DECISION

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

Mr Gregory Macklin
v
BHP Coal Pty Ltd
(U2018/6955)

Application for an unfair dismissal remedy – refusal of direction issued by Supervisor – reasons for dismissal included more than that stated by respondent - no valid reason for the dismissal – period of 38 years’ service – reinstatement and backpay ordered

[1] Mr Gregory Macklin has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with BHP Coal Pty Ltd (BHP) and that his dismissal was unfair as it was harsh, unjust or unreasonable.

[2] There are no jurisdictional objections to determine. While Mr Macklin’s annual earnings were approximately $152,000, in excess of the high income threshold to bring a claim of unfair dismissal, he was employed pursuant to the BMA Enterprise Agreement 2018 (the 2018 Agreement). The application was made within the 21 day statutory time limit.

[3] The only matter that I must determine is whether Mr Macklin’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, and as a result, unfair.

Background

[4] Mr Macklin commenced employment with BHP on 4 February 1980. He held several different positions of employment with BHP during the 38 years of his employment. At the time of his dismissal on 28 June 2018, Mr Macklin’s primary duties were that of a Grader in BHP’s coal mining department at the BMA Goonyella Riverside Mine (Goonyella). At the time of his dismissal Mr Macklin had worked as a Grader for BHP for more than 20 years. 1

[5] Mr Macklin is 60 years old.

[6] Mr Macklin was also qualified as a trainer/assessor for any coal mining workers who needed to be trained and/or assessed. Mr Macklin’s duties in that respect mostly involved training or assessing workers on Grader, Wheel Dozer and Track Dozer machines. At the time of his dismissal Mr Macklin had performed duties as a trainer/assessor for approximately 17 years. 2

Hearing

[7] The matter was listed for hearing in Mackay, Queensland on 15 and 16 November 2018. Mr Macklin was represented by Mr Rowan Anderson, Senior Legal Officer of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). BHP was granted leave to be represented by Mr Bilal Rauf of Counsel, instructed by Herbert Smith Freehills (HSF).

[8] The hearing of this matter could not be concluded in Mackay and a third day of hearing was conducted in Brisbane on 29 November 2018.

[9] The following people appeared and gave evidence at the hearing:

•  Mr Gregory Macklin;

•  Mr Simon West, Mine Employee at Goonyella and Lodge President of CFMMEU Goonyella Riverside Lodge;

•  Mr Colin Nelson, Mine Employee at Goonyella and Lodge Secretary of CFMMEU Goonyella Riverside Lodge;

•  Ms Melissa Mouat, Supervisor – Coal Mining at Goonyella;

•  Mr Lachlan McNamara, Superintendent – Coal at Goonyella;

•  Mr Phillip Rivers, Supervisor – Coal Mining at Goonyella.

[10] A witness statement was given by Ms Rosemary Shanks, Trainer and Assessor, Sharp Training Pty Ltd (Sharp) in support of BHP. Ms Shanks’ evidence related to a training course she conducted 29–31 May 2017, attended by Mr Macklin. Ms Shanks was not required for cross-examination.

Disciplinary Guide

[11] BHP’s process for dealing with allegations of misconduct and disciplinary action is set out in the ‘BMA Guideline to Fair Play Policy’ (the Guide). The Guide sets out the following four-step disciplinary process to be applied where an employee is found to have engaged in misconduct (apart from serious misconduct): 3

“The application of the Just Culture Decision Tree together with the particular circumstances and severity of each case will determine the appropriate disciplinary action Step to be taken with respect of an Employee. The relevant Steps are as follows:

Step 1 An Employee will be verbally counselled by their Supervisor. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative. Written notice of the verbal counselling will be provided to the Employee and a copy placed on the Employee’s file; or

Step 2 An Employee will be counselled by the Supervisor in the form of a formal warning. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative and have the warning confirmed in writing. A copy of the formal warning will be provided to the Employee and also placed on the Employee’s file; or

Step 3 An Employee will be issued a final warning by their Supervisor or Department Manager or Superintendent. Where requested by the Employee, the Company representatives will conduct the counselling in the presence of an Employee Representative, and have the final warning confirmed in writing and the Employee will be advised that dismissal may result from any further act or misconduct. In addition, the Company can stand down the Employee without pay for up to 21 calendar days. A copy of the formal warning will be provided to the Employee and placed on the Employee’s file; or

Step 4 Disciplinary action, which is commensurate with the severity and/or frequency of the act(s) of misconduct, will be taken.

As a general guide the disciplinary procedure will work on a sequential basis e.g. first breach results in Step 1, an additional breach within a 12 month period results in Step 2, etc. However, where a Supervisor and Department Manager/Superintendent deem that the circumstances warrant the action, an Employee may be placed on a Step that is not sequential.

Where an Employee, who is in receipt of a warning under Steps 1, 2 or 3 above, receives no further warnings under Steps 1, 2 or 3 in the proceeding 12 month period, the current warning will revert to the previous Step (if any) e.g. Step 3 reverts to Step 2, Step 2 reverts to Step 1, etc.”

[12] The Guide provides that following an investigation into an allegation of misconduct and the issuing of a ‘Stepped’ warning, the relevant decision-maker must complete a ‘Just Culture Process’ to determine whether an investigated event of misconduct was ‘intentional’ or ‘unintentional’. That finding may assist the decision-maker in considering any disciplinary action to be taken against the employee.

[13] The Just Culture Process is completed using the ‘Just Culture Decision Tree’, which appears as an annexure to the Guide. ‘Unintentional’ errors are categorised as ‘slips’, ‘lapses’ or ‘mistakes’. ‘Intentional’ errors are described as either: 4

•  Cultural violations; ‘An intentional error by a person because it is perceived by that person that it is the expected action in their work group’; or

•  Deviant violations; ‘An intentional error by a person even though they know it is not the approved/tolerated action’.

Disciplinary record

[14] The oldest disciplinary record held by BHP on Mr Macklin is from 27 August 2010 when he was issued with a show cause letter for failing to report for duty on 1 August 2010. The show cause letter reveals that Mr Macklin had been issued with the following earlier warnings:

(a) 19 December 2009: Step 1 verbal warning for failing to report equipment damage in accordance with site procedures;

(b) 21 July 2010: Step 2 written warning for having an extended crib break on two occasions in breach of the terms and conditions of employment;

(c) 22 July 2010: Step 3 written warning for failing to present to work on time in breach of the terms and conditions of employment.

[15] On 14 March 2011 Mr Macklin was issued with a Step 3 final written warning for breaching BHP’s Code of Conduct on 26 February 2011. No further detail is in the final written warning. It appears that the final written warning was issued as an incident had occurred within 12 months of the Step 3 written warning having been issued at [14(b)] above.

[16] On 27 August 2013 Mr Macklin received a Step 2 written warning for breaching the BHP Charter Values and Code of Conduct after raising his voice, and pointing and swearing at a supervisor during a meeting about work performance on 21 August 2013.

[17] On 17 October 2014 Mr Macklin received a Step 1 counselling for breaching the relevant enterprise agreement. He had stopped for a crib break and did not enter the delay into the time recording system.

[18] On 18 March 2016 Mr Macklin received a Step 3 final written warning for breaching a Safe Operating Procedure on 21 February 2016. The final written warning was issued due to the way Mr Macklin spoke to a female bus driver, and after having been reminded of his obligation to wear a seat belt. I shall return to this issue in more detail later in this decision.

[19] On 14 August 2017 Mr Macklin was issued with a further final written warning for his conduct at the training course he attended between 29 - 31 May 2017 run by Ms Shanks as per [10]. I shall also return to this issue in more detail later in this decision.

[20] Mr Macklin was dismissed on 28 June 2018 for an incident that occurred on 28 May 2018.

Mr Macklin’s evidence

[21] During his employment Mr Macklin informed several supervisors, including Ms Mouat, that he did not want to provide training and assessment for BHP employees operating trucks. Mr Macklin stated that the reason for his preference was that Graders, Wheel Dozers and Track Dozers were the machines that he primarily worked with, and he considered himself particularly skilled in the operation of those machines as opposed to trucks. He informed Ms Mouat that he would prefer not to provide training on trucks unless absolutely necessary. Mr Macklin understood that Ms Mouat was ‘fine with that’. Mr Macklin did not recall the date of his discussion with Ms Mouat. 5

[22] As at 28 May 2018 his direct supervisor was Mr Rivers. Ms Mouat also supervised the crew in which Mr Macklin worked, but she was not present during the incident of 28 May 2018. 6

[23] Mr Macklin stated that he considered his relationship with Mr Rivers to be good. He would ordinarily have contact with Mr Rivers at the start of a shift or during pre-start meetings. However, Mr Macklin was usually left to complete his duties without further contact from Mr Rivers, which Mr Macklin understood was due to his experience and Mr Rivers’ and Ms Mouat’s confidence in his abilities. 7

[24] Mr Macklin understood that Mr Rivers reported directly to Mr McNamara. Mr Macklin did not recall ever having direct contact with Mr McNamara prior to Mr McNamara’s investigation of the 28 May 2018 incident, although he had seen him around the Goonyella worksite on occasion.

28 May 2018

[25] On 28 May 2018 Mr Macklin attended his worksite at approximately 6.00am. He worked on a Wheel Dozer that morning, without incident. At approximately 11.00am, Mr Rivers contacted him via two-way radio, and the following was said: 8

Rivers: Have you had crib? When are you having crib?

Macklin: On my way back in now.

Rivers: After crib, come and see me, got another job for you to do.

Macklin: Yep, will come and see you.

[26] Following the conversation with Mr Rivers, Mr Macklin was relieved by another BHP employee and he drove back to the mining crib hut in a light vehicle for his crib break. Mr Macklin stated that the crib hut is located adjacent to the Supervisors’ office and the two rooms are adjoined through a set of double doors. Mr Macklin entered the crib hut and had a short break before entering the Supervisors’ office.

[27] Mr Macklin approached Mr Rivers and both men remained standing. Mr Macklin’s recollection of the conversation is as follows:

Rivers: I want you to RPL/train a contractor on a truck.

Macklin: Well no, I don’t train contractors. I would resign as a [trainer/assessor] if I had to train contractors.

I don’t train contractors because I don’t believe I’m required to and because I don’t want to. 9

[28] The acronym ‘RPL’ refers to a ‘Recognition of Prior Learning’; a process by which a worker’s prior knowledge and existing competency is assessed. If employees are experienced in working at mine sites, and working with relevant vehicles and machinery, they need to be assessed for their prior learning before they can safely perform the work. Trainer/assessors are authorised under the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act).

[29] The contractor referred to was an employee of Downer EDI Limited (Downer). It is important that it is understood that there are typically three types of mine workers:

(a) directly employed BHP employees;

(b) labour hire employees;

(c) contractor employees such as Downer or Hastings Technology Metals Ltd.

[30] Mr Macklin stated that at no time during the conversation were any voices raised. His evidence is that Mr Rivers did not say to him that he had to do as he asked; nor did he say it was a direction. It was not stated to him that there would be consequences if he did not assess the contractor.

[31] Mr Macklin’s evidence is that at the time of the conversation he genuinely believed that he was not required to train or assess contractors under the terms and conditions of his employment. Mr Macklin stated that, had he understood at the time that he was required to train or assess contractors, and he had been directed to do so by Mr Rivers, he would have agreed to train or assess the contractor. Mr Macklin could not recall any previous occasion when he had been asked to train or assess a contractor. 10

[32] Mr Macklin stated that he did not personally agree with the way that contractors and labour hire workers are used by BHP at Goonyella. However, despite his objections, if he thought he was obliged to train or assess contractors, then he would have done so. Mr Macklin stated he had, on previous occasions, been asked to train labour hire employees working as part of his crew, and he had agreed to train those labour hire employees, despite his personal disagreement with BHP’s use of labour hire employees at Goonyella. 11

[33] Nothing further was said by Mr Rivers. Mr Macklin returned to the crib hut and had another cup of tea. Mr Macklin stated his intention was to finish his cup of tea and then approach Mr Rivers to be allocated a task to perform for the remainder of the shift.

[34] Near to the end of Mr Macklin’s crib break, Mr Rivers approached him in the crib hut and sat across from him. A conversation to the effect of the following took place:

Rivers: Come on mate, I really need you to do this, it would help me out.

Macklin: No, I don’t train contractors that will take my job.

Rivers: Well in that case, I’ll have to get you to hop in a truck for the rest of the day while I make other arrangements.

Macklin: Yep, that’s no problem at all.

[35] The precise wording and characterisation of the above conversation is central to the dispute in this matter. In this decision, the events of 28 May 2018 as set out above are referred to as “the 28 May 2018 incident”.

[36] Mr Macklin’s evidence is that Mr Rivers then left. Again, he stated that the conversation was not argumentative, and neither of them had raised their voices. Mr Macklin did not consider what Mr Rivers had said to him during the second conversation constituted a direction. Further, Mr Rivers did not explain that there would be consequences if he failed to assess the contractor.

[37] Mr Macklin considered the matter to be concluded, and he was assigned to work on a truck for the remainder of the day. His preference is to work on the Grader, but he understood that Mr Rivers needed to move people around, and Mr Macklin did not object to be assigned the truck.

[38] Mr Macklin worked for the remainder of the day and nothing further was said to him. He took a second crib break in the crib hut later in the day, but did not see Mr Rivers on this occasion.

29 May 2018

[39] On 29 May 2018 Mr Macklin attended for work at his usual time at approximately 6.15am. He was at the pre-start meeting, attended by Mr Rivers. He did not speak with Mr Rivers at the pre-start meeting; this is not unusual.

[40] He worked until approximately 4.30pm, at around his second crib break. He was having a cigarette in the smoking section when Mr Rivers approached him and informed him that when he finished his cigarette, he should come to the office for a meeting with Mr McNamara.

[41] Mr Macklin responded that he would, as soon as a shift delegate of the CFMMEU was organised. Mr Bob Grieve, a shift delegate, soon met with Mr Macklin, and together they went to the Supervisors office.

[42] Mr Macklin’s account of the conversation with Mr McNamara and Mr Rivers is that they did most of the talking. Mr Rivers stated that Mr Macklin had refused duty, and that there would be an investigation and another meeting.

30-31 May 2018

[43] At the commencement of night shift on 30 May 2018, Mr Macklin was approached by Ms Mouat. She informed him that he would be required to attend another meeting in the morning, towards the conclusion of the shift. Ms Mouat stated that Mr Grieves was away, and asked Mr Macklin who he would like as a ‘support person’.

[44] Mr Macklin replied that he would like Mr Simon West to be his representative. Ms Mouat asked if Mr West was on night shift. Mr Macklin responded that he was on day shift, not night shift. Mr Macklin continued his shift and attended the Supervisor’s office for the planned meeting at approximately 5.00am. Mr McNamara was there, together with Ms Mouat and the following conversation occurred:

Mr McNamara: You ready for the meeting?

Mr Macklin: Has Simon arrived already?

Mr McNamara: It’s not up to me to organise your support people.

[45] Mr Macklin stated that he would not discuss the 28 May 2018 incident without a representative present. Some disagreement ensued, with Mr McNamara asserting that Mr Macklin was not cooperating with the investigation and the meeting.

[46] Mr McNamara left the room and returned 5-10 minutes later and presented Mr Macklin with a letter directing him not to attend work while BHP continued to investigate the allegations that Mr Macklin had refused to follow a reasonable direction from his supervisor. Mr Macklin was stood down from employment on full pay.

[47] The following is an extract from the letter presented to Mr Macklin during the meeting of 31 May 2018: 12

“Dear Greg

Allegations about your conduct

I refer to our meeting on Thursday 31 May 2018. As we discussed, the Company is continuing to investigate allegations made against you regarding refusal to follow reasonable direction from your supervisor. I note that you have refused to participate in an interview regarding these allegations.

Direction not to attend work

You are directed not to attend work from today until further notice from the Company whilst the investigation into this matter continues. You will continue to be paid during this time and must be available at the Company’s request. We currently have your contact details on file as [phone number]……”

31 May 2018

[48] After leaving the site, Mr Macklin sent to Mr West a copy of the letter and discussed the issue with him on the phone. Mr Macklin stated to Mr West that he didn’t think that he had to train or assess the contractor. Mr Macklin said that a further meeting had been scheduled, and Mr West said he would attend with him as his representative.

[49] Mr Macklin and Mr West held a further conversation. Mr Macklin stated to Mr West that he did not think that he had to train or assess contractors if he was asked to do so. He stated that he thought that contractors and labour hire employees were different, and that is the impression Mr West had given when he had been informing Mr Macklin about changes to a recent enterprise agreement.

[50] Mr West said to Mr Macklin that was incorrect, and he did have to train contractors if he was asked to do so. Mr West explained that when he had been discussing differences in the enterprise agreement, it had been to do with the redundancy process, not about having to train contractors.

[51] Mr Macklin concluded that he had made a mistake, and he was determined to apologise and explain his mistaken belief. Mr West agreed to raise the issues on Mr Macklin’s behalf at the meeting on 1 June 2018.

1 June 2018

[52] On 1 June 2018 Mr Macklin again met with Mr McNamara. Mr West attended as Mr Macklin’s employee representative. Mr Tom Swanton, Superintendent Analysis & Improvement, assisted Mr McNamara. Mr Rivers was overseas on annual leave on this date.

[53] Mr McNamara asked Mr Macklin a series of questions about the 28 May 2018 incident and took his responses.

[54] Mr Macklin recalled that Mr McNamara referred to BHP’s ‘Charter Values’ and alleged that Mr Macklin’s conduct during the 28 May 2018 incident may have breached the Charter Values. Mr Macklin did not recall that Mr McNamara referred to any Charter Value/s in particular as having possibly been breached by Mr Macklin.

[55] Mr Macklin stated to Mr McNamara that he had discussed his obligations and the 28 May 2018 incident with Mr West. Mr Macklin, with Mr West’s assistance, explained to Mr McNamara that he had been of the mistaken belief that he was not obligated to train or assess contractors under the provisions of the 2018 Agreement due to the difference in the definitions of ‘labour hire employees’ and ‘contractors’ under the 2018 Agreement.

[56] Mr Macklin apologised to Mr McNamara for his mistake. His evidence is that he made it clear to Mr McNamara that he would follow any future direction to provide training to contractors. Mr Macklin’s evidence is that when Mr West was trying to explain the misunderstanding, Mr Swanton was talking over him. 13

[57] At the conclusion of the meeting Mr McNamara informed him that he would remain stood down [with pay] from his employment.

15 June 2018 – show cause letter issued

[58] On 15 June 2018 Mr Macklin attended a meeting conducted by Mr McNamara. Also in attendance was Mr Nelson as his employee representative. Mr Owen Edmunds, Manager of Mine Planning for BHP, also attended the meeting on behalf of BHP.

[59] Mr McNamara issued to Mr Macklin a show cause letter, reproduced below: 14

“14 June 2018

…

Dear Greg

YOUR EMPLOYMENT WITH GOONYELLA RIVERSIDE MINE

I refer to our meetings on 29 May, 31 May and 1 June 2018 in relation to the Company’s investigation into your conduct and behaviour on 28 May 2018 (Investigation). I note that Tom Swanton, Superintendent Analysis & Improvement also attended the meeting and Simon West attended as your support person/employee representative.

Findings

The investigation is now complete. The investigation found that:

•  On 28 May 2018 Phil Rivers, Supervisor, instructed you to authorise an Operator on a haul truck through the RPL process in your capacity as a Trainer Assessor.

•  You refused to authorise the Operator.

•  Phil asked you why you would not authorise the Operator, you responded with words to the effect of you “would not train a Contractor”.

•  You also said words to the effect of you “would forego [your] role as a Trainer Assessor if [you] were made to train Contractors.

•  Phil then assigned you to an alternate task and another Trainer Assessor was called in to complete the authorisation for the Operator.

Breaches

Greg, these findings are serious and constitute misconduct. Your conduct and behaviour is also in breach of Company policies and procedures, including:

•  BHP Our Charter Values, specifically: Respect, Integrity, Accountability

As you are aware, employees are expected to comply with the Company’s policies and procedures at all times during their employment.

