41 Sayer v Melsteel [2011] FWAFB 7498 at [20].

42 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

43 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

44 Ibid.

 45   PN1428.

 46   PN1434.

 47   PN4724.

 48   PN4744.

 49   PN4807.

 50   PN4860.

 51   PN5733.

52 RMIT v Asher (2010) 194 IR 1, 14-15

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