I also consider that your conduct falls short of the expectations and your obligations as an employee and as a Trainer Assessor to follow directions given to you by the Company. In your role as a Trainer Assessor, you are required to assist in the assessment and training of all Coal Mine Workers as directed, including contractor and labour hire employees.

Outcome – Show Cause

I have taken all relevant matters relating to this investigation into account, including your statement and responses during the investigation. In particular, I have taken into account your response that you said that you had been advised by Simon West that you were not required to assist in the assessment and training of contractor and labour hire employees. I do not accept this explanation as you have been a Trainer Assessor for 17 years and have previously completed assessment and training with contractor and labour hire employees.

Greg, as a result of the above findings, my concerns about your conduct and behaviour are very serious. I consider that your conduct and behaviour is not consistent with the Company’s expectations of employees.

I have applied the BMA Guideline to Fair Play and, in the circumstances, the Company is considering taking disciplinary action against you, which may include termination of your employment. Before deciding the appropriate outcome, I would like to provide you with an opportunity to consider the findings above and your employment history with the Company, including your disciplinary history. In particular, I note that you were issued with a Step 3 – Final Written Warning on 14 August 2017 relating to your conduct and behaviour whilst on a training course, which was found to be in breach of the BHP Charter Values and the BHP Code of Conduct.

You are required to provide a written response and to show cause as to why your employment should not be terminated. Please provide your written response to me by 12pm on Monday 18 June 2018 by email [email address]. If you do not provide a written response by this time, the Company will have no alternative but to make a decision in relation to your employment based on the information presently available.

Employee Assistance Program

Greg, I understand that this may be a difficult time for you. I wish to remind you that a professional, confidential counselling service is available to you, free of charge through our EAP provider. Appointments may be made by contacting Gryphon Psychology directly on [phone number].

If you are unclear on anything covered within this letter, please contact me on [phone number].

Yours sincerely

Lachlan McNamara…”

[60] Mr McNamara said to Mr Macklin during the meeting that he considered that Mr Macklin had breached the BHP Charter Values by his conduct of 28 May 2018, and that he did not believe Mr Macklin’s explanation that he had only refused to train the contractor as he had mistakenly understood that he was not obligated to train contractors. Mr Macklin did not recall any reason being given by Mr McNamara for why he did not believe Mr Macklin.

[61] Mr Nelson requested that Mr Macklin be afforded additional time to respond to the show cause letter. Mr McNamara agreed the response should be received by 20 June 2018.

20 June 2018 - Show cause response

[62] On Mr Macklin’s behalf, Mr Nelson delivered Mr Macklin’s show cause response to BHP. The following extracts from the show cause response are of particular relevance: 15

“At the outset I would like to apologise for my actions in advising Mr Phil Rivers that I would not RPL or train the relevant Downer employee. Doing so was a mistake and a lapse in judgement on my part. I note, as previously explained, that at the time I misunderstood the relevant requirements. I acknowledge the mistake that I made and commit to ensuring that it does not happen again…

My misunderstanding at the time came from the uniqueness of the request and my understanding of the obligations under the relevant enterprise agreement. Firstly, I note that I do not recall any other occasion in my experience of 35 years where I have been asked to provide such assistance to an employee of a discrete contractor...The difference in this case, as I understood it at the time, was the Downer workers were contracted to perform particular work at the Mine under a specific contract…In my mind at the time there was a big difference between being asked to assist with the training of labour hire/temporary workers, and of Downer employees…

In addition to the above my understanding of the obligations was, mistakenly, influenced by Mr Simon West. I had recalled a meeting relating to the new enterprise agreement at which Mr West had noted the new enterprise agreement contained new definitions addressing the difference between labour hire and contractors. I incorrectly took from that meeting, when asked by Mr Rivers to provide the training, that I was not obligated to do so. I did not at the time appreciate that I was being formally instructed to perform the task or that there would be consequences if I refused the request.”

I did not intentionally act in breach of any Company policy or procedure. I acknowledge that a mistake was made and I reiterate that I now appreciate and understand properly my obligations to provide training. I am committed to ensuring that the Company can have confidence in my willingness to work in accordance with all of my obligations, and productively and safely, in the future…

I would be more than happy to complete any relevant training or retraining the Company might consider appropriate. I take my obligations seriously and look forward to continuing as a productive, conscientious and safe employee. I respectfully request that the Company seriously consider my above response and consider all alternatives to dismissal.”

[63] Mr Macklin also set out in his response to the show cause letter his extensive length of employment with BHP and his reliance on continued employment and earning capacity as he approached retirement age. Mr Macklin acknowledged receiving the Final Written Warning on 14 August 2017. However, he submitted that viewed as a whole, he had a positive record of employment. Mr Macklin noted particularly that his safety record had been acknowledged as exemplary by BHP.

[64] Mr Macklin stated that he considered if BHP’s real concern had been Mr Macklin’s failure to abide by Mr Rivers’ direction, then that could have been resolved by directing Mr Macklin in no uncertain terms to train or assess the contractor and informing him that there would be adverse consequences to him if he refused.

[65] His evidence is that while he doesn’t particularly agree with having to train and assess contractors, if directed to do so in the future, he would do so professionally.

28 June 2018 – termination meeting

[66] On 28 June 2018 Mr Macklin attended a meeting with Mr McNamara. Also in attendance was Mr West as his representative, together with Mr Gee, Manager – Production Coal.

[67] Mr McNamara read aloud to Mr Macklin a letter prepared in advance of the meeting terminating Mr Macklin’s employment following Mr McNamara’s investigation into the 28 May 2018 incident. Halfway through Mr McNamara’s reading of the letter, Mr Macklin left the meeting and did not return. Mr West conveyed a copy of the termination letter to Mr Macklin. The termination letter is reproduced below: 16

“28 June 2018

Dear Greg

Your employment

I refer to our meeting on 15 June 2018 and my letter dated 14 June 2018, outlining the findings of the recent investigation into allegations of misconduct made against you and requiring you to show cause as to why your employment should not be terminated (Show Cause Letter). Owen Edmunds and Col Nelson also attended this meeting.

As outlined in my letter to you dated 14 June 2018, your actions on 28 May 2018 constituted misconduct and were in breach of the BHP Our Charter Values, specifically Respect, Integrity and Accountability.

In the Show Cause Letter, I asked you to show cause as to why your employment should not be terminated and invited you to provide me with your written response and any further information you wanted me to consider as part of the review of your ongoing employment.

You provided me with your written response on 20 June 2018, and I have now considered this response.

Termination

I have taken all relevant matters into account in determining the appropriate outcome, including the findings of the investigation, relevant information obtained during the investigation, your employment history and your verbal and written responses.

You failed to provide satisfactory responses to the matters raised in the Show Cause Letter and I consider your conduct to fall short of the expectations and your obligations as an employee and as a Trainer Assessor. In the circumstances, given the nature of your misconduct and your breaches of Our Charter Values, I have decided to terminate your employment with effect from today.

In accordance with the BMA Enterprise Agreement 2018, you are entitled to five (5) weeks’ notice of termination of your employment. This payment will be paid to you in lieu of notice.

Payment of accrual of entitlements

Upon termination of your employment, you will also be paid all accrued and untaken annual leave and, where applicable, long service leave entitlements, less any outstanding overpayments. Details of your termination payments will be provided to you separately.

Post-Employment Obligations

After your employment ends, you must not disclose to anyone any confidential information about the Company. You also remain bound by all other obligations in your contract of employment and associated documentation which are expressed to continue after the termination of your employment.

Return of company property

Please ensure that all Company property in your possession is returned to me by 29 June 2018. This includes but is not limited to Company tools and equipment, keys to Company buildings and vehicles, all Company documents (including electronic documents, resources, software and hardware).

Your termination entitlements will not be paid to you until all Company property is returned.

Please also let me know if you have any personal property at the Mine so I can arrange to have it returned to you.

Yours sincerely

Lachlan McNamara…”

Evidence during the hearing

Position as a trainer/assessor

[68] In answering questions from Mr Rauf, Mr Macklin agreed that during the course of his employment he had been obligated to perform such tasks as reasonably required by BHP without any demarcation of duties while complying with all legal and statutory obligations. He accepted that BHP could have required him to perform any operation, mining, maintenance or technical issues that he was trained, competent or authorised to perform. He accepted that as an authorised trainer/assessor, BHP could have directed him train any other person at a mine, although he would be given preference for training opportunities on certain machinery. 17

[69] Mr Macklin agreed that refusing to comply with a direction meeting the terms expressed above would be a breach of a condition of his employment and further could undermine the authority of supervisors on site. 18

[70] Mr Macklin agreed that his role as an authorised trainer/assessor held important implications for safety at the Goonyella site and for BHP’s compliance with the CMSH Act. Mr Macklin acknowledged that BHP relied upon his assessment of a person as competent to safely operate a relevant piece or class of machinery at Goonyella as confirmation that the person was in fact competent. 19

[71] Mr Macklin agreed that if, in the course of conducting assessment or training of a person he noticed an error or deficiency in the way that the person operated a piece of machinery, and if Mr Macklin issued them an instruction to address that error but that person declined to follow Mr Macklin’s instructions, that would have been cause for concern for him. Mr Macklin agreed that if he were to maintain or repeat his instruction and the person maintained their refusal, that would have been a matter of further concern for Mr Macklin and he would not have authorised that person as competent in such circumstances. 20

[72] It was put to Mr Macklin that in accepting appointment as a trainer/assessor, he had acknowledged that he had met with a site supervisor or advisor who had explained the requirements and responsibilities of the trainer/assessor role. Mr Macklin agreed that he had signed a document accepting that he had met with a site supervisor, but denied that he actually met with a supervisor and had his obligations as a trainer/assessor explained to him. 21

[73] Mr Macklin restated his understanding that he could resign as a trainer/assessor at any time if he no longer wanted to fulfil that role, and that neither Mr Rivers nor Mr McNamara or anyone from BHP had suggested to him that that was not the case. 22

Conduct on a bus – 21 February 2016

[74] As noted at [18] of this decision, Mr Macklin was issued with a Final Written Warning on 18 June 2016 – the ‘Bus Warning Letter’.

[75] On 21 February 2016, Mr Macklin entered a bus on the Goonyella site. The female driver of that bus asked Mr Macklin to put on his seatbelt. He responded: 23

“You need to concentrate on driving as you are a female.”

[76] The following was put in cross-examination and in questions from me: 24

Rauf: What did you mean by that?

Macklin: Jokingly.  Knowing that the reputation ladies have got as drivers.

Rauf: All right.  So this was?

Macklin: That - that - it was again an out of context joke.

Rauf: Was this someone that you knew?

Macklin: No.

Rauf: So this was the Greyhound bus driver who happened to be a female.  She tells you to put your belt on and you say, "Keep your eyes on the road" - sorry, "Keep your eyes on the road because you're a female"?

Macklin: Yes.

Commissioner: What reputation to female drivers have, Mr Macklin?

Macklin: It's just a generalisation, Commissioner, that lady drivers are not good drivers.  That's all it was.  It was in - it's no derogatory term.  It's just a generalisation.

Commissioner: It's not a derogatory term, is it?  No?  It's a just generalisation that you have, is it?

Macklin: From not only me, but I used it.  Yes.

Commissioner: So not only you share that view?  You share it with others, do you?

Macklin: I don't really share the view, because I know a lot of lady drivers that are excellent drivers, Commissioner.  So - but it was in a joking tone, which was taken out of context.  That's all it was.

Commissioner: So you said to her - had she driven you before?

Macklin: Possibly, yes.

[77] Mr Macklin agreed that refusing to put his seatbelt on could be considered to be a refusal of an instruction given to him by a person on site. Mr Macklin stated that he did not think that he had been disrespectful in making the comment to the bus driver and did not see the problem with his comment, which he considered to have been made in a joking manner. However, Mr Macklin stated further that he did not maintain that jokes of that nature were ‘ok’ as he had not used that joke again. 25

[78] When asked further questions in cross-examination, Mr Macklin gave evidence that he stated to the driver: 26

"Focus on your driving.  You are a female after all…." 

[79] I asked Mr Macklin the following questions:

Commissioner: How many other people were in the bus?

Macklin: Full crew.  20-odd people.

Commissioner: "Keep your eyes on the road, because you are a female after all."  How do you think she felt?

Macklin: Yes.  I honestly can't answer that.

Commissioner: Humiliated?

Macklin: Possibly she could have.  Yes. Which I might add, after I found out there was an issue, I was denied the attempt to apologise to that person, face-to-face.

Commissioner: Did you ever see her drive the bus again?

Macklin: Honestly, no.  I couldn't tell you where or how it ended up.

Commissioner: Were you prohibited from having any contact with her?

Macklin: Yes.

Commissioner: What were you told?

Macklin: Yes, that I - because I asked - once I was told that the lady was very upset, I asked if I could meet with her and apologise.  And I was just straight out refused.

Conduct during training course of 29 May – 31 May 2017

[80] Mr Macklin acknowledged that he had been issued with a warning on 13 August 2017 regarding his conduct during a training course conducted 29 May-31 May 2017.

[81] The course run by Ms Shanks provided participants who are trainers/assessors appropriate competency to assess individuals in the workplace. Coal mining employees are typically required to undertake a refresher course every five years. The course participants included some BHP people, together with others from other corporations. There were 11 participants in total.

[82] Ms Shanks sent the following email to BHP one day after the training course ended: 27

“TAE block A Moranbah 29 to 31 Sharp Training.

Gregg Macklin [sic] was in a class of 11 candidates completing block A in TAE40110.

From the outset on day on when we all introduced ourselves, prior to the commencement of training, and talked about where we worked and our experience as a trainer and assessor, he articulated very clearly that he had been training for years and it was all bull shit the changes that had occurred over the years and it was ridiculous that he had to retrain.

During the course of the day he often stated his opinion forcibly and showed disinterest or derision to any other opinion offered by myself or the other students.

During training when I stated facts such as- principles of assessment to be valid, reliable, fair and flexible- he argued that I was wrong and this had nothing to do with how real assessment was done.

His body language was overbearing towards me and the other candidates and with this and his verbal arguments, he set about to dominate the training.

As all times I redirected back to me and minimised his disturbances as much as possible. My tactics was to ignore.

He made a very derogatory and rude remark to a statement I made about women being 50% of the target in the mining workforce very soon, when we were discussing discrimination and EEO.

At the end of the day I set a task to be completed prior to day 2 of training and indicated that I would be looking at it first thing tomorrow morning and giving them feedback.

Day Two

He arrived with his overnight task not complete at all and when I asked him about it he was very non committal [sic]. I told him in front of all the class that I expected it to be complete by the end of the day and he said words to the effect of I doubt it, and not happening etc.

During the class up to morning tea his behaviour from yesterday escalated.

He smirked and made remarks about how this is not how it happens in mining, this is not real, this is all bullshit; with me stating at all times and redirecting that this was not about mining, it was about training and assessing for many situations.

He then verbally challenged Roy Paton (trainer observer sitting in on classes) as to whether he had ever been in real mining, I closed the conversation down saying that this has nothing to do with mining, this is training and assessing.

Following this I was trying to help him with an [sic] written assessment task where he refused to accept information, again saying it was all bull shit, about simulated activities occurring for some assessment situations, as being valid in terms of adjustment.

I then asked him to step out of the room as I needed to talk with him, myself and Roy went into the vacant classroom next door, he followed.

I invited him to sit down, he refused saying I want to stand, and proceeded to fold his arms, barrel out his chest and use very confronting body posture.

I began the conversation and Roy added to the sentence at which he raised his arm and shoved it in Roy’s face and told him to shut up.

I tried to discuss the issues I was having, he refused to acknowledge any wrong doings.

I gave him the choice of staying and complying with our policies and procedures as to student behaviour or leaving and having to discuss rescheduling.

He left the room without telling me his indications, but returned to the classroom in about ten minutes.

During the rest of the day he did not speak, and completed assessment as required.

At the end of the day I discussed with him, when all the others had left his night time task that he had written up sometime during the day, but when I offered suggestions and ideas for how I expected it to be done, and not as he had written, he did not acknowledge this in any way but just walked out and left. Another task was given to all the students for them to complete and bring back the next morning, prior to the practical aspect of day three.

Day Three

Gregg [sic] arrived with his overnight task completed but not satisfactory and was offered direction for successful completion.

Gregg [sic] attended class all day without speaking, completed all assessment as required and completed the practical aspect of the unit, once his task sheet was completed satisfactorily.

He has completed and is competent in all 4 units for TAE Block A.

However, I believe there is little or no change in his skills or knowledge in training and assessing following this training, and no change in behaviours and attitudes towards the newer aspects of training and assessing under current legislation and standards.”

[83] In Ms Shanks’ statement her evidence is that she made a comment about women returning to the workforce needing breastfeeding facilities, and this was met with derogatory comments by Mr Macklin. It is her evidence that there were three women in the session who were becoming visibly upset with each of Mr Macklin’s remarks.

[84] In Mr Macklin’s witness statement he denied having made any comments in relation to breastfeeding. 28

[85] Mr Macklin’s recollection of his conduct during the training course was that he had pointed out inconsistencies between the provided course materials and the instructions given during the training course, as he had been concerned about the accuracy and usefulness of the training. Mr Macklin did not consider that he had acted aggressively during the training course.

[86] Mr Macklin recalled a discussion between him and Ms Shanks. Mr Macklin stated that Mr Roy Paton, an observer to the training had interrupted the discussion between him and Ms Shanks, to which Mr Macklin had pointed at Mr Paton and told him to “shut up”.

[87] Mr Macklin denied having ‘stood over’ Ms Shanks and Mr Paton. Mr Macklin stated that he pointed at Mr Paton but did not ‘shove his arm in [Mr Paton’s] face. Mr Macklin stated that Ms Shanks did not ever stand between him and Mr Paton. 29 Mr Macklin acknowledged that he should not have acted towards Mr Paton as he did and that he ‘lost his cool’30 where he could have handled the matter differently. He completed the training course.

[88] Mr Macklin stated that he did not agree with the content of the warning given to him on 13 August 2017. However, he had attempted to understand the concerns raised by BHP and had sought to ensure that he did not expose himself to similar allegations, and there had been no similar event. 31

[89] During the hearing Mr Rauf took Mr Macklin to the statement of Ms Shanks, and put to him the matters alleged by Ms Shanks in her statement and the complaint made by her. 32 Mr Macklin conceded that he exhibited certain behaviours as alleged against him and denied others.33 Mr Macklin agreed that he could have chosen to dispute or object to the final written warning, but in the circumstances chose to accept the final written warning and ‘move on’.34

[90] In re-examination, Mr Macklin stated that he had been called into a meeting with his supervisor at the relevant time regarding complaints made by Ms Shanks. He was informed the complaints would be investigated. Mr Macklin did not recall being provided with any opportunity to respond to Ms Shanks’ complaints; he merely recalled being informed of the outcome of the investigation by way of the final written warning. 35

[91] During the second day of hearing, Mr Rauf sought to tender documents relating to meetings that Mr Macklin participated in relevant to his conduct during the training course, and a meeting between Mr Macklin and Ms Mouat on 27 June 2017 in relation to the training course. The document was admitted. The document set out a series of questions and answers regarding the training course that were purported to be put to Mr Macklin during a meeting with Ms Mouat and Mr Russell Duncan, Supervisor, on 27 June 2017.

[92] Mr Macklin agreed that the questions and answers set out in that document reflected discussions occurring during that meeting. 36 It is an agreed fact that Mr Macklin was not shown Ms Shanks’ email of complaint until the evidence was produced in these proceedings.

Historical performance reviews

[93] Mr Macklin was asked to consider the written review of his performance that had been conducted for the 2015 financial year. 37 The review stated that Mr Macklin, ‘does not follow charter values’. Mr Macklin stated that was simply the opinion of the supervisor that had completed the review; an opinion which he did not share. Mr Macklin’s overall performance rating had been ‘(3) Meets Performance Expectations’.38

[94] The written performance review for the 2016 financial year contained comments such as, “Gregory needs to think before he speaks as it get him in trouble and need to respect other for what they are” and, “Gregory needs to respect all his crew members and give them the respect they deserve.” Mr Macklin’s overall performance rating was ‘(3) Meets Performance Expectations’. 39 Mr Macklin stated that he had been in the room with the supervisor as those comments had been written down and in all likelihood he would have said to the supervisor words to the effect, ‘I don’t agree with you’.

[95] The 2017 written performance review completed by Ms Mouat and Mr Duncan included comments such as, “[Mr Macklin] Needs to show improvement when it comes to others around the charter values, specifically respect ” and, “ Greg needs to work on some aspects with code of conduct, specifically respect.” 40 Further, Mr Macklin’s overall performance rating had dropped to a ‘(2) Improvement required’. He had refused to sign the performance review for 2017.

[96] Mr Rauf pressed Mr Macklin on his understanding of his performance assessments. The following discussion between Mr Rauf and Mr Macklin is relevant: 41

Rauf: And so these are two different supervisors now. They raised with you concerns about needing to show respect and acting consistent with the charter values, yes?

Macklin: Yes.

Rauf: They say that you're no longer meeting expectations but you need improvement, yes?

Macklin: Their opinion, yes.

Rauf: Again when you say their opinion, does it not matter that these are two supervisors now who are telling you, "Greg, you need to respect others. You need to pull up your socks and comply with the charter values". Does that not matter to you?

Macklin: So - well, why do I have to agree with somebody's opinion?

Rauf: They're supervisors?

Macklin: Just because they're supervisors, why do I have to agree with their opinion?

Rauf: All right, so if they give you feedback you say you're entitled to reject that because you might have a different opinion?

Macklin: Yes.

Rauf: All right, and that's why you refused to sign?

Macklin: Yes, I've never signed. Like I said, the 2015, I don't know why I wrote or signed it.

Rauf: At least looking across those three IDPRs you'll agree with me that with four different supervisors there's a theme of them telling you "Greg, you need to respect others. You need to act consistent with the charter values"; that's consistently conveyed to you now by four supervisors in the course of three IDPR processes, yes?

Macklin: No, I don't agree with you because that's - - -

Rauf: Their opinion?

Macklin: That is three different IDPRs where they just used that code of conduct for something to fall back on.

Rauf: It's all rubbish?

Macklin: Well, I'm not saying it's all rubbish, no. I just don't agree with their opinions.

Rauf: You don't accept it?

Macklin: I don't agree with their opinions.

Rauf: All right, so it matters not that you've had four supervisors raise a similar concern, that's their opinion and you don't have to agree with that?

Macklin: That's correct. Why have I got to agree with somebody's opinion?

Rauf: Well, they just not - - -?

Macklin: I fail to see why I'm expected to agree with somebody's opinion.

Rauf: Yes, well it's not just somebody, it's your supervisor in a work situation giving you feedback about your behaviour at the workplace. It's not just somebody. Four separate supervisors. You say that "Well, so what?"?

Macklin: No, I didn't say "So what?" I said I don't have to agree with their opinion.

Commissioner: Mr Macklin, in the 2017 meeting did you meet with Mr Duncan and Ms Mouat so that the three of you met?

Macklin: Yes.

Commissioner: And that's their signatures is it?

Macklin: I would assume so, yes. The second one, probably.

Commissioner: All right, but the three of you met in the room?

Macklin: Yes.

Commissioner: Do you recall what you said when they read out what they wrote?

Macklin: No, I honestly couldn't say what I would have said. I most likely would have said nothing.

Commissioner: All right. Thank you.

Rauf: They asked you to sign though, didn't they?

Macklin: Asked me if I would like to sign, yes.

Rauf: And you refused?

Macklin: Yes.

Rauf: What did you say as best as you can recall?

Macklin: Well, they said "Would you like to sign?" and I said "No".

Rauf: Did you say why?

Macklin: No, I don't have to say why. I just said no.

Rauf: I'm not saying you have to. I'm just understanding whether you did explain why?

Macklin: Yes.

Rauf: Did you give them your thoughts or your opinion about their opinions?

Macklin: No.

Macklin: All right, you just decided that "Look, it doesn't matter. It's their opinion. I don't have to agree with it"?

Macklin: It's their opinion, it's the company's IDPR. They can write in there - like I've said to all supervisors "You can write in there what you like".

Rauf: So as far as you're concerned you didn't agree and that was the end of it, you didn't have to worry about it?

Macklin: The - like I said, that's their opinion in - written in there.

Rauf: So you agree with what I've said? I'll repeat it. So in your mind because you saw it as their opinion, you didn't agree with it so for you it was the end of the matter, you didn't have to worry about it further?

Macklin: No, I probably didn't think about it either way. No.

Rauf: Okay, out of mind?

Macklin: Yes.

The 28 May 2018 incident

[97] Mr Macklin confirmed in cross-examination his recollection of the 28 May 2018 incident and his discussions with Mr Rivers. Mr Macklin’s recollection of the 28 May 2018 incident did not significantly change under cross-examination.

[98] Mr Rauf put to Mr Macklin that by saying to Mr Rivers words to the effect that he does not train contractors and would resign as a trainer/assessor if forced to train contractors, Mr Macklin had challenged Mr Rivers and given him an ultimatum that Mr Macklin would resign as a trainer/assessor if forced to train the contractor. 42

[99] Mr Macklin agreed that with the benefit of hindsight, he had been mistaken in refusing to assess the contractor on 28 May 2018. However, Mr Macklin stated that he had not been refusing to complete the duties of his employment as he understood them, as had not believed that training and assessing contractors was a duty of his employment. 43

[100] Mr Macklin accepted that it had probably been inappropriate to put the ‘ultimatum’ to Mr Rivers that he would resign as a trainer/assessor if forced to assess the contractor. Mr Macklin did not agree with Mr Rauf that some type of sanction or warning was warranted from his conduct in the 28 May 2018 incident. 44 Mr Macklin did not accept that his conduct had undermined Mr Rivers’ authority or that his refusal to train the contractor had been a ‘challenge’ to Mr Rivers.45

[101] Mr Macklin stated he could not recall Mr Rivers saying anything to Mr Macklin during the 28 May 2018 incident that indicated that Mr Rivers had ‘insisted’ that Mr Macklin assess the contractor. 46

[102] Following questions from Mr Rauf and Mr Anderson, I asked Mr Macklin a series of questions regarding the events of the 28 May 2018 incident and the discussions between Mr Macklin and Mr Rivers. The following extracts are relevant to my consideration of this matter: 47

Commissioner: Your evidence is that he said "Come on, mate, I really need you to do this.  It would help me out"?

Macklin: Correct.

Commissioner: And you said "No, I don't train contractors that will take my job".  "Well, in that case I'll have to get you to hop in a truck for the rest of the day while I make other arrangements".  "Yep, that's no problem at all".  So that's your evidence?

Macklin: That's correct.

Commissioner: His evidence is that he approaches you and says "You've put me in a bind.  I'll need to get someone else to RPL the Downer work now and you'll have to go out and do the truck, go and do truck operations".  So which one is it?  Did he say "Come on, mate, I really need you to do this.  It would help me out"?

Macklin: Commissioner, it's six of one, half a dozen of the other.  It - I - it could be what Phil said, it could be what I said.

Commissioner: It appears to me that Mr McNamara, his evidence is that he instructed Mr Rivers to go challenge you again?

Macklin: Yes, that did not happen.

Commissioner: Mr McNamara said to Mr Rivers "Phil, I want you to direct him to do it again".  He comes back and says "I've directed Mr Macklin to RPL a Downer worker again and he's refused"?

Macklin: Again there was no - in the second instance there was still no direction.

Commissioner: You say it was a request was it?

Macklin: Basically, yes, as the - we both sort of stated.  Yes, it was - - -

Commissioner: Is it a favour?

Macklin: That's what I understood the meaning of it to be, yes.

Commissioner: "Come on, mate, I really need you to do this.  It would help me out"?

Macklin: That's what - - -

Commissioner: You didn't think it was an obligation by the second conversation?

Macklin: Honestly, no.  No, I didn't - it wasn't a direction.  It didn't seem like a direction to me, so.

Commissioner: And when he said "Well, in that case I'll have to get you to hop in a truck for the rest of the day while I make other arrangements", was it your understanding that he accepted what you had to say?

Macklin: Yes.

Commissioner: And had acquiesced?

Macklin: Yes, that's what I understood because I did - when the truck turned up I went out and got on the truck and I thought everything was hunky dory, it was all good.

…

Commissioner: And Mr McNamara's evidence is that he instructed Mr Rivers to provide that second direction to you and that Mr Rivers reported to him that he had in fact made a second direction to you. So what are your views on that, if Mr McNamara is wrong and he's made his decision based on Mr Rivers' reporting "I made a second direction and he refused it a second time"?

Macklin: Yes, like I've already stated I did not think that his - the second conversation was a firm direction.

Meetings and investigation relating to the 28 May 2018 incident

[103] Mr Macklin confirmed that upon attending the Supervisor’s office for the meeting of 31 May 2018, he had come to know that Mr West would not be attending the meeting as he was not on shift and nothing had been organised. Mr Macklin refused to participate in the meeting without a representative.

[104] Mr Macklin agreed that during the meeting of 1 June 2018 he had been given an opportunity to provide his version of the events of the 28 May 2018 incident to Mr McNamara with the assistance of Mr West. However, Mr Macklin considered that he had been denied the opportunity to have his nominated representative available at the meeting of 31 May 2018.

[105] In answering questions from me, Mr Macklin confirmed that once he had recognised that he had been mistaken as to his obligations to train contractors under the 2018 Agreement, he resolved immediately to apologise for his error and to state that it would not happen again. 48

[106] Mr Macklin stated that he did not speak much during any of the meetings held in relation to the 28 May 2018 incident. While he had demonstrated his remorse and misunderstanding regarding the 28 May 2018 incident in his response of 20 June 2018 to the show cause letter, he acknowledged that he had not personally apologised during any of the meetings regarding the 28 May 2018 incident.

[107] Mr Macklin considered that Mr West had conveyed Mr Macklin’s apology and remorse on his behalf during the meeting of 1 June 2018. 49

[108] I referred Mr Macklin to the decision making process undertaken by Mr McNamara and the conclusion reached as set out in a ‘Just Culture Decision Tree Form’ appearing as an attachment to Mr McNamara’s statement. 50 I noted to Mr Macklin that Mr McNamara had found that in the circumstances, Mr Macklin’s conduct meant that, “Disciplinary action, which is commensurate with the severity and/or frequency of the act/s of misconduct will then be taken”.51 Mr Macklin’s personal understanding of the ‘Just Culture’ process was that the above finding did not necessarily mean that Mr Macklin’s employment would need to come to an end.52

Mitigation

[109] Mr Macklin stated that he had been unsuccessful in his attempts to find alternative work since his dismissal on 28 June 2018. Mr Macklin stated that he had attempted to mitigate his loss by:

•  searching for alternative work on online job boards and in newspapers;

•  asking for assistance in preparing a CV;

•  making enquiries regarding labour hire positions.

[110] Mr Macklin stated that his attempts to mitigate his loss did not continue after 2 October 2018, when he made his first statement in respect of this matter. Mr Macklin stated that he had not made further attempts to find alternate employment because he considered that if he were to accept other employment but was ultimately reinstated to his position with BHP, he would have ‘kept someone else out of a job’. 53

[111] I explained to Mr Macklin my obligations under s.392(2)(d) of the Act to consider his efforts to mitigate his loss in considering the amount of any order for compensation that could be made in relation to his application.

[112] Mr Macklin indicated that the Mr Anderson had explained to him his duty to mitigate his loss, and he understood that his efforts to mitigate his loss would be considered if I decided that he was unfairly dismissed but ordered that he be paid an amount of compensation as opposed to being reinstated to his former employment.

[113] During the hearing I sought Mr Macklin’s views on how receptive he considered himself to change and how flexible he would be to following further directions were he to be reinstated. Mr Macklin considered himself capable of returning to work and ‘getting on with the job’ immediately.

[114] I sought Mr Macklin’s views on his previous performance reviews, the complaint of Ms Shanks and warning he received in relation to his comments towards the bus driver during 2016, and whether he considered that he had an issue with demonstrating respect in the workplace. Mr Macklin clearly considered that any purported issues with ‘respect’ were not an issue that should prevent his reinstatement. Mr Macklin considered references to ‘respect’ in his performance reviews were “something for them to fall back on easily”. 54

[115] Mr Macklin stated further that there had been occasions during his employment when he had ‘given [fellow workers] a blast over the two-way for doing the wrong thing’, such as for driving too fast or too near to Mr Macklin while he was grading a section of road or engaging in other unsafe conduct. Mr Macklin acknowledged that on occasion, he had mistakenly used the incorrect radio channel when ‘giving a fellow worker a blast’ and had directed his comments ‘over the whole mine’, rather than over a closed channel. Mr Macklin anticipated that such conduct may have been cause for BHP to reflect in Mr Macklin’s performance reviews that he had issues with ‘respect’.

[116] In re-examination, Mr Macklin clarified that it was ‘the norm’ for persons working at the Goonyella site to use closed radio channels to talk.

Evidence of Mr Simon West

[117] Mr West stated that he is an employee of BHP working in the ‘Drill and Blast Department’ at the Goonyella mine, having worked there for approximately 14 years. Mr West also stated that has held the position of Lodge President of the CFMMEU’s Goonyella Riverside Lodge (the Lodge) for approximately eight months. Prior to that, Mr West had been the Lodge Secretary for approximately eight years.

[118] Mr West stated that he had become familiar with Mr Macklin in the course of his employment and as a result of Mr Macklin being a member of the CFMMEU. Mr West worked in a different department to Mr Macklin and did not work with him on a day-to-day basis.

Negotiation of the 2018 Agreement and explanation of new definitions

[119] Mr West stated that he had been a member of the CFMMEU’s bargaining team during the negotiation of the 2018 Agreement. He stated that in the course of those negotiations the CFMMEU and BHP agreed for new definitions relating to ‘Labour Hire’ and ‘Contractors’ to be included. The reason that new definitions were required related to issues regarding redundancies.

[120] Mr West stated that throughout the course of the negotiations he conducted several meetings with CFMMEU members at Goonyella regarding the terms of the 2018 Agreement. Mr West recalled that at several of those meetings and in discussions with members, he explained the inclusion of the definitions of “Labour Hire” and “Contractors” and how those definitions would affect redundancies. 55

Discussions with Mr Macklin regarding the 28 May 2018 incident

[121] Mr West stated that he discussed the 28 May 2018 incident with Mr Macklin on 31 May 2018 and again on 1 June 2018 prior to the meeting he attended on that date. Mr Macklin said to him that he thought that he did not have to train contractors, and had thought that Mr West had said that contractors were different from labour hire employees during meetings in relation to the 2018 Agreement. Mr West recalled that Mr Macklin stated that he had never been asked to train a contractor before.

[122] Mr West confirmed to Mr Macklin that he did have an obligation to train contractors if directed to do so, and that he had always held that obligation under the previous enterprise agreement and the 2018 Agreement. Mr West stated that Mr Macklin appeared to be genuinely confused about his obligation to train contractors. 56

[123] Mr West recalled that Mr Macklin informed him that he had determined to apologise for the 28 May 2018 incident and make clear to BHP that he would train contractors in the future if requested to do so.

[124] Mr West recalled that he was contacted by Mr Macklin by phone, who informed him that he had nominated him as his ‘employee representative’ under the 2018 Agreement. Mr West was told by Mr Macklin that BHP had attempted to conduct the meeting of 31 May 2018 without Mr West.

[125] Mr West confirmed that he was not contacted to arrange a mutually convenient time for the meeting. Mr West considered that BHP had an obligation to do so under the 2018 Agreement. He stated that he attempted to send a letter to Mr McNamara regarding the failure to inform him of the meeting of 31 May 2018. Mr West stated that some time after sending that letter, he became aware that he had entered an incorrect email address and Mr McNamara had not received his letter.

[126] Mr West stated that Mr Macklin made him aware of the further meeting to be held on 1 June 2018. Mr West stated that he was not contacted by BHP about the meeting of 1 June 2018 or consulted about when it would take place. 57

[127] Mr West stated that he was not made aware of any suggestion being made to Mr Macklin prior to the meeting of 31 May 2018 that Mr West could not be his employee representative.

Meeting of 1 June 2018

[128] Mr West attended the meeting of 1 June 2018 with Mr Macklin. Mr West recalled that Mr McNamara and Mr Swanton attended the meeting on behalf of BHP.

[129] Mr West recalled that there was some discussion between him and Mr McNamara about BHP’s obligation to inform Mr West as a nominated employee representative of the arrangements of the 31 May 2018 meeting. Mr West recalled that he referred Mr McNamara to the relevant clause of the 2018 Agreement. 58 Mr West stated that Mr McNamara did not offer an apology or explanation as to why Mr West had not been informed of the 31 May 2018 meeting. Mr West stated that he considered Mr McNamara’s misunderstanding of his obligation to inform Mr West of the 31 May 2018 was similar to Mr Macklin’s misunderstanding during the 28 May 2018 incident, except that Mr McNamara did not acknowledge or apologise for his mistake.

[130] The allegations put to Mr Macklin by Mr McNamara related to the BHP Charter Values and Mr Macklin’s alleged failure to follow directions. Mr West stated that Mr McNamara did not make any mention of the CMSH Act or Mr Macklin’s obligations under the CMSH Act. 59

[131] Mr West recalled that during the meeting of 1 June 2018, Mr Macklin stated that he had made a mistake in the 28 May 2018 incident and that it would not be repeated. He apologised for failing to train the contractor and explained his mistaken belief that he had not been obligated to train contractors. Mr Macklin stated during the meeting that he would have no issue with training contractors in the future. 60

Meeting of 28 June 2018

[132] Mr West stated that he attended a meeting on 28 June 2018 at which Mr Macklin’s employment was terminated. Mr McNamara and Mr Gee participated in the meeting on behalf of BHP. Mr West recalled that the meeting was short and mainly consisted of Mr McNamara reading the termination letter aloud.

[133] Mr West stated that while Mr McNamara was reading the termination letter aloud and after Mr McNamara had indicated that Mr Macklin’s employment had been terminated, Mr West asked Mr Macklin to wait outside. Mr West stated that he thought it unrealistic for BHP to expect Mr Macklin to remain in the meeting and for the meeting to continue after that point. 61

[134] Mr West confirmed that Mr McNamara provided him with a copy of the termination letter.

Other matters

[135] Mr West gave evidence about his understanding of ordinary operations at the Goonyella mine. Mr West stated that in his experience and as a result of his discussions with other workers at the Goonyella mine, it was not common for trainer/assessors to be asked to train or RPL a contractor. 62

[136] Mr West stated that there had been a subsequent occasion to the 31 May 2018 meeting where Mr McNamara had made no attempt to consult with him about the timing of a meeting to be held with an employee in relation to a dispute under the 2018 Agreement, and had suggested to Mr West that the meeting would continue on a certain date whether he was there or not. 63

Cross-examination

[137] In cross-examination, Mr West confirmed his understanding that BHP held a broad discretion under the 2018 Agreement to direct employees to perform tasks which they are competent or authorised to perform. Mr West agreed that trainer/assessors are obligated under the 2018 Agreement to train any other person at a mine as directed by BHP. 64

[138] Mr West agreed that if an employee refused a lawful and reasonable direction to complete a certain task or duty, then that could be a matter of serious concern. Mr West agreed that the management hierarchy at the Goonyella mine relied on the expectation that the directions of supervisors would be followed.

[139] Mr Rauf sought to clarify Mr West’s evidence and put to him that an employee’s subjective view of the tasks that they may be required to complete under an agreement would not be an acceptable basis for an employee to ‘give an ultimatum to a supervisor’. Mr West responded that if an employee were asked to perform a task, and that employee did not understand that or why they were required to perform that task, then they would not be ‘refusing’ to complete the task. 65

[140] Mr West agreed that ultimately, although there had been some dispute regarding the meeting of 31 May 2018 and the obligation of Mr McNamara to inform Mr West of that meeting, the 28 May 2018 incident was not discussed on 31 May 2018, and the meeting was rescheduled for 1 June 2018. Mr West agreed that Mr Macklin was given an opportunity to present his views of the 28 May 2018 incident during the 1 June 2018 meeting.

[141] In answering questions from Mr Anderson in re-examination, Mr West confirmed his view that there had been a denial of Mr Macklin’s right to provide a response to the allegations against him during the meeting of 31 May 2018, as a result of Mr West’s absence from that meeting. 66

[142] Mr Rauf referred Mr West to his statement where he said that he considered Mr Macklin’s misunderstanding as to his obligation to train contractors to be similar to Mr McNamara’s misunderstanding of his obligation to inform Mr West, as an employee representative, of the meeting of 31 May 2018. Mr West confirmed his views that the two circumstances were similar, and considered it very serious that Mr McNamara had not followed the 2018 Agreement. 67

[143] I asked Mr West whether in his experience as Lodge President at Goonyella whether he had been involved in other matters where an employee already possessing a ‘step 3’final written warning and subject to a further implementation of BHP’s Just Culture process had not been dismissed despite being involved in a further incident.

[144] Mr West recalled that he had been involved in a circumstance as described above where the relevant employee had not been dismissed, but had been suspended without pay for seven days.

[145] Mr West stated further that in his experience, allegations of different types of misconduct were often ‘siloed’ by BHP, so that they were at least partially distinguished in considering appropriate disciplinary action for an employee. Mr West’s understanding was that BHP categorised similar types of misconduct and had in the past distinguished misconduct where each instance of misconduct belonged to a different category. 68

[146] Mr West stated that in his experience, completion of a Just Culture process required input from the employee. Mr West stated that the ordinary process was for management to go through the process with an employee and their employee representative prior to disciplinary action being taken. Mr West considered that in the ordinary course, Mr McNamara would have completed the Just Culture proves in the presence of Mr Macklin and discussed the process while completing it.

[147] Mr West could not say whether Mr McNamara’s approach, to allow Mr Macklin an opportunity to show cause after completing the Just Culture process was ‘right or wrong’, only that it was not usual. 69

Evidence of Mr Colin Nelson

[148] Mr Nelson is an employee of BHP working at the Goonyella mine site as a Production Operator in the Prestrip department. Mr Nelson has worked at the Goonyella site for approximately 11 years. He has also held the position of Secretary of the Lodge for approximately 12 months. Prior to that, he was Vice-President of the Lodge for a further 12 months, and a shift delegate for five years.

[149] Mr Nelson has worked with Mr Macklin as part of Mr Macklin’s crew for approximately 10 years. He stated that he has found Mr Macklin to be polite and friendly throughout his dealings with him in the course of his employment.

[150] On 1 June 2018 Mr Nelson received a phone call from Mr West. He was informed by Mr West of a meeting that he had just participated in with Mr Macklin regarding the 28 May 2018 incident. Mr West asked Mr Nelson to attend a meeting that had been scheduled for 15 June 2018 with Mr Macklin, as Mr West was not able to attend. Mr Nelson was broadly informed by Mr West of the nature of the allegations against Mr Macklin and the explanation that had been provided of Mr Macklin’s misunderstanding.

Meeting of 15 June 2018

[151] Mr Nelson met with Mr Macklin privately on the morning of the meeting of 15 June 2018. Mr Macklin said that he had been mistaken of his obligations to train/assess contractors at the time of the 28 May 2018 incident. Mr Macklin appeared upset with himself for his misunderstanding.

[152] The meeting of 15 June 2018 commenced at approximately 7.30am. In attendance for BHP were Mr McNamara and Mr Edmunds. The meeting ran for approximately 20 minutes.

[153] Mr McNamara explained that an investigation of the 28 May 2018 incident had been conducted and it had been found that Mr Macklin’s conduct fell short of the ‘respect’ obligations contained in BHP’s Charter Values. Mr McNamara indicated that he did not believe Mr Macklin’s explanation that he had been mistaken as to his obligations to train contractors.

[154] Mr Nelson explained to Mr McNamara that Mr Macklin had been mistaken as to his obligations to train contractors, and that his misunderstanding had in part been contributed to by the implementation of the 2018 Agreement. Mr McNamara said that he considered it unacceptable that Mr Macklin had taken instructions from a CFMMEU delegate regarding his obligations, and not a supervisor. Mr Nelson explained that Mr Macklin had not been ‘instructed’ by Mr West; he had wrongly interpreted advice that he thought had been given to him by Mr West.

[155] Mr McNamara stated that Mr Macklin’s previous ‘step 3’ warning had contributed to his consideration to issue Mr Macklin with a notice to show cause. Mr Nelson stated that Mr McNamara did not otherwise explain the similarity of conduct or relevance of Mr Macklin’s previous ‘step 3’ warning.

[156] Mr Nelson sought, on Mr Macklin’s behalf and was granted an extension of time for Mr Macklin to provide his response to the show cause letter. Mr Macklin was informed that he would be stood down from his employment.

[157] Mr Nelson stated that Mr McNamara did not follow or implement the Just Culture process during the meeting of 15 June 2018. Mr Nelson stated, “[BHP’s] approach to this can be inconsistent but usually a just culture form is completed and explained to employee’s [sic] facing disciplinary action.” 70

Cross-examination

[158] In cross-examination, Mr Nelson agreed that in the course of undertaking his own role with BHP, he attended pre-start meetings at the commencement of each of his shifts and that at those meetings there would be occasions when Mr Nelson would be asked by a supervisor to perform tasks in the course of that shift. Mr Nelson agreed that there may be occasions when he would be asked to do something different during the course of shift. Generally, that would occur by a supervisor contacting or meeting with him and giving him oral instructions to complete a particular task. 71

[159] Mr Nelson confirmed his understanding that BHP held a broad discretion under the 2018 Agreement to direct employees to perform tasks which they are competent or authorised to perform. Mr West agreed that trainer/assessors are obligated under the 2018 Agreement to train any other person at a mine as directed by BHP. 72

[160] Mr Nelson confirmed his understanding that, as a trainer/assessor himself, he was required to train any person working at the Goonyella mine site, whether that person was a BHP employee, a labour hire worker or a contractor. Mr Nelson stated that he could recall training BHP employees and labour hire workers, but he could not recall ever having trained a contractor in the course of his employment with BHP. 73

[161] Mr Rauf produced to Mr Nelson a document describing names of persons that Mr Nelson had trained or assessed in the course of his employment. It was put to Mr Nelson that he had trained contractors in the course of his employment. Mr Nelson restated his understanding that none of the persons described he could recall having trained or assessed were contractors. BHP did not tender the document to be admitted into evidence.

[162] Mr Nelson confirmed his understanding that he would be required to train or assess a contractor if directed to do so. However, Mr Nelson noted that he would likely question a direction to train a contractor employed by Downer, since those contractors were ordinarily trained by persons employed by Downer. Mr Nelson stated that he would not refuse to train such a contractor, but he would ‘probably ask questions as to why’. 74

Evidence of Ms Melissa Mouat

[163] Ms Melissa Mouat is employed by BHP as a Supervisor in the Coal Mining Department at the Goonyella mine site. She reports to Mr McNamara. Ms Mouat started work at the Goonyella mine for Downer in January 2017, and she commenced her current role with BHP on 1 June 2017. She has worked in the coal mining industry since 2005.

[164] Ms Mouat is responsible for supervising a coal mining crew of approximately 30 mine workers. Some of those workers are employed by BHP, and some are labour hire workers.

[165] From 1 June 2017 to 21 September 2018, Ms Mouat was responsible for supervising ‘A’ Crew, which Mr Macklin was a part up until the dismissal. Ms Mouat has been responsible for supervising ‘B’ Crew since 25 September 2018.

[166] Ms Mouat stated that she did recall conversations between her and Mr Macklin while Ms Mouat was Mr Macklin’s supervisor, wherein Mr Macklin indicated that he preferred to train or assess mine workers on graders, rather than trucks. Ms Mouat stated that she was ‘happy for him to give preference to training on other equipment’ but never stated to Mr Macklin that he would not be required to train mine workers on trucks. 75

[167] Ms Mouat detailed the distinction between training and assessing a worker. She stated that assessing a worker, more commonly referred to as RPLing, involves an assessment and review of training that a worker has already completed, in addition to a supervised demonstration of the use of relevant machinery or exercise of a particular task. The RPL process remains the same regardless of whether a mine worker is a BHP employee, a labour hire worker or a contractor. 76

[168] Ms Mouat stated that to her understanding, there was no difference between BHP workers, labour hire workers and contractors and that all are considered to be ‘mine workers’ if they are working on coal mining activities.

[169] Ms Mouat stated that segregation between BHP employees, labour hire workers and contractors is actively discouraged. She personally takes steps to model inclusive behaviour towards each of those three groups of mine workers. She finds the majority of workers at the Goonyella mine site are inclusive and do socialise together during down time.

[170] Ms Mouat stated that events such as ‘State of the Nation’ meetings occur every three – six months at the Goonyella mine and are attended by all mine workers on site. Ms Mouat stated that such events provide an opportunity for mine workers to socialise.

Previous performance and disciplinary issues regarding Mr Macklin

[171] Ms Mouat stated that during her time as Mr Macklin’s supervisor, she was made aware of several disciplinary issues. She knew that he had been given a ‘Step 3 – Written Warning’ on 18 March 2016. That warning related to an incident on 21 February 2016 when Mr Macklin had refused to put his seat belt on while travelling on a bus on the Goonyella mine site and had spoken to the bus driver in a derogatory manner.

[172] She was aware that Mr Macklin was given a ‘Step 3 – Final Warning’ on 14 August 2017. That warning related to Mr Macklin’s conduct during the training course in breach of BHP’s Charter Values.

[173] During the hearing it was put to Ms Mouat that she had conducted a meeting with Mr Macklin on 27 June 2017 regarding his conduct at the training course. Ms Mouat was presented with a document alleged to be record of that meeting produced by her. Upon being presented with that document, Ms Mouat stated that she did recall that such a meeting occurred, but could not specifically recall the course of that meeting or who was in attendance at that meeting other than herself and Mr Macklin.

[174] Ms Mouat conducted Mr Macklin’s performance review for the 2017 financial year, in conjunction with Mr Russell Duncan, a Supervisor at the time. Ms Mouat recalled that she and Mr Duncan had considered that while Mr Macklin was passionate about his role as a trainer/assessor, he needed to conduct himself in accordance with the BHP Charter Values, and particularly in relation to ‘Respect’. Ms Mouat recalled that following Mr Macklin’s conduct during the training course, she and Mr Duncan had commented on Mr Macklin’s performance review that he ‘could show improvement by engaging with others in a more positive way’. 77

The 28 May 2018 incident

[175] Ms Mouat was informed by Mr Rivers of the 28 May 2018 incident after the incident had occurred. Ms Mouat acknowledged that she was not present during the 28 May 2018 incident.

[176] Ms Mouat stated that she had been responsible for arranging mine workers employed by Downer to operate trucks, and had therefore been aware that the particular worker that Mr Macklin had been asked to train or assess had already been trained and was competent to perform the relevant tasks.

Discussion with Mr Macklin on 30 May 2018 and meeting of 31 May 2018

[177] On 30 May 2018, she was instructed by Mr McNamara to notify Mr Macklin that he would be required to attend a meeting in respect of the 28 May 2018 incident on the morning of 31 May 2018. She had a discussion with Mr Macklin to that effect, with Mr Macklin suggesting that Mr Grieve attend the meeting on 31 May 2018 as his employee representative and support person. Ms Mouat informed Mr Macklin that Mr Grieve was on personal leave and therefore could not attend the meeting. As Mr Grieve was not available, Mr Macklin requested that Mr Simon West attend the meeting as his employee representative and support person.

[178] Ms Mouat understood that Mr Macklin would contact Mr West and would advise him of the meeting on 31 May 2018. 78

[179] Ms Mouat attended the meeting of 31 May 2018 with Mr McNamara. When Mr Macklin arrived, he asked where Mr West was. Either Mr McNamara or Ms Mouat informed him that Mr West was rostered to work the day shift and was not on site at the time, and could not attend the meeting on that basis.

[180] Mr Macklin refused to participate in the meeting without Mr West. Ms Mouat recalled that after Mr Macklin refused to participate in the meeting, Mr McNamara presented Mr Macklin with a letter standing him aside on pay and informing him that the meeting would be re-scheduled for 1 June 2018.

[181] Ms Mouat was not involved in any further meetings with Mr Macklin.

Reinstatement of Mr Macklin

[182] Ms Mouat stated that following Mr Macklin’s conduct during the 28 May 2018 incident and during the time that she was his supervisor, she had become concerned that Mr Macklin had refused the direction of a supervisor, and she held concerns about Mr Macklin’s return to the Goonyella mine site.

[183] In the course of her professional relationship with Mr Macklin she found him to be forthcoming with his opinions, and at times, disrespectful. Ms Mouat considered that Mr Macklin often spoke for other people and spoke at them, and did not speak calmly or in a measured way. She observed that other members of her crew, particularly younger workers, were influenced by Mr Macklin and ‘his views as to work related matters’. 79

[184] Ms Mouat stated that she would be ‘concerned’ about Mr Macklin returning to the Goonyella mine site and would be uncomfortable about being Mr Macklin’s supervisor if he returned.

Cross-examination

[185] In cross-examination, Mr Anderson put to Ms Mouat that in the course of completing a Just Culture decision-making process it would usually be the case that the relevant employee would present during the completion of that process and could make comment on the process while it was completed. Ms Mouat stated that she had completed training in relation to the Just Culture decision-making process but had not participated in a Just Culture process herself. She stated that to her knowledge the Just Culture process would usually be completed before meeting with an employee. 80

[186] Ms Mouat confirmed that she had understood Mr Macklin’s preference to conduct training and assessment on graders, and not trucks. Ms Mouat confirmed that in the course of her discussions with Mr Macklin regarding that matter, she had not said to him words to the effect that ultimately, it was not up to Mr Macklin to decide what machines he did and did not train on. 81

[187] Ms Mouat agreed that to her knowledge, Mr Macklin had not been asked to train or assess a contractor mine worker prior to the 28 May 2018 incident. 82

[188] It was put to Ms Mouat that despite the ability of supervisors under the 2018 Agreement to direct trainer/assessors to train or assess any mine worker, it was in reality an unusual circumstance that a BHP trainer/assessor would be required to train a contractor employed by Downer and that generally, Downer employees were trained by trainer/assessors employed by Downer. Ms Mouat stated that to her knowledge, the situation where a BHP employee was directed to train or assess a Downer employee and contractor had never arisen before. 83

[189] Ms Mouat agreed that she had been made aware of the 28 May 2018 incident by Mr Rivers on the same day while she and Mr Rivers were ‘around the admin building’, but she could not recall the precise time. Ms Mouat recalled that in the course of Mr Rivers describing the 28 May 2018 incident to her, he had stated to her that Mr Macklin had said to Mr Rivers words to the effect of ‘when we’re out on the grass and they have our jobs’.

[190] Mr Anderson referred Ms Mouat to her statement that segregation between BHP employees, labour hire workers and contractors was ‘actively discouraged’ by BHP at the Goonyella mine site. It was put to Ms Mouat that there was an underlying problem of segregation between different types of mine workers. Ms Mouat confirmed that she did not think there was an underlying problem of segregation at the Goonyella mine site.

[191] Mr Anderson referred Ms Mouat to her statement that BHP employees, labour hire workers and contractors would attend ‘State of the Nation’ meetings every three to six months, and that those workers would socialise at those meetings. Ms Mouat confirmed that she did not personally know of any Downer contractor having attended a ‘State of the Nation’ meeting. Ms Mouat stated that her reference in her statement to contractors being in attendance at ‘State of the Nation’ meetings was an oversight.

[192] Ms Mouat confirmed that Downer employees ordinarily take crib breaks in their own crib huts, which are located at geographically separate locations at the Goonyella mine site from the BHP crib huts.

[193] It was put to Ms Mouat that during her discussion with Mr Macklin on 30 May 2018, Mr Macklin had nominated Mr West as his chosen employee representative for the meeting of 31 May 2018, and that Mr Macklin had expected Ms Mouat to contact Mr West to inform him of the arrangements for the meeting of 31 May 2018. Ms Mouat stated that she did not know of Mr West’s contact details, and had expected Mr Macklin to contact Mr West in respect of the 31 May 2018 meeting.

[194] Ms Mouat confirmed that since 30 May 2018, she has checked the relevant clause of the 2018 Agreement and acknowledged that she had been obligated to inform Mr West of the meeting of 31 May 2018. Ms Mouat confirmed that she did not check the relevant obligations under the 2018 Agreement at the time. Ms Mouat confirmed that she had become aware of her obligation to contact nominated employee representatives as a result of the present proceedings, and had been operating under a misunderstanding until that time.

[195] Ms Mouat confirmed that Mr Macklin did not say to her that he would contact Mr West and inform him about the meeting of 31 May 2018. Ms Mouat could not recall whether Mr Macklin had said to her that Mr West was working a day shift on 31 May 2018. Ms Mouat stated that Mr West’s attendance at the meeting of 31 May 2018 could have been arranged to fit around his scheduled shift on 31 May 2018.

[196] Ms Mouat recalled having completed a performance review for Mr Macklin for the 2017 financial year with Mr Duncan. The comments made on that performance review were made without Mr Macklin’s input and prior to the time that Mr Macklin was provided with the performance review on 3 September 2017. Ms Mouat agreed that as a whole, the performance review was quite favourable to Mr Macklin. 84

[197] Ms Mouat was asked questions about her stated views on Mr Macklin’s possible return to work at Goonyella and the extent of her personal knowledge of any ‘disrespectful’ behaviour of Mr Macklin. She said that at times during pre-start meetings, she had found Mr Macklin to be ‘quite stand-offish’. She recalled that during one pre-start meeting, she has asked Mr Macklin to lower his voice while she finished the meeting. Ms Mouat could not recall the date of that pre-start meeting. 85

[198] She recalled another pre-start meeting during which she had talked about an area at the Goonyella site being re-opened, and had said to the workers present that if any of them needed to familiarise themselves with the area, they could ask her to arrange for a ‘drive-around’ of the area. By drive-around, Ms Mouat referred to a tour of the re-opened mine area by car. Ms Mouat stated that after she had invited workers to request a drive-around of the new area, Mr Macklin had stood up and said to the present workers words to the effect, “If you need someone to show you around just get them to show you around”. 86

[199] Ms Mouat considered that there was no need for Mr Macklin to have repeated her invitation to join a drive-around. Ms Mouat considered that Mr Macklin’s repetition of her instruction had the effect of belittling or second-guessing Ms Mouat as the leader. 87 She said that his comments were said loudly.88

[200] Ms Mouat agreed that Mr Macklin was an experienced mine operator and was influential amongst his co-workers. Ms Mouat agreed that Mr Macklin had shared his experience and knowledge with co-workers during his employment.

[201] Ms Mouat was shown a copy of Mr Macklin’s response to the show cause letter, which she had not seen prior to the hearing of this matter. Having read the letter during the hearing, she understood that Mr Macklin had apologised for his conduct relevant to the 28 May 2018 incident, and acknowledged that he said that he had been mistaken as to his obligation to train contractors under the 2018 Agreement.

[202] Ms Mouat stated that Mr Macklin’s statements in response to the show cause letter would not change her opinion that Mr Macklin should not be reinstated to his position. Ms Mouat stated that she remained uncomfortable with Mr Macklin and she agreed that that she held a sense of hostility towards Mr Macklin. 89 Ms Mouat stated that she now worked with B Crew, and if Mr Macklin were reinstated to A Crew, she would have very little contact with him.

Evidence of Mr Lachlan McNamara

[203] Mr Lachlan McNamara was first employed by BHP on 27 June 2016 in the role of Supervisor – Coal Mining. He has also held the position of Superintendent – Analysis and Improvement. He has held the position of Superintendent – Coal Mining since March 2018. Mr McNamara is the direct manager of Mr Rivers and Ms Mouat. He indirectly manages mining operators in the coal mining department. He reports to Mr Gee.

[204] Upon starting his current role, he was informed by the outgoing Superintendent, Mr Gee, of the final written warning issued to Mr Macklin in August 2017 regarding his conduct during the training course.

[205] Mr McNamara gave evidence about his understanding of the trainer/assessor qualification and process of training and assessing mine workers. Mr McNamara distinguished:

•  training: a process of upskilling a worker with new competencies; and

•  assessing, or Recognition of Prior Learning (RPL): an assessment of a worker’s existing competencies to ensure that the worker meets the standards of the Goonyella mine.

[206] Mr McNamara confirmed his understanding that the process of assessing a worker remained the same regardless of whether the worker in question was a BHP employee, labour hire worker or a contractor.

[207] He stated that in his experience it was common for trainer/assessors to be asked to assess BHP employees, labour hire workers and contractors. Mr McNamara stated that between 30 May 2018 and 12 June 2018, assessments were conducted by trainer/assessors for six Downer contractors. 90 It is noted that these six contractor workers were assessed following the 28 May 2018 incident and not before.

The 28 May 2018 incident

[208] At approximately 11.00am on 28 May 2018, Mr McNamara was sitting at his desk when he overheard the end of a discussion between Mr Macklin and Mr Rivers. Mr McNamara stated that he overheard Mr Macklin say words to the effect, “I’m not going to do it, so if that’s what you want, I’ll hand my trainer assessor ticket in right now”. 91

[209] Approximately 15 minutes later, Mr Rivers came to him at his desk. Mr McNamara and Mr Rivers had a conversation to the following effect: 92

Mr Rivers: I’ve just had a conversation with Greg and told him to challenge test some contractors on the haul trucks. He refused to do it.

Mr McNamara: Phil, I want you to direct him to do it again. If he continues to refuse, you’ll need to make arrangements for another trainer/assessor to do the challenge testing so the workers can start operating the trucks.

[210] Mr Rivers left Mr McNamara’s desk. Mr Rivers returned a short time later and said to Mr McNamara words to the effect, “I’ve directed Mr Macklin to RPL the Downer worker again and he’s refused. So I’ve had to take one of the trainers off the truck and instruct him to do it instead.” 93

[211] Mr McNamara instructed Mr Rivers to record his conversations with Mr Macklin in a statement. Mr McNamara stated that he was concerned about Mr Macklin’s conduct and had determined at that time that it was appropriate to investigate the matter. Mr McNamara understood that he would be responsible for undertaking the investigation of Mr Macklin’s conduct.

29 May 2018

[212] On 29 May 2018 he instructed Mr Rivers to convey to Mr Macklin to meet with Mr McNamara in the Supervisors’ office before the end of the night shift. At approximately 5.30pm, Mr Macklin attended the Supervisor’s office. Mr Grieve attended the meeting with Mr Macklin as his employee representative and support person.

[213] Mr McNamara informed Mr Macklin that it had been alleged that on 28 May 2018 he had refused to comply with a direction from Mr Rivers to perform his duties. Mr McNamara told Mr Macklin that an investigation would be conducted and Mr Macklin would be given an opportunity to provide his response.

30 May 2018

[214] At approximately 6.15pm on 30 May 2018, he directed Ms Mouat to inform Mr Macklin that a meeting was to be held on the morning of 31 May 2018 in relation to the 28 May 2018 incident.

[215] Mr McNamara was informed by Ms Mouat that Mr Macklin had originally nominated to her that he would like Mr Grieve to attend the proposed meeting as his employee representative, to which Ms Mouat had said that Mr Grieve was on personal leave and would not be available to attend the meeting and that Mr Macklin should contact an alternative support person. Ms Mouat informed Mr McNamara that Mr Macklin had suggested that Mr West attend the meeting as his employee representative. 94

31 May 2018

[216] Mr McNamara met with Mr Macklin at approximately 5.00am on 31 May 2018 at the Supervisor’s office. Ms Mouat was in attendance at the meeting on behalf of BHP. Mr McNamara stated that he had a conversation with Mr Macklin at the commencement of the meeting to the following effect: 95

Macklin: Where’s Simon?

McNamara: I am not sure where he is.

Macklin: I’m not participating in this meeting without Simon.

McNamara: Greg, you were told that Robert wasn’t at work and that you could an alternative person to attend [sic]. Clause 38.4 of the EA says that you nominate an alternative representative who is available to attend. Are you refusing to participate in the interview?

Macklin: I told you, I’m not continuing with this.

McNamara: You will be stood aside until we can resume the discussion with you.

[217] After his conversation with Mr Macklin, Mr McNamara left the meeting room for approximately 5 – 10 minutes to finalise a letter standing him aside from his position while the investigation of the 28 May 2018 incident continued. Mr McNamara confirmed during the hearing that the ‘stand aside’ letter had been prepared in advance of the meeting, and he left the meeting to amend the letter to state that Mr Macklin had refused to participate in the meeting. 96 Mr McNamara stated at hearing that it had always been his intention that Mr Macklin would be stood aside from his employment at the conclusion of the meeting of 31 May 2018.97

1 June 2018

[218] Mr McNamara attended a further meeting with Mr Macklin at approximately 11.00am on 1 June 2018 regarding the 28 May 2018 incident. Mr McNamara recalled that Mr Swanton and Mr West also attended the meeting.

[219] At the start of the meeting Mr West raised a concern that there had been insufficient attempts to notify himself about the meeting of 31 May 2018. Mr McNamara recalled that he had a short discussion with Mr West about BHP’s obligation to notify employee representatives of meetings. Mr McNamara stated that at the end of that conversation, he said to Mr West words to the effect, “We didn’t have any discussions about the allegation yesterday. We’re meeting today and you are here. So let’s continue with the purpose of this meeting.” 98

[220] Mr McNamara proceeded to ask Mr Macklin a series of questions regarding the 28 May 2018 incident. Mr Macklin responded to Mr McNamara that he had been mistaken regarding his obligations to train or assess contractors under the 2018 Agreement. Mr McNamara understood that Mr Macklin considered that he had not refused to perform his duties on 28 May 2018; he had stated to Mr Rivers that he did not consider that he was required to train contractor workers.

Finalisation of investigation

[221] Mr McNamara continued to investigate the allegations against Mr Macklin. He considered the various statements regarding the 28 May 2018 incident and his own recollection of what he had overheard of the incident. Mr McNamara also conferred with Ms Kirsty Howell, Specialist HR Business Partner of BHP in respect of the matter.

[222] Mr McNamara made the following general determinations: 99

•  Mr Macklin had been directed by Mr Rivers to Assess/RPL a Downer contractor worker, in Mr Macklin’s capacity as a trainer/assessor;

•  Mr Macklin had refused to assess/RPL the Downer contractor worker on the basis that he would not train a contractor. Mr Macklin had stated that he would forego his role as a trainer/assessor if required to train contractors;

•  Mr Macklin had been assigned an alternative task by Mr Rivers and another trainer/assessor had assessed the Downer contractor worker.

[223] On 8 June 2018 Mr McNamara completed a Just Culture Decision Tree Form to assist him in determining the appropriate response following his determination regarding the 28 May 2018 incident. He completed the Just Culture process by himself. He concluded that Mr Macklin had engaged in deviant behaviour.

[224] During the hearing Mr McNamara stated that in his experience the Just Culture process was completed after discussing the allegations in question with the relevant employee face-to-face, and the Just Culture process was completed in the absence of the relevant employee. 100

15 June 2018

[225] On 15 June 2018 Mr McNamara attended a meeting with Mr Macklin, Mr Nelson and Mr Edmunds. Mr McNamara presented Mr Macklin with his findings from his investigation into the 28 May 2018 incident and provided him with the show cause letter. Mr McNamara told Mr Macklin that he considered that Mr Macklin’s conduct had breached the BHP Charter Values of ‘Respect’, ‘Integrity’ and ‘Accountability’. He told Mr Macklin that it was reasonable to expect him to follow directions given by a supervisor and that his conduct fell short of expectations of BHP employees and trainer/assessors.

[226] Mr McNamara told Mr Macklin that he did not accept the explanation that Mr Macklin was mistaken as to his obligations to train contractors as acceptable justification for his refusal to follow Mr Rivers’ direction.

[227] He informed Mr Macklin that BHP was considering appropriate disciplinary action to take in the circumstances, which could include termination of employment. Mr McNamara noted to Mr Macklin his existing ‘Step 3 – Final Written Warning’ of 14 August 2017. He informed Mr Macklin that he would need to respond in writing to the show cause letter. Mr McNamara agreed to extend the time for Mr Macklin’s response to 20 June 2018.

[228] Mr Macklin’s response to the show cause letter was received on 20 June 2018. Mr McNamara reviewed the response and considered Mr Macklin’s explanation regarding the 28 May 2018 incident.

Decision to terminate Mr Macklin’s employment

[229] Mr McNamara stated that in forming his view of the appropriate disciplinary action to take against Mr Macklin, he considered Mr Macklin’s disciplinary records and his previous performance reviews.

[230] Upon his review, Mr McNamara learned of the previous disciplinary action that had been taken against Mr Macklin as set out in [14] – [18] above, in addition to the Step 3 – Final Written Warning of 14 August 2017 that Mr McNamara was already aware of.

[231] He considered Mr Macklin’s conduct during the training course was not dissimilar from his conduct during the 28 May 2018 incident. Mr McNamara considered that on both occasions, Mr Macklin had opposed another person because he did not agree with the requirements as conveyed by that person and had behaved in a disrespectful manner. 101

[232] In considering Mr Macklin’s previous performance reviews, Mr McNamara noted that:

•  for the 2015 financial year review, Mr Shawn Parish, Supervisor had commented that Mr Macklin, ‘does not follow the Charter Values’;

•  for the 2016 financial year review, Mr Leigh Smith, Supervisor had commented that Mr Macklin, ‘needs to think before he speaks and be respectful of others’;

•  for the 2017 financial year review, Supervisors Mr Duncan and Ms Mouat had commented that Mr Macklin, ‘needs to show improvement when it comes to respecting others’.

[233] Mr McNamara stated that he considered it appropriate for Mr Macklin’s employment to be terminated in all of the circumstances, including his current Step 3 – Final Warning, the previous occasions on which he had been spoken to about his behaviour, the nature of his conduct on 28 May 2018 and his responses throughout the investigation and in his show cause response. Mr McNamara stated that although he had regard to Mr Macklin’s earlier disciplinary records in deciding to terminate Mr Macklin’s employment, he only relied on the Step 3 – Final Written Warning of 14 August 2017 in reaching his decision.

[234] Mr McNamara stated that he did not accept Mr Macklin’s explanation that he had been mistaken of his obligations to assess the Downer contractor on 28 May 2018. Mr McNamara considered that Mr Macklin should have understood his obligations after being a trainer/assessor for 17 years. Mr McNamara considered the Mr Macklin should have sought to clarify with Mr Rivers why he thought he was justified in refusing to assess the contractor.

[235] Mr McNamara considered that Mr Macklin held a view against assisting contractor workers, which was the real reason that he had refused to assess the contractor. He considered that Mr Macklin’s explanation that he was mistaken as to his obligations was only raised after meeting with Mr West. Mr McNamara also did not believe Mr Macklin’s explanation that he had not understood that Mr Rivers had directed him to assess the contractor.

[236] Mr McNamara stated that he applied the Guide in reaching his decision to terminate Mr Macklin’s employment, as discussed at [11] – [13] above,

[237] Mr McNamara considered that Mr Macklin’s conduct during the 28 May 2018 incident was deviant because he intentionally and repeatedly chose not to comply with Mr Rivers’ reasonable direction. 102

28 June 2018

[238] On 28 June 2018 Mr McNamara attended a meeting with Mr Macklin, Mr West and Mr Gee. Mr McNamara commenced the meeting by reading aloud the termination letter.

[239] He had read the first page of the termination letter and was part-way through the second page when Mr West interjected and asked that the meeting end immediately. Mr McNamara asked Mr Macklin and Mr West to stay, but Mr West requested a break and both he and Mr Macklin left the room.

[240] Mr West returned after a short time without Mr Macklin and stated that Mr Macklin did not want to continue the meeting. Mr McNamara provided a copy of the termination letter and employee separation documentation to Mr West and asked him to provide it to Mr Macklin.

Concerns about reinstatement

[241] Mr McNamara stated that he would be concerned about Mr Macklin being reinstated to employment with BHP. Mr McNamara stated that he would not feel confident in relying on Mr Macklin to properly complete his duties, including in respect of training other workers and particularly contractors.

[242] Mr McNamara considered that if Mr Macklin were reinstated, it would undermine the behavioural standards set by BHP and would convey a message that workers can refuse directions issued to them by supervisors and that they can escape sanctions for subsequent misconduct where they are already on a final written warning. Mr McNamara considered that Mr Macklin has a pattern of ‘deviant’ behaviour and it would set a poor example if he were reinstated.

Cross examination

● 28 May 2018 incident

[243] Mr McNamara stated that prior to the 28 May 2018 incident he had had no direct dealings with Mr Macklin. At the time of the incident he was seated at his desk in the open-plan Supervisor’s office, approximately 20 metres away from Mr Macklin and Mr Rivers.

[244] Mr McNamara confirmed that he only heard what he had thought to be the ‘tail end’ of the first discussion between Mr Macklin and Mr Rivers. Mr McNamara confirmed that at the time of the conversation, he did not understand Mr Macklin’s statement to be a refusal of a direction given to him by Mr Rivers. 103

[245] Mr McNamara confirmed that he did not hear Mr Macklin say anything to the effect of ‘go out on the grass’, as alleged by Mr Rivers.

[246] It was put to Mr McNamara that he or Mr Rivers should have clarified to Mr Macklin that if he did not comply with the direction to assess the Downer contractor, then there may be consequences as a result of his failure to comply with a direction. Mr McNamara considered that it would not be reasonable make such a clarification given that the 2018 Agreement clearly set out that BHP employees are to follow reasonable and lawful directions from their supervisor. 104

[247] Mr Anderson referred Mr McNamara to Mr Rivers’ statement wherein Mr Rivers recalled that in directing Mr Macklin a second time to assess the Downer contractor, he had said to Mr Macklin words to the effect, “You’ve put me in a bind”. Mr McNamara agreed that he had directed Mr Rivers to return to Mr Macklin and provide clarity as to the direction to assess the Downer contractor. Mr McNamara agreed that the words, “You’ve put me in a bind”, did not provide a clear direction.

[248] It was put to Mr McNamara that it had not been made clear to Mr Macklin by Mr Rivers that he had been directed to assess the Downer contractor, and that failing to assess the Downer contractor would be considered a refusal of duties which may result in consequences to his employment. Mr McNamara did not agree with that proposition; he considered that Mr Macklin had known that he had been directed to assess the Downer contractor through his initial conversation with Mr Rivers.

[249] The following extract is relevant to Mr McNamara’s understanding of whether Mr Rivers had directed Mr Macklin to assess the Downer contractor once or twice during the investigation of the 28 May 2018 incident: 105

Commissioner: If Mr Macklin had agreed on the second occasion would he still have been dismissed?

McNamara: His refusal of duty, in the first instance, would still have been investigated with the taking into account that task had gone ahead. I can't speak of an outcome in that instance because it would be a different investigation, a different set of responses, I guess.

Anderson: I put it to you that you know if he'd carried out that clear direction the second time and he'd been instructed and he got on and did the job, there's no way you would have dismissed him, that's correct, isn't it?

McNamara: As I said, it would have been investigated and I can't talk hypotheticals on something that didn't happen.

Anderson: The outcome could have been different?

McNamara: Potentially.

Commissioner: Having a look at paragraph 81 of your statement, how does that position remain? You say that Mr Macklin was told on two occasions that he was required to RPL the Downer worker, this was part of your consideration in the dismissal. So if he wasn't told on the second occasion that he was required to, do you think that changes your view?

McNamara: Again, I think the focus, through all of the investigation process, was highlighting that there was a refusal of direction and no focus on the two alleged directions.

Commissioner: What if you were working on an incorrect fact, on the second occasion?

McNamara: Again, Commissioner, the second instance wasn't mentioned or highlighted through the process, it was the pure focus of a refusal of duty.

Commissioner: So in your evidence here, at paragraph 81, it is part of your consideration, isn't it, that he was told on two occasions that he was required to RPL the Downer worker. What if that second instance is not true, in fact?

McNamara: Even if that was correct, given the consideration through the Just Culture process, and I think that's highlighted - so what was taken into account, that he was on a step 3 final warning already, he'd been spoken to a number of times, the nature of the violation, his responses and his show cause response. Even though I've highlighted that in paragraph 81, that wasn't relied upon as part of the allegations, the outcome and the subsequent termination. It was all focused on a refusal of duty.

Commissioner: That's what you say today, but that's not part of your evidence?

McNamara: So the considerations that were taken - - -

Commissioner: What are you reading from?

McNamara: Paragraph 76, sorry, of my statement. And I guess section (c), the nature of the violation, was all focused around the refusal of duty, that the discipline was based on refusal of duty. The other considerations that were taken into account, the current step 3, the conversations about the need to act in conformity, and then the Mr Macklin's response.

Commissioner: What work then to paragraph 79 and 81 have then? They're part of your consideration, aren't they?

McNamara: Yes. So it was my understanding that he had been told twice, but it was not a part of what was relied upon in the decision making process.

Commissioner: You didn't make that clear in your statement, that's your evidence today?

McNamara: Yes, I can see that.

Commissioner: How could you, Mr McNamara, if you're only learning today what Mr Rivers says that he said to Mr Macklin?

McNamara: How can I take the second into consideration?

Commissioner: Well, how could you not, because you're only today learning, aren't you, that Mr Rivers may not have given a direction, on the second conversation?

McNamara: And, again, I don't - no matter what was said, in the second instance, it was - yes, what was relied upon was the fact that on the 28th there was a refusal of duty.

Commissioner: Yes. But you believed, up until 10, 15 minutes ago, you believed Mr Rivers' account, when he came back to you and said, "I directed him again and he refused"?

McNamara: Yes.

Commissioner: So it has to have formed part of your decision making, hasn't it? You can't have excluded that, simply because today you learned that Mr Rivers might not have given such a clear direction?

McNamara: I think if the question is whether it would have had a bearing on the ultimate outcome, what was said in that second conversation, I still stand by the fact that, no is the answer, that there was direction given in the first instance.

Commissioner: What you're saying is, the first conversation is enough and - if that's what you're saying that's your evidence, but today you're saying that you didn't have any regard to the second conversation?

McNamara: Well, it wasn't included in the interview process or the Just Culture decision tree.

[250] Mr Macklin’s recollection of his second conversation with Mr Rivers (as extracted above at [34]) was put to Mr McNamara in the interest of fairness. Mr McNamara considered that by words to the effect of, “Come on mate, I really need you to do this, it’d help me out”, Mr Rivers had made a second direction to Mr Macklin to assess the Downer contractor. 106

[251] Further relevant discussion on Mr McNamara’s understanding of the conversation between Mr Macklin and Mr Rivers is extracted as follows: 107

Commissioner: Do the words, "it would help me out", soften what was said earlier, "I really need you to do this." Is it a request, do you think?

McNamara: Commissioner, it probably is a request, as it's written there, but, again, to go back on earlier comment, I wouldn't expect direction to be given as, "Person X, go and do this right now." I think there's varying degrees of what that may look like, dependent on the leader, the operator, a number of factors.

Commissioner: But that's what you asked him to do?

McNamara: To direct him, yes.

Commissioner: A bit more than that, wasn't it?

McNamara: Ask him to do it again.

Commissioner: You, at paragraph 25, say:

“Phil, I want you to direct him to do it again. If he continues to refuse you'll need to make other arrangements.”

So at paragraph 40 of Mr Macklin's statement that constitutes a second refusal, isn't it:

“No, I don't want to train contractors, that will take my job.”

McNamara: Correct.

Commissioner: Right, so the question is, is what Mr Rivers said a direction?

McNamara: Yes.

Commissioner: I've just suggested that it might be a request?

McNamara: But based on the company hierarchy, if that's coming from a line leader, in my eyes, it's a direction.

● Training and Assessment of contractors by BHP employees

[252] Mr McNamara confirmed in cross-examination that in his experience, it was unique that a BHP trainer/assessor was required to train or assess Downer contractors. However, Mr McNamara stated that he had reason to believe that Mr Macklin had trained or assessed contractor workers in his role as a trainer/assessor prior to the 28 May 2018 incident. Mr McNamara stated that as part of the process of developing his statement for these proceedings, he had searched for and found records of Mr Macklin having trained contractors employed by labour hire providers. 108

[253] It was not clear at this point in Mr McNamara’s evidence that he understood the distinction used within the workplace between contractor employees and labour hire employees.

[254] Mr Anderson referred Mr McNamara to an extract from the show cause letter, where Mr McNamara had stated, “…you have been a trainer and assessor for 17 years and have previously completed assessment and training with contractor and labour hire employees.” Mr Anderson put to Mr McNamara that that statement showed a basis on which Mr McNamara did not believe Mr Macklin’s explanation about his conduct during the 28 May 2018 incident. 109

[255] Mr McNamara acknowledged that Mr Macklin had in his response to the show cause letter specifically stated that he had never before been required to train a Downer contractor or any contractor. Mr McNamara confirmed that he had not attempted to find records of Mr Macklin having trained a contractor in the course of his employment until after Mr Macklin’s termination. 110

[256] In answering questions from me, Mr McNamara confirmed that in the course of preparing his statement, he had become aware that in the 12 months preceding Mr Macklin’s dismissal, he had trained or assessed only three BHP or labour hire employees, and no contractors. Mr McNamara confirmed his understanding that that number was significantly less than the number of trainings or assessments conducted by other trainer/assessors.

[257] In cross-examination Mr McNamara was shown his handwritten diary note of 29 May 2018 where he had written:

“I heard part of the discussion between Phil Rivers and Greg, and heard Greg repeatedly say that he would hand in his trainer/assessor certificate if that is what we want him to do.”

[258] In cross-examination Mr McNamara agreed that is not what he heard Mr Macklin say to Mr Rivers, in that Mr Macklin had not repeatedly said it. 111

● Mr West’s absence from the meeting of 31 May 2018

[259] On 30 May 2018 Mr McNamara discussed with Ms Mouat arranging for Mr Macklin to attend the proposed meeting of 31 May 2018. Mr McNamara recalled that Ms Mouat had said to him that Mr Macklin had originally sought Mr Grieve to attend the meeting, whereupon Ms Mouat had said to Mr Macklin that Mr Grieve was not available and he should contact an alternate person. Ms Mouat said that Mr Macklin had suggested Mr West attend the meeting.

[260] Mr McNamara conceded that there had been confusion about arranging for Mr West’s attendance at the meeting of 31 May 2018. Mr McNamara stated that that confusion arose in the circumstances that a nominated employee representative, Mr Grieve, was not available to attend the meeting and Mr Macklin’s alternative nominated employee representative, Mr West, was not contacted.

[261] Mr McNamara did not disagree that Mr Macklin had requested that it be arranged by BHP for Mr West to attend the meeting of 31 May 2018 as his employee representative.

[262] Mr McNamara stated after he had discussed the issue with Mr West at the meeting of 1 June 2018, he had clarified with BHP’s HR department the obligation under the 2018 Agreement to consult with employee representatives about the time of meetings with employees. Mr McNamara confirmed that he understood that Mr West’s position regarding the meeting of 31 May 2018 had been correct prior to Mr Macklin’s dismissal.

[263] Mr Anderson put to Mr McNamara that there had been a subsequent occasion where Mr McNamara had not consulted with Mr West before proposing to hold a meeting with an employee. Mr McNamara stated that the meeting in that case had been rescheduled so that Mr West could attend. Mr McNamara clarified that he had been advised to reschedule the meeting by BHP’s HR department.

● Decision to stand Mr Macklin down from employment

[264] In cross-examination, Mr McNamara agreed that there had been some confusion around contacting Mr West for the meeting of 31 May 2018. Mr McNamara considered that the issue had been resolved by rescheduling the meeting of 31 May 2018 to 1 June 2018.

[265] Mr McNamara stated that Mr Macklin was stood down from his employment on 31 May 2018 due in part to the fact that BHP had been ready to present allegations to him at the meeting of 31 May 2018, which in the circumstances had not proceeded in the absence of Mr West. 112

[266] Mr Anderson referred Mr McNamara to his own handwritten notes of a discussion he had had with Ms Howell to take advice on how to proceed following the 28 May 2018 incident and of his discussion with Mr Macklin and Mr Rivers later that same day. Mr McNamara had stated that Ms Howell had recommended that he should meet with Mr Macklin and:

“Outline my expectations of a T/A within the team and the business impact of someone not fulfilling these. No response required from Greg at this point. Decide on whether Greg remains at work or stood aside based on his reaction”. 113

[267] After meeting with Mr Macklin, Mr McNamara recorded:

“I directed Greg to return to work as normal whilst the investigation is conducted. Greg was not aggressive, no need to stand aside.” 114

[268] It was put to Mr McNamara that he had decided to stand Mr Macklin down from his employment because Mr Macklin had demanded an employee representative for the meeting of 31 May 2018 and had refused to participate in that meeting in Mr West’s absence. 115 Mr McNamara stated that the decision to stand Mr Macklin down from his employment had been made at some time after Mr McNamara’s meeting with Mr Macklin on 29 May 2018, and before the meeting of 31 May 2018, after a decision was made to investigate the 28 May 2018 incident and a set of formal allegations were formulated to put to Mr Macklin.

[269] Mr Anderson asked Mr McNamara to clarify why he left the meeting of 31 May 2018 to amend the ‘stand down’ letter. Mr McNamara replied that he wanted to include additional information in the letter that Mr Macklin had refused to participate in that meeting.

[270] Mr McNamara stated further that it had been his intention to present Mr Macklin with a set of formal allegations in relation to the 28 May 2018 incident at the meeting of 31 May 2018, which he had been unable to do in the circumstances. Mr McNamara’s intention had been to stand Mr Macklin down from his employment after presenting him with formal allegations, on the grounds that an investigation into the allegations had commenced and was continuing at that time. 116

[271] During the course of the hearing a copy of a draft letter was produced that had been sent to Mr McNamara by Ms Howell for Mr McNamara to amend, as appropriate, and which was amended by Mr McNamara to form the ‘stand down’ letter. It was put to Mr McNamara that he had removed from the draft letter a sentence stating, “It is important for you to note that at this stage I have not made any findings”.

[272] It was put to Mr McNamara that by time of the meeting of 31 May 2018, he had already developed a pre-determined view that Mr Macklin had refused a direction from Mr Rivers, and nothing that Mr Macklin could have said would have shaken him from that position. 117 Mr McNamara denied that proposition.

● Employee representative or support person

[273] It was put to Mr McNamara that in his statement he had described the role of Mr Grieve in the meeting of 29 May 2018 as a support person, rather than an employee representative as characterised by Mr Macklin. Mr McNamara stated that he had used the term ‘support person’ in his statement as it had not been clarified to him whether Mr Grieve was participating in the meeting of 29 May 2018 as a support person or an employee representative. 118

● Previous performance reviews

[274] It was put to Mr McNamara that it was common for employees to refuse to sign performance review documents, as Mr Macklin had in relation to his performance review for the 2017 financial year. Mr McNamara agreed that in his experience, it was common for employees to refuse to sign performance review documents.

● Investigation of the 28 May 2018 incident

[275] Mr McNamara agreed that the meeting of 1 June 2018 was the first occasion when Mr Macklin was presented with formal allegations in respect of the 28 May 2018 incident, and the first opportunity he had to respond to those allegations.

[276] Mr McNamara stated that it had been considered between himself and BHP’s HR department whether Mr McNamara should conduct the investigation or another BHP employee, given that Mr McNamara had personally witnessed part of the 28 May 2018 incident. Mr McNamara stated that it was decided that there was no conflict of interest in Mr McNamara investigating the matter. 119

[277] Mr McNamara confirmed that the investigation of the 28 May 2018 incident and the subsequent disciplinary process was based on the allegation that Mr Macklin had refused a lawful and reasonable direction to complete a duty of his employment.

[278] Mr McNamara did not consider it relevant that, arguably, Mr Rivers had not given a direction to Mr Macklin through his statement of, “You’ve put me in a bind”. Mr McNamara considered that Mr Rivers had given a direction to Mr Macklin in the first instance, which Mr Macklin had refused to follow. 120

[279] Mr McNamara acknowledged that Mr Macklin did not say much during the meeting of 15 June 2018. Mr McNamara stated that he did not provide a copy of Mr Macklin’s response to the show cause letter to Mr Swanton, who had been present at the meeting of 1 June 2018, wherein Mr Macklin had made a more significant oral response to the allegations put to him.

[280] In answering questions from me, Mr McNamara made the following relevant statements regarding his consideration of Mr Macklin’s oral responses to the allegations presented to him on 1 June 2018 and his written response to the show cause letter on 20 June 2018: 121

Commissioner: Thank you. Mr McNamara, do you think that after reviewing the show-cause response you had more information before you than you did when you left the meeting of 1 June?

McNamara: Yes.

Commissioner: Did you - so on 1 June, we know that there was oscillating oral accounts from Mr West and Mr Macklin?

McNamara: Yes.

Commissioner: But he's on the hop, isn't he, when he's responding to your investigation questions, isn't he?

McNamara: On the hop, sorry?

Commissioner: Well, you're asking him something and he's responding orally?

McNamara: Yes.

Commissioner: Or Mr West is - on his behalf?

McNamara: Correct.

Commissioner: That's on the hop, isn't it? Do you understand that expression?

McNamara: I don't, sorry.

Commissioner: You don't? Right - it's on the run?

McNamara: Yes.

Commissioner: On the run?

McNamara: Yes, got that.

Commissioner: Okay, thank you. Now, isn't it a far better position for an employee to be in if they're being asked to respond to an investigation if they have written allegations made to them to which they can respond?

McNamara: There's more of an opportunity to form a response, yes.

Commissioner: So you've determined following the meeting on 1 June - by 8 June you've concluded that on the basis of the responses provided on 1 June that the behaviour is deviant?

McNamara: Yes.

Commissioner: But if all the allegations were put in writing and Mr Macklin had been given the opportunity to have time to formulate a response, his response would put him in a better position, wouldn't it, than just the oral, on-the-run opportunity?

McNamara: Yes, but there is potential for influence of external factors that would creep into the scope of the investigation.

Commissioner: Are you concerned that his responses could be infected?

McNamara: If there is a written list of allegations given to someone for their response as part of an investigation, yes.

Commissioner: You want a raw response, do you, without the ability for influence or infection by others?

McNamara: Yes, and the opportunity to discuss responses at the time of the interview.

Commissioner: Right, so you formed the view on 8 June that the behaviour was deviant?

McNamara: Yes.

Commissioner: You've completed the Just Culture tree. You then have the response on 20 June. Do you go and revisit your Just Culture decision?

McNamara: Yes.

Commissioner: How do you do that?

McNamara: Upon receipt of the show-cause letter, the response is viewed as a whole in combination with the investigation itself and an outcome reached from there.

Commissioner: Yes but did you go back to the Just Culture form in light of the written response and challenge yourself again and say, "Where does this behaviour lie"?

McNamara: It was definitely all reviewed together, again, with the show-cause response upon receipt of that.

Commissioner: You didn't complete a second Just Culture form, did you?

McNamara: No.

Commissioner: You formed a view on 8 June that it's deviant and you haven't moved from that position. Have you formally challenged yourself, having a look at the form and what possible - because it's at this point that it's very clear, Mr Macklin is saying it's a mistake and the form certainly provides for human error on mistakes. Have you sat down and challenged yourself?

McNamara: Yes, and I believe it was still deviant behaviour based on Mr Macklin's period of time with the company and his known obligation to follow lawful and reasonable direction and also his obligation as a trainer and assessor.

Commissioner: Did you pull out the tree and ask yourself, "Is this unintentional mistake or is it still intentional violation deviant"?

McNamara: I can't recall specifically reviewing and formally reviewing the tree itself but upon receipt of the show-cause the entire investigation and Just Culture was reviewed then, yes.

Commissioner: You didn't believe him, did you?

McNamara: No.

Commissioner: So that is the basis, isn't it, that you didn't accept that he had made a mistake? Did you think he was being worded up by Mr West?

McNamara: Yes.

Commissioner: Have you before today ever expressed that opinion, that you think Mr West was giving him a convenient out?

McNamara: The response was given that the allegation was substantiated.

Commissioner: But you've said that you haven't - in the termination letter - where is that, please, parties?

…

Commissioner: Yes, in the second-last paragraph you say, "You have failed to provide satisfactory responses." That is all you say as to your reasoning as to why you don't accept the responses given?

McNamara: So his obligations as an employee and a trainer and assessor, yes.

Commissioner: But you say he's failed to provide satisfactory responses. You don't say why. I mean, this - it's a different matter but in this Commission I can't just say, "I find A or B." I have to give reasons?

McNamara: Yes.

Commissioner: You haven't given reasons, have you? You simply said that he hasn't provided you satisfactory responses. You haven't said why, what you do and don't accept. You haven't said, "I disbelieve you"?

McNamara: Correct.

Commissioner: But that's what you were feeling, wasn't it?

McNamara: Yes.

Commissioner: You thought that he had a true belief and a conscientious objection to training contractors at the time of the refusal, is that right?

McNamara: Yes.

Commissioner: You didn't believe that upon discussing with Mr West he had been enlightened to his error. You thought, did you, that Mr West was helping to save him?

McNamara: Correct.

Commissioner: If you had the meeting on 1 June and you then met again on 15 June to issue the show-cause letter, might you have indicated that, "You said this on 1 June but I hold reservations about" - - -?

McNamara: Yes, that is in the - the other show-cause letter. Do you know what number that is, sorry?

…

McNamara: On the second page, Commissioner, the paragraph under the title, “Outcome show cause” - - -

Commissioner: Yes? - - -

McNamara: "I've taken all relevant matters related to this investigation into account, including your statement and responses during the investigation. In particular I have taken into account your response that you said that you had been advised by Simon West that you were not required to assist in the assessment and training of contractor and labour-hire employees. I do not accept this explanation as you have been a trainer and assessor for 17 years and previously completed assessment."

Commissioner: Okay, so you're putting him on notice that you didn't believe that?

McNamara: Correct.

Commissioner: So then when he writes on 20 June you still don't believe it?

McNamara: Correct.

Commissioner: So it did form part of your foundation for deciding to terminate, is it, that you thought that that wasn't true?

McNamara: Correct.

Commissioner: You didn't put it in the termination letter?

McNamara: No.

Commissioner: Is it anywhere in your statement?

McNamara: That I don't believe his response was the truth?

Commissioner: Yes - well, just going back to your second page of GM03 - - -?

McNamara: Yes.

Commissioner: - - - and what was put to you earlier, that you might be factually incorrect about Mr Macklin having trained contractors as opposed to labour-hire employees, now that you properly - do you properly understand the distinction today?

McNamara: Yes.

Commissioner: Well, do you think that you might have been wrong about your conclusion that you made on 14 June in that paragraph there?

McNamara: It's possible, yes - if you've got my statement, paragraph 79 - - -

Commissioner: Yes?

McNamara: - - - there is, "not accept Mr Macklin's explanation for his conduct."

Commissioner: You say (a), "in assessing workers, including those who are not employed by BHP Coal"?

McNamara: Yes.

Commissioner: That's joining together labour hire and contractors, isn't it?

McNamara: Yes.

Commissioner: So when - I asked you earlier about when did you look at how many people Mr Macklin had trained, did you say that was post-dismissal, wasn't it, when you discovered there were three people in the last 12 months?

McNamara: Yes.

Commissioner: That was post-dismissal - all right, thank you. But having a look at that show-cause letter you accept that you might have been wrong with the information that you know now, that Mr Macklin hadn't trained contractors?

McNamara: Yes.

[281] It was put to Mr McNamara that other people within BHP besides himself had been involved in the decision to terminate Mr Macklin’s employment, particularly, personnel from HR and Mr Gee. Mr McNamara agreed that he had reviewed his findings through the Just Culture process with Mr Gee and Mr Gee had been in alignment with Mr McNamara’s decision to terminate Mr Macklin’s employment. 122 Mr McNamara stated that BHP’s HR department had advised him of what they thought was an acceptable or reasonable outcome.123 Mr McNamara considered that he was the ultimate decision-maker in the matter.

[282] Mr McNamara also recalled that he provided a copy of Mr Macklin’s response to the show cause letter to Mr Edmunds, who had been in attendance at the meeting of 15 June 2018 when the show cause letter was given to Mr Macklin. He received Mr Edmunds’ opinion on Mr Macklin’s statements during the meeting of 15 June 2018 and the content of his response. 124

[283] Mr McNamara could not recall having asked HR for a copy of Mr Macklin’s personnel file, and had not attempted to locate a copy himself. He agreed that he had received copies of Mr Macklin’s prior discipline records from HR. It was put to Mr McNamara that HR had only provided him with ‘the bad stuff about Mr Macklin – nothing good’. Mr McNamara stated that he was not aware of Mr Macklin having received any commendations or similar positive treatments in the course of his employment with BHP. 125

[284] Mr McNamara confirmed that during the Just Culture process and in considering the appropriate disciplinary action to take against Mr Macklin, he had considered that Mr Macklin’s behaviours during the 28 May 2018 incident were similar to behaviours result in Mr Macklin’s previous warnings. Mr McNamara confirmed that it was not put to Mr Macklin during the investigation of the 28 May 2018 incident that those behaviours were similar. 126

[285] He stated that he had considered a possible outcome from the Just Culture process that Mr Macklin could have been issued with a further Step 3 warning. He decided against issuing a further Step 3 warning in light of Mr Macklin’s existing Step 3 warning, his responses throughout the investigation and in response to the show cause letter, and the fact that Mr Macklin had been spoken to previously regarding acting in accordance with the Charter Values. 127

[286] Mr McNamara agreed that after he had determined that Mr Macklin’s behaviour during the 28 May 2018 incident had been deviant, Mr Macklin did not have an opportunity to persuade Mr McNamara that his conduct was not deviant. 128

[287] It was put to Mr McNamara that his conclusion that Mr Macklin’s behaviour had been deviant was based in part of the understanding that Mr Macklin had twice refused a direction by Mr Rivers to assess the Downer contractor, and that but for the determination that Mr Rivers had directed Mr Macklin twice, his behaviour may not have been categorised as deviant. Mr McNamara considered that it was ‘likely’ that Mr Macklin’s behaviour still would have been categorised as deviant. 129

[288] Mr McNamara confirmed that a finding that an employee has engaged in deviant behaviour does not necessarily mean that that employee must be dismissed. 130

● Views on reinstatement

[289] Mr McNamara stated that he continued to hold a view that Mr Macklin should not be reinstated to his employment. Mr McNamara held the view that Mr Macklin considered it acceptable behaviour to form his own opinions about the scope of his duties of employment and refuse direction from a supervisor where Mr Macklin considered that the directed task fell outside of his duties of employment and without giving a reason for his refusal.

[290] It was put to Mr McNamara that Mr Macklin had given Mr Rivers reasons why he had refused to assess the Downer contractor, by saying words to the effect, “I’ll train Workpac because they work for BMA, but I won’t train Downer because they work for Downer”. Mr McNamara considered that on the information known to him, Mr Macklin had not clarified his position to Mr Rivers and had merely made a blanket refusal to assess the Downer contractor.

[291] Mr McNamara accepted that workers had been reinstated to the Goonyella mine before, and he was not aware of any suggestion that behavioural standards had been affected following those reinstatements.

[292] The following scenario was put to Mr McNamara; if Mr Macklin were reinstated but he undertook to not seek reappointment as a trainer/assessor, would that allay some of Mr McNamara’s concerns about his reinstatement? Mr McNamara stated that such an undertaking may possibly allay some of his concerns but not all of his concerns.

Evidence of Mr Phillip Rivers

[293] Mr Rivers was first employed by BHP as an Operator/Step-Up Supervisor on 9 June 2013. Mr Rivers commenced in his present role as Supervisor – Coal Mining on 22 November 2017. Mr Rivers stated that he is currently responsible for supervising ‘D Crew’ at the Goonyella mine, which he has supervised since 10 October 2018.

28 May 2018 incident

[294] On 28 May 2018, four workers employed by Downer had been engaged to assist ‘A Crew’ with driving haul trucks out of the Goonyella mine site pit. To Mr Rivers’ knowledge, workers employed by Downer had not been engaged to directly assist ‘A Crew’ in coal mining work on any occasion prior to 28 May 2018.

[295] Mr Rivers was aware that the Downer contractors were competent to operate the haul trucks, but that their competency needed to be assessed and approved by a qualified trainer/assessor of BHP before they could perform the work allocated to them. Mr Rivers stated that he was responsible for organising the assessment of the Downer contractors.

[296] The process for assessing the competency of a Downer worker is the same as the process for a BHP employee or any other worker. Mr Rivers understood that the assessment process would take no more than a few hours. 131 He had decided that Mr Macklin would be allocated the task of training one of the Downer contractors. Mr Macklin had been available to assist with the task without disruption to his assigned work or work assigned to others.

[297] On the morning of 28 May 2018 Mr Rivers contacted Mr Macklin by the two-way radio system and requested that he attend upon Mr Rivers in the Supervisor’s office following his crib break, to which Mr Macklin agreed.

[298] He met with Mr Macklin at approximately 11.00am. Mr Rivers recalls that he and Mr Macklin had a discussion in words to the following effect: 132

Rivers: Greg, I want you to RPL a truck driver from Downer.

Macklin: No, I won’t do that.

Rivers: Why? What’s the issue?

Macklin: I will not train contractors. If you force me, I will sign my training paperwork away.

Rivers: I don’t understand the issue. Why won’t you do it?

Macklin: I know that if the employees go out on the grass, the company will get the contractors to do our work.

Rivers: Greg, you’ve trained Workpac people. What’s the difference between a Downer and Workpac operator?

Macklin: Workpac works for BMA. Downer workers work for Downer and not BMA.

[299] Mr Rivers considered that he had given a clear direction to Mr Macklin to assess the Downer contractor, to which Mr Macklin had refused. Mr Macklin left to take his crib break. Mr Rivers decided to speak to Mr McNamara about his discussion with Mr Macklin.

[300] Mr Rivers attended upon Mr McNamara in the Supervisor’s office. Mr Rivers stated that Mr McNamara had overheard his discussion with Mr Macklin and his refusal to assess the Downer contractor. Mr Rivers stated that he explained his conversation with Mr Macklin to Mr McNamara.

[301] After discussing the matter with Mr McNamara, Mr Rivers attended upon Mr Macklin in the crib break room while Mr Macklin was still on his crib break. Mr Rivers recalled a further discussion between him and Mr Macklin regarding the assessment of the Downer contractor.

[302] In examination-in-chief and following clarification in cross-examination, Mr Rivers agreed that the likely course of the second conversation between him and Mr Macklin during the 28 May 2018 incident was to the effect: 133

Rivers: Since you won’t do the RPL I’ll have to get someone else.

Macklin: That’s right, I won’t do the RPL.

Rivers: You’ve put me in a bind, I’ll need to get someone else to RPL the worker now and you’ll have to go and do truck operations.

[303] Mr Rivers stated that after Mr Macklin again refused to assess the Downer contractor, Mr Rivers was forced to make alternative arrangements for the assessment of the Downer contractor. Mr Rivers directed another trainer/assessor, Mr Troy Hahn, who had been engaged in a ‘high priority job’ to assess the Downer contractor. A third worker had replaced Mr Hahn, and Mr Macklin replaced that third worker.

[304] Later on 28 May 2018, Mr Rivers had been instructed by Mr McNamara to complete a statement regarding the 28 May 2018 incident. In his written record of the 28 May 2018 incident, Mr Rivers stated that by Mr Macklin’s reference to ‘on the grass’, he had understood him to be referring to strike action. 134

29 May 2018

[305] At approximately 4.30pm on 29 May 2018 he approached Mr Macklin at approximately and asked him to attend a meeting with Mr McNamara and himself in the Supervisor’s office.

[306] Mr Macklin asked him to arrange for Mr Grieve to attend the meeting. Mr Rivers stated that he left to arrange for Mr Grieve to attend the meeting of 29 May 2018.

[307] Mr McNamara did most of the speaking during the meeting of 29 May 2018, and Mr Rivers mostly listened. He recalled that Mr McNamara stated that the meeting had been convened in relation to Mr Macklin’s refusal to follow a direction from a supervisor.

[308] Mr Grieve responded on Mr Macklin’s behalf that Mr Macklin had been ‘burnt out from too much training’ and that he had had a ‘brain snap’ in refusing to follow Mr Rivers’ direction. Mr Rivers recalled that Mr Grieve had said that Mr Macklin would prefer to focus on performing his role as an Operator and not to perform the trainer/assessor role anymore.

[309] Mr Rivers had no further involvement in the investigation or dismissal of Mr Macklin after the meeting of 29 May 2018.

Cross-examination

[310] Mr Rivers agreed that there had been a discussion between him and Mr McNamara following the 28 May 2018 incident in which Mr McNamara had asked him to make a written record. He produced notes of his recollection of the 28 May 2018 incident of his own volition, and confirmed with Mr McNamara that he would make a written record.

[311] Mr Rivers stated that after his first conversation with Mr Macklin during the 28 May 2018 incident, Mr McNamara had said to him words to the effect, “What was all that about?”. Mr Rivers stated that although he and Mr McNamara had discussed reiterating the direction to Mr Macklin to assess the Downer contractor, Mr Rivers had already intended to reiterate the direction to Mr Macklin.

[312] Mr Anderson referred Mr Rivers to his handwritten record regarding the 28 May 2018 incident that Mr Rivers had produced following that incident. Mr Rivers acknowledged that nowhere in his written record did he state that a second direction had been given to Mr Macklin to assess the Downer contractor.

[313] Mr Rivers stated that he considered that a second direction had been given to Mr Macklin, partly on the basis that he recalled that Mr Macklin had said words to the effect, “I won’t do that” in his second conversation with Mr Macklin on 28 May 2018. 135

[314] Mr Rivers agreed that in the course of the 28 May 2018 incident he did not say to Mr Macklin words to the effect that Mr Macklin was ‘obligated’ to assess the Downer contractor. He did not refer to the 2018 Agreement. He did not say to Mr Macklin that he had been given a lawful and reasonable direction to assess the Downer contractor and he was required to comply with that direction. He did not mention to Mr Macklin any potential consequences from refusing the direction.

[315] It was put to Mr Rivers that he had not been particularly forceful in telling Mr Macklin that he had to do the task. Mr Rivers considered that he had asked Mr Macklin to assess the Downer contractor.

[316] Mr Rivers was adamant in cross-examination that during the 28 May incident Mr Macklin had said the words, “I know that if the employees go out on the grass…” Mr Rivers was certain that Mr Macklin had used the word ‘grass’ in the course of their conversations. Mr Rivers confirmed that he had understood at the time that Mr Macklin had considered the reference to ‘grass’ to mean strike action. 136

[317] Prior to 28 May 2018, he had never been involved in a circumstance where a Downer contractor worker was to be trained or assessed by a BHP employee. 137 Mr Rivers stated that at the time of the 28 May 2018 incident, he had not understood there to be a difference between labour hire workers and contractors working at the Goonyella site. Mr Rivers acknowledged that he had come to appreciate that there was a difference between labour hire workers and contractors.

[318] He attended a meeting on 29 May 2018 with Mr Macklin, Mr Grieve and Mr McNamara. Mr Rivers stated that he had arranged for Mr Grieve to attend the meeting as Mr Macklin’s employee representative. He understood that BHP was obliged to arrange for employee representatives to attend meetings.

[319] Relevant to what Mr Rivers would have done regarding Mr Macklin’s refusal to assess the Downer contractor, Mr Rivers responded that he probably would have carried on, he would have made a diary note, but he would have carried on.

Reinstatement

[320] Mr Rivers was overseas when the investigation took place, and the decision was made to dismiss Mr Macklin. On his return to work he was informed that Mr Macklin had been dismissed.

[321] In cross-examination he agreed that he had not been shown a copy of the show cause response prepared by Mr Macklin, nor was he aware that Mr Macklin had apologised for his refusal of the direction given to him by Mr Rivers. He had not been informed that Mr Macklin had made a commitment to train and assess contractors in the show cause response, and he was not aware that Mr Macklin had explained his refusal on a mistaken belief that he held at the time.

[322] Mr Rivers agreed that Mr Macklin had once assessed him for competency on a wheel dozer. Mr Rivers agreed that Mr Macklin assessed him in a professional manner, and that he was a skilled and experienced employee.

[323] Mr Anderson asked Mr Rivers to assume that Mr Macklin had made a very clear commitment that he would follow any directions to train contractors in the future, and given what he had just been told regarding Mr Macklin’s responses, would Mr Rivers have any concern working with Mr Macklin again? Mr Rivers responded, “My only concern it would just be uncomfortable knowing, you know, that we had to go through this process, but yes, that would be my concern.” 138

[324] Mr Rivers acknowledged that Mr Macklin had on occasion raised safety issues regarding conduct at the Goonyella mine, including in relation to vehicles speeding inside the mine area. Mr Rivers agreed that it would be appropriate for Mr Macklin to notify a person by way of the two-way radio system if he witnessed a safety issue occurring. Mr Rivers denied that swearing was common at the Goonyella mine site and particularly in the use of the two-way radio system. 139

Late admission of evidence

[325] On the third day of hearing, Mr Anderson sought to tender a letter from Mr West to BHP dated 29 March 2016 relevant to the warning given to Mr Macklin over the 2016 bus seat belt incident.

[326] I reviewed the letter during the hearing and suggested that the letter prepared by Mr West, sent on Mr Macklin’s behalf disputing the warning issued for the bus driving incident was not at all helpful to Mr Macklin. In it, Mr West makes the following representations or pleadings on Mr Macklin’s behalf:

“….[name] at our meeting on the 18th March Greg was open and honest about the way he comes across to people who don’t know him. Greg said that in recent years he had made a concerted effort to “tone down” the way he speaks to people generally.

Greg told you of his surprise when I informed him the bus driver had been upset by his comments and demeanour. Greg immediately penne the letter of apology to the bus driver, given to you at our meeting. Greg in no way intended to insult, offend or disrespect the bus driver.

In this instance a disciplinary letter on Greg’s file will achieve nothing constructive. It will not help Greg understand how at times his undisciplined way of speaking can be uncomfortable to some, and have an even greater effect on others……”

[327] Despite my views as to the helpfulness or otherwise of the evidence, Mr Anderson wished to have the letter admitted into evidence. I allowed it.

Evidence of Ms Rosemary Shanks

[328] Ms Shank’s evidence in respect of this matter was limited to her involvement with Mr Macklin during the training course conducted from 29 – 31 May 2017. As stated above, Ms Shanks was not required cross-examination at the hearing of this matter.

[329] Ms Shanks stated that she conducted the training course from 29 – 31 May 2017 at Sharp’s premises located in Moranbah, QLD. There were 11 candidates participating in the training course. A subset of those candidates were employed by BHP, including Mr Macklin. The purpose of the training was to provide knowledge and skills relevant to workplace training and assessing generally, and not in relation to any particular industry. 140

[330] Prior to commencing training with Sharp and as a condition of attending training, all candidates are provided with a copy of a student handbook, which included behavioural expectations of candidates. If a candidate breaches the student handbook, a candidate’s training can be cancelled, to be rescheduled with the applicable employer. 141

[331] Ms Shanks stated that from the outset of the training course on 29 May 2017, Mr Macklin made it very clear to Ms Shanks that he did not want to be at the training course. Mr Macklin said to Ms Shanks words to the effect that he had been a trainer/assessor for years, that it was ridiculous that he had to retrain and that he considered he should be doing ‘the one day refresher course instead’. 142

[332] Ms Shanks observed that Mr Macklin sat in an aggressive manner, leaning back in his chair with his arms crossed. Ms Shanks observed Mr Macklin to exhibit aggressive body language throughout the session on 29 May 2017. Ms Shanks observed that Mr Macklin often stated his opinion forcibly, showed disinterest or disrespect to the opinions of other candidates and Ms Shanks herself, used profanities excessively and spoke over top of others. Ms Shanks stated that Mr Macklin made several derogatory comments regarding female participation in the workforce and provision of breastfeeding facilities throughout the course of the day. 143

[333] At the end of the session of 29 May 2017, Ms Shanks set a task for the candidates to complete that would be reviewed at the commencement of the session on 30 May 2017.

[334] On 30 May 2017, Mr Macklin arrived for training having not completed the task set the day before. Ms Shanks stated that Mr Macklin exhibited similar but escalated behaviour as he had exhibited on 29 May 2017. Mr Macklin continuously made comments to the effect of “this is not how things are done in mining” and referred to set tasks and to the training itself as “bullshit”. 144

[335] Ms Shanks stated that during the session on 30 May 2017, Mr Macklin challenged another Sharp trainer/assessor observing the session, Mr Roy Paton, as to whether he had ‘any real mining experience’. Ms Shanks reminded Mr Macklin that the training was not specific to mining. 145

[336] Ms Shanks stated that during the session on 30 May 2017, she asked Mr Macklin to step out of the room with her and Mr Paton and entered a vacant classroom. Ms Shanks asked Mr Macklin to sit down, but Mr Macklin said that he would prefer to stand. Ms Shanks observed Mr Macklin to be standing with his arms folded and exhibiting a confrontational manner. Ms Shanks stated that Mr Macklin stood over the top of her and she felt concerned for her physical safety.

[337] Ms Shanks stated that she and Mr Paton attempted to discuss Mr Macklin’s behaviour with him. Ms Shanks recalled that when Mr Paton spoke, Mr Macklin shoved his arm in Mr Paton’s face and told him to “shut up”. Ms Shanks thought that Mr Macklin was going to punch Mr Paton and she stood between them. Ms Shanks stated that she informed Mr Macklin that he had a choice of staying and completing the training and complying with Sharp’s policies or he could leave and his training would be rescheduled. Mr Macklin left the room but returned to the main training room approximately 10 minutes later. 146

[338] Ms Shanks stated that for the remainder of the session on 30 May 2017 and for the session of 31 May 2017, Mr Macklin completed all assessments as required and was compliant with the handbook. Ms Shanks stated that she decided not to cancel Mr Macklin’s training for breaches of the student handbook as he returned to the training on 30 May 2017 and was not disruptive for the rest of the training. Mr Macklin was assessed as competent in the four units of the Training Course, although Ms Shanks stated that she did not consider Mr Macklin to have actually improved his skills, knowledge, behaviours or attitudes as a trainer/assessor and towards updated legislative standards. 147

[339] Following the training and on the advice of other employees of Sharp, Ms Shanks determined to raise Mr Macklin’s behaviour during the Training Course to BHP. On 1 June 2017, Ms Shanks sent an email to Ms Ashleigh Ruddock-Hugo, Administration Officer of Sharp, recording Mr Macklin’s behaviour during the Training Course as set out above at [82]. Ms Shanks stated that she was informed by Ms Ruddock-Hugo that Ms Shanks’ record of Mr Macklin’s behaviour had been forwarded to BHP.

Legislation and applicable case law

[340] Section 385 of the Act sets out when a person will have been unfairly dismissed and states:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

[341] Section 387 of the Act sets out the criteria that must be taken into account in considering whether a dismissal was ‘harsh, unjust or unreasonable’ and states:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[342] It is not contested that Mr Macklin was dismissed from his employment on 28 June 2018. Mr Macklin’s position had not been made redundant and the Small Business Fair Dismissal Code does not apply. If Mr Macklin’s dismissal was harsh, unjust or unreasonable, he will have been dismissed unfairly.

Submissions by Mr Macklin

[343] In final written submissions for Mr Macklin, it was submitted that Mr Macklin’s dismissal was unfair as he had not been dismissed for a valid reason and in the alternative, his dismissal had been harsh, unjust and unreasonable.

[344] Mr Macklin seeks reinstatement to his former position with continuity of service being maintained. Mr Macklin also seeks an order of back pay.

[345] Mr Macklin submitted that at the time of the 28 May 2018 incident he had an honestly-held belief that he was not required to assess contractor employees in his role as a trainer/assessor, and he was not obligated to assess the Downer contractor. Mr Macklin submitted that he had never before been asked to train or assess a contractor.

[346] It was submitted that Mr Rivers had not said to Mr Macklin in unequivocal terms that he was obligated to assess the Downer contractor, or that there might be consequences to his employment if he continued to refuse to assess the Downer contractor.

[347] Mr Macklin submitted that the investigation and the Just Culture process completed by Mr McNamara was flawed. It was submitted that Mr McNamara had not believed Mr Macklin’s response to the allegations against him. Where Mr Macklin had said that he understood that he had been mistaken as to his obligations under the 2018 Agreement, this was not believed by Mr McNamara, and Mr McNamara never provided reasons as to why he did not believe him.

[348] Mr Macklin submitted that Mr McNamara had reached a foregone conclusion to dismiss him before considering his responses to the allegations against him.

[349] Mr Macklin made submissions in respect of each of the criteria set out in s.387 of the Act below.

s.387(a) - valid reason

[350] It was submitted that the gravity of the conduct was so out of proportion with the decision to terminate so as to be capricious, spiteful and prejudiced. Mr Macklin’s refusal to comply with a request was made in circumstances where it was not put as an explicit direction and there was no warning as to any potential consequences. Following the incident he was sent back to work to perform other duties, and did so for the remainder of that shift and all of the next shift.

[351] Mr Macklin submitted that the incident did not relate to safety. It was not repeated, and it did not result in any significant inconvenience to BHP.

[352] Mr Macklin contends that the evidence is clear that he held an honest mistaken belief, and he had never been asked to perform such a task before. Once he was corrected as to his obligation, he committed to provide training and assessing for contractors in the future.

[353] It is submitted that the dismissal was prejudiced because Mr Macklin was not believed when he asserted that he held a mistaken belief; nor did Mr McNamara make inquiries as to his explanation and mistaken belief. Further, in the course of the investigation and in deciding to dismiss, BHP was incorrect in that there was no difference between labour hire and contractors.

[354] While Mr Macklin was dismissed with payment in lieu of notice, he was in fact, dismissed for purported serious misconduct. It is submitted that his actions did not amount to serious misconduct or conduct in any way comparable to serious misconduct.

[355] It is submitted that the decision to terminate was inappropriately infected by Mr McNamara’s control of the investigation and erroneous findings he made that were not based on the facts that were reasonably ascertainable. This included an understanding by Mr McNamara that any confusion needed to be eliminated through the issuing of a clear direction by Mr Rivers, which never eventuated.

[356] Mr Macklin submitted that Mr McNamara knew this was important and either he proceeded on the basis that it had been done as “instructed”, or that his evidence is not believable given the conflict between his and Mr Rivers’ evidence as to the purported second direction and the conversations between the two of them.

[357] It is submitted that when viewed as a whole, objectively, the incident should not have occurred but was clearly not of a nature so as to warrant dismissal. This is particularly so in relation to an employee of 38 years’ service.

[358] Mr Macklin submitted that any direction put to him was not put in unequivocal terms. He acknowledged that he did not comply with the direction given by Mr Rivers in the first conversation. He had never been asked to perform that duty previously. It is submitted that if BHP was contemplating action, including dismissal, it should have been made plain to Mr Macklin that he was obligated to perform the task.

[359] It was submitted that the instruction was unique and without precedent, and Mr Macklin should have been told, “You are employed to perform this work and you have to do it”. Given there is an entitlement in the 2018 Agreement to allow BHP to stand employees down without pay in such circumstances, this entitlement should have been utilised. It was submitted that failing to utilise the provision, and then dismiss Mr Macklin was capricious.

[360] It was submitted that Mr McNamara, the decision maker, proceeded on the basis that the direction was put in clear terms, on repeated occasions, and in a way which removed any doubt as to whether there was an obligation on Mr Macklin to perform the task. However, that was all incorrect and had not in fact occurred.

[361] It was submitted that Mr Macklin’s responses during the investigation were appropriate, accurate, and honest. This included advising the respondent that he did not at the time understand that he had to perform the work, and that was in part due to his never having been asked to provide such training to contractors.

[362] It is conceded that Mr Macklin did not want to train contractors. He submitted that is unremarkable and understandable in light of the changes at the mine over the last several years. However, it is submitted that despite not wanting to do so, Mr Macklin clearly would have done so regardless, in a professional manner, if he had not held the genuine mistaken belief. He said as much in his show cause response, prior to the termination, and there is no reason to disbelieve him.

[363] Mr Rivers gave evidence to the effect that Mr Macklin sought to provide an explanation as to the distinction between labour hire and contractors. Even if Mr McNamara and Ms Mouat have attempted to adduce evidence to the effect that they are the same, this is frankly unhelpful and should not be accorded weight. The evidence is clear that a distinction existed, including importantly the fact that Downers workers were not part of the crews as labour hire workers were.

[364] Mr McNamara concluded that Mr Macklin was being disingenuous about his belief that he did not have to train contractors. Despite the evidence, Mr McNamara concluded effectively that Mr Macklin simply did not train the contractor because he did not want to, or in other words, he did not believe that Mr Macklin didn’t believe he had to. Mr McNamara also, without basis, concluded that Mr West had fabricated a response to the allegations. That view was, in the applicant’s submission, prejudiced, spiteful and without reasonable basis. Further, that view held by Mr McNamara was not disclosed during the disciplinary process and no opportunity was provided to respond to it.

[365] Mr Macklin submitted that one of the reasons that Mr McNamara did not believe him was that he had believed that Mr Macklin had made reference to strike action. Mr Macklin submitted that no such reference was made, but in any event, the allegation was not put to Mr Macklin.

[366] Mr McNamara sought to suggest that the investigation proceeded on the basis of the first purported direction. However, it is submitted that the cross-examination of Mr McNamara elicited the reality that the investigation and decision making proceeded on the basis that there had been at least two directions, with the second assumed to have been clear: 148

Anderson: No, but he didn’t hand his ticket in, did he?

McNamara: No

Anderson: He said he would, if pressed, effectively?

McNamara: Yes

Anderson: If the direction were pressed he’d hand his ticket in?

McNamara: Yes

Anderson: He never handed his ticket in, and I put it to you that’s because he was never pressed to carry out the direction, after that point?

McNamara: I wasn’t there.

Anderson: After Mr Rivers came back to you, were you satisfied that the direction had been made clear to Mr Macklin?

McNamara: I had no reason to believe otherwise.

…..

 149Anderson: Which included that Mr Rivers had told you there had been a second direction?

McNamara: Yes.

Anderson: Yes, and the totality of those events, and the refusal, were the subject which – or subject to your deliberations and you ultimately decided to dismiss him, on that basis, on the basis of all of those reasons?

McNamara: Yes

[367] Mr Macklin submitted that the alleged second direction was taken into account; it was assumed by Mr McNamara that Mr Rivers had given the second direction in clear and unequivocal terms. It is clear that the alleged second direction was not put to Mr Macklin in the show cause meeting or the letter, the investigation, or otherwise. That failure in of itself rendered the dismissal unfair.

[368] Mr Macklin submitted that the dismissal, in the context of not being put on notice as to potential consequences, was not for a valid reason.

[369] It is submitted that the investigation and disciplinary process followed by the respondent, and Mr McNamara on the advice of the respondent’s human resources department, was fundamentally flawed and inadequate. The reasons for this include:

(a) Mr McNamara was a witness and should not have been responsible for the investigation, collection of evidence, or the decision making;
(b) The respondent failed to obtain statements from the relevant witnesses in a timely manner, particularly Mr Macklin;
(c) The just culture process was conducted at the wrong time, by the wrong person, and in the absence of Mr Macklin;
(d) There was a complete failure to consider alternatives to dismissal at the appropriate time;
(e) Matters that formed part of the investigation and decision making were not put to Mr Macklin. This included the alleged second direction, a view that Mr West had manufactured a response to the allegations for Mr Macklin, and a view that the previous warning issued to Mr Macklin was related to his more recent conduct;
(f) The process fundamentally failed to have regard to the positive aspects of Mr Macklin’s employment. This is evidenced by human resources providing Mr Macklin only with material that would support termination, and Mr McNamara not making any attempt to review Mr Macklin’s file or have regard to his positive performance and significant skills.

[370] It is submitted that the dismissal was not sound, defensible, or well founded, and on the above submissions, there was no valid reason for the termination.

s.387(b)- whether the person was notified of that reason

[371] The reason for the dismissal was outlined in the termination correspondence. Mr Macklin submitted that BHP failed to describe in a meaningful way how it considered his conduct amounted to a breach of the Charter Values. The conduct concerned an alleged failure to follow a lawful and reasonable direction; it did not relate to being rude, aggressive or other conduct that might invoke concepts of “respect” or “integrity”.

[372] Relevant to the questions put to Mr McNamara and reproduced at [280] – where I asked him about Mr West providing a convenient excuse for Mr Macklin - Mr McNamara formed the view that Mr Macklin was not to be believed, when Mr West was ‘wording him up’. None of this, helping Mr McNamara determine the reasons for the dismissal, was ever put to Mr Macklin.

s.387(c)- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[373] Mr Macklin submitted that because Mr McNamara’s views were not put to Mr Macklin, he was not provided a meaningful opportunity to respond. This included:

(a) not being able to respond to a view held by Mr McNamara, ultimately used in determining to dismiss, that Mr West had fabricated a story for Mr Macklin; and

(b) that Mr Macklin had been untruthful and had not held a mistaken belief and that Mr West has concocted an excuse.

[374] It was submitted that Mr Macklin was provided an opportunity to respond to the allegations contained in the “show cause” letter and did so accordingly. He appropriately accepted and took responsibility in his response.

[375] No allegation was raised during the investigation or disciplinary process with Mr Macklin that he was lying or that Mr West had fabricated a response. These are critical matters, and Mr Macklin submitted cannot be dismissed simply by Mr McNamara asserting that he raised the fact that he did not accept Mr Macklin’s response in the show cause letter. The reasons for this include:

(a) Mr Macklin had no opportunity to persuade Mr McNamara that Mr West had not in fact fabricated the response; and

(b) The reasons provided by Mr McNamara as to why he did not believe Mr Macklin were not true, or at least were not accurate. Mr McNamara did not raise the issue of alleged fabrication, and instead misinformed Mr Macklin that he did not believe his explanation only based on his role as a trainer/assessor in allegedly previously training contractors and labour hire;

[376] Given Mr Macklin never knew the real reasons why Mr McNamara did not believe his explanation, he was never in a position to respond fully.

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

[377] Mr Macklin does not contend that there was an unreasonable refusal to allow him a support person. However, he submitted that substantial unfairness resulted from BHP’s failure to comply with the terms of the Agreement in relation to representation.

s.387(e) - if the dismissal related to unsatisfactory performance by the person- whether that person had been warned about that unsatisfactory performance before the dismissal

[378] BHP found that Mr Macklin had committed a misconduct breach. Yet BHP has sought to rely on previous warnings issued and linking them all to an alleged issue with the Charter Values, and notably “respect”.

[379] It is submitted that Mr Macklin does not have a history of unsatisfactory performance, and if BHP had concerns about Mr Macklin’s communication skills or respect for other workers, those matters could have been addressed in a Performance Improvement Plan under the Agreement. Such a step is contemplated in the event of poor performance reviews by clause 36.7 of the Agreement.

[380] There have been no warnings issued to Mr Macklin on account of unsatisfactory work performance. He has a history of good performance and a positive attitude towards his work and safety and health.

s.387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

s.387(g) - the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[381] Mr Macklin submitted that given BHP is a large organisation with dedicated human resource staff, a dim view should be taken of the investigation and dismissal process followed in this case.

[382] It is submitted that despite its extensive resources, it appears the resources were used simply to assist termination rather than to ensure a complaint process was followed. Assistance was given to Mr McNamara in establishing reasons to support a decision to terminate, as opposed to ensuring all relevant matters were considered prior to reaching a decision. Mr Macklin submitted that Mr McNamara seems to have been provided with a file from HR to be used to justify termination.

[383] Mr Macklin submitted that the lack of consideration given to alternatives, and the failure to consider relevant matters, including his positive service, is more inexcusable given the resources the respondent had at its disposal.

s.387(h) - any other matters that FWC considers relevant

[384] It is submitted that Mr Macklin took responsibility, apologised, expressed regret, and committed to ensuring there would be no repeat of his refusal to assess a contractor. Further, BHP only had regard to matters it considered to be negative.

[385] Mr Macklin contends BHP failed to have proper regard to his length of service and positive performance. It is contended that BHP had little or no regard for the matters raised by Mr Macklin in his show cause response, including:

(a) his extraordinary service to BHP of 38 years. The fact that he had been issued with disciplinary warnings, each of which were for isolated events, it does not detract significantly from this service element. To this end, it is noted that prior to the first mentioned warning, in 2010, there is still 30 years of service by the applicant in relation to which there is no evidence of disciplinary action.

(b) any warnings relied upon by BHP have largely only been relied upon in relation to reinstatement. It is submitted they are not relevant to the determination as to whether the dismissal was unfair.

(c) he is 60 years of age and has basically worked for BHP for almost all of his working life.

(d) he was intending to work for BHP until retirement and had factored that into his retirement planning.

(e) he has significant financial commitments, including a mortgage.

(f) his connection to his work and the community.

[386] During oral closing submissions, Mr Anderson stated that the effect of Mr Rivers’ evidence during the last day of hearing was that Mr Rivers would not have escalated the matter, if not for Mr McNamara having involved himself in the issue.

Submissions by BHP

s.387(a) - valid reason

[387] It is stated that in order to determine if a valid reason relating to Mr Macklin’s conduct should be found, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by Mr Macklin actually occurred. 150 The Commission must make a finding as to whether the conduct occurred based on the evidence before it.151 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.

[388] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 as follows:

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

[389] The question put by BHP that the Commission must determine is:

(a) Did Mr Macklin refuse an instruction by his supervisor, Mr Rivers to assess an operator of Downer on a haul truck;

(b) If so, was the refusal by Mr Macklin a deliberate and intentional act on his part (as opposed to accidental or unintended); and

(c) Was the relevant instruction a lawful and reasonable direction?

[390] BHP submitted that not only did Mr Macklin outright refuse an instruction given by Mr Rivers that he assess an operator of Downer, he threatened to resign from his trainer/assessor role if he was made to do so. The refusal was deliberate and intentional. It was not a mistake or an unintentional refusal. Although Mr Macklin’s evidence is that his deliberate conduct was on the basis of a mistaken understanding, this does not change the character of his conduct at the time.

[391] BHP stresses that the reasons or motivations for the refusal should not be conflated with the conduct itself. It is submitted that the Commission should not accept Mr Macklin’s justification that he was acting on the basis of some mistaken understanding of the 2018 Agreement.

[392] The trainer /assessor role is an important role in the management of safety at the mine. The direction which had been issued to Mr Macklin was both lawful and reasonable. He was required to comply with it. Instead, he refused to do so and threatened to resign from his trainer/assessor role if he was required to assess contractors. BHP contends that the ‘ex post facto’ attempt to justify the refusal with reference to some mistaken belief should not be accepted.

[393] The position of Mr Macklin was conveyed in circumstances where the relevant contractor workers were assisting the crew on which Mr Macklin was working and there were otherwise no operational or safety factors relevant to the task which Mr Macklin had been directed to do. The duty of assessing a worker to operate a haul truck was the same irrespective of whether they were an employee of BHP or of a contractor. Therefore the task was a reasonable and normal task within the scope of the duties of a trainer/assessor.

[394] BHP submitted that even if it accepted that Mr Macklin had some mistaken belief based on the 2018 Agreement that he was not obligated to comply with the instruction, this does not explain his conduct nor make it acceptable. The position adopted by Mr Macklin was intentional as to its effect. The effect was to convey to management, in very clear terms, that he would not assess a contractor worker and would rather cease any duties relating to training and assessing workers. It was an outright refusal by Mr Macklin to undertake the task.

[395] BHP relies on employees complying with the directions of their Supervisors and Managers and raising any concerns appropriately, particularly given the importance of safety and the management structure at the mine. If employees adopt positions of refusing to comply because, for instance, they have a different view about whether or not they should or can be required to undertake a particular task, there would be significant practical consequences for the business. The authority of Supervisors and Superintendents would be undermined.

[396] In refusing to undertake the task, BHP submitted that Mr Macklin acted contrary to his employment duties and also the requirement that he comply with lawful and reasonable directions. He also acted contrary to BHP’s Charter Values and Code of Conduct, in relation to which he had received training.

[397] It is contended that as a long-standing employee with extensive training and experience, Mr Macklin ought to have known better than to refuse to undertake a task and, in effect, challenge his Supervisor in the manner that he did.

[398] Mr Macklin was already on a final written warning based on his earlier conduct in breach of BHP’s Charter Values and Code of Conduct. Relevantly, Mr Macklin had been disrespectful towards participants and the trainer in an external training course. At the time of the final written warning in August 2017, Mr Macklin was advised that if he engaged in further misconduct in the future, disciplinary action, including termination of employment, may be taken. Mr Macklin’s behaviour during the external training course manifesting disrespect and opposition based on his contrary understanding is similar to his conduct of refusing the direction of his Supervisor based on his contrary understanding.

[399] BHP submitted that Mr Macklin’s conduct and the need to act consistently with BHP Charter Values and Code of Conduct had also been raised with him over many years in connection with his performance reviews.

[400] Even though Mr Macklin has responsibilities to meet pursuant to the Charter Values and Code of Conduct, BHP submitted that it is a matter of common-sense, especially for an experienced and long-serving employee, that there needs to be compliance with the directions of an employer and, if there are any questions as to its validity, this needs to be clarified without adopting a position of refusal and threatening to cease performing certain duties altogether (in this case, that of a trainer/assessor).

[401] It is submitted that the attempt by Mr Macklin to now explain his conduct and interactions, and provide some justification for them so as to diminish the force of his own decision-making and intentional refusal, are inconsistent with the circumstances of what occurred and should not be accepted.

[402] The attempt to re-characterise the interaction and, in effect, portray it as some request or casual discussion between an Operator and a Supervisor (without the realisation that there was an instruction being issued or that there may be any consequence for refusing) also does not align with the circumstances and context of what occurred. Mr Macklin clearly understood the direction but decided to refuse it. To the extent that he was then directed to undertake alternative duties, this was a response to minimise any further disruption following another trainer/assessor being required to undertake the assessment task.

[403] It is submitted that the contentions advanced by Mr Macklin to explain his conduct are similar to a number of the arguments advanced by the applicant in Marc Waters v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal Pty Limited [2018] FWC 3285 (Mt Arthur case). In the Mt Arthur case, Mr Waters had been dismissed following his Facebook posts that Christmas and Boxing Day shifts would not be worked at the Mt Arthur Coal Mine. This message was conveyed to contractors who had volunteered to work at the mine on Christmas and Boxing Day shifts.

[404] Mr Waters disagreed with Mt Arthur’s decision for production operations to occur on those days and on 22 December 2017. Mr Waters published a post on Facebook that Christmas Day and Boxing Day shifts were ‘off’. An industry safety and health representative subsequently issued Mt Arthur with a “Direction to suspend mining operations”. Another site safety and health representative then informed Mr Waters that Mt Arthur was not going to operate on Christmas Day and Boxing Day. Shortly thereafter Mr Waters reiterated his first Facebook post by publishing a second Facebook post on 24 December 2017.

[405] In assessing Mr Waters’ conduct, it was accepted that Mr Waters honestly assumed that Mt Arthur would comply with the Direction after it was made, as Mt Arthur had in the past. However, in circumstances where Mr Waters had a limited understanding of the legislative power invoked to make the Direction, including whether there were any grounds on which Mt Arthur might have a right not to follow it, it was considered to be significant that Mr Waters took no steps to find out from an authorised source of information whether Mt Arthur would comply with the Direction.

[406] The further contention of Mr Waters that Mt Arthur did not comply with its obligations under the relevant legislation with the result that he was excused from any breach by him of the Code or the Charter Values, or that Mt Arthur’s breach of duty mitigated Mr Waters’ conduct in breaching those policies or invalidated the reason for Mr Waters’ dismissal was also rejected.

[407] BHP submitted that in the present matter, Mr Macklin engaged in an intentional and wilful refusal to perform the task which had been allocated to him. At the time of his refusal, Mr Macklin failed to make any, let alone sufficient, enquiries to understand whether he was justified in refusing a direction (even assuming that Mr Macklin was acting on an understanding of the 2018 Agreement rather than any reasons related to the unitisation by BHP of contractors).

[408] BHP submitted that in all of the circumstances, it had a valid reason for the termination of Mr Macklin’s employment.

s.387(b) - whether the person was notified of that reason

[409] BHP submitted that the reason for the dismissal was directly related to Mr Macklin’s conduct. He was clearly notified of the reason for his termination in the letter of 28 June 2018. The show cause letter dated 15 June 2018 also set out the conduct which was being investigated, to which Mr Macklin was invited to provide a written response.

[410] BHP denies that in contemplating termination, it considered that because Mr Macklin had made reference to ‘going out on the grass’ he had rejected the request in preparation for industrial activity.

s.387(c)- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[411] BHP stated that the criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 152

[412] The reason for the dismissal related to Mr Macklin’s conduct on 28 May 2018. BHP submitted this had been explained to him on 29 May 2018, 1 June 2018 and then by way of written correspondence on 15 June 2018 when he was issued with the show cause letter.

[413] Mr Macklin was given opportunities to respond in person and also in writing. The show cause response was received on 20 June 2018. BHP contends there can be no suggestion that he was denied an opportunity to respond to the reasons relating to his conduct.

[414] BHP submitted that Mr Macklin’s contention that BHP had made a predetermined and/or erroneous decision to dismiss him because of a preconceived view that Mr Macklin was lying as to his belief is misconceived and should be rejected.

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

[415] BHP submitted that there was no such refusal relevant to this criterion, and it is not submitted otherwise by Mr Macklin.

s.387(e) - if the dismissal related to unsatisfactory performance by the person- whether that person had been warned about that unsatisfactory performance before the dismissal

[416] BHP submitted that Mr Macklin’s dismissal related to his conduct rather than any unsatisfactory performance, and accordingly this criterion is not relevant. 153

[417] It is contended that Mr Macklin’s submissions that there was some failure to provide a relevant warning about his performance is misconceived.

[418] The earlier warnings, in particular the final written warning which had been issued to Mr Macklin, while not relevant to this factor, arise for consideration in connection with the criterion at s.387(h) of the Act.

s.387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

s.387(g) - the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[419] BHP submitted that these matters are neutral and do not arise for consideration in the circumstances of this matter.

s.387(h) - any other matters that FWC considers relevant

[420] BHP submitted that it is relevant that Mr Macklin was already on a final written warning based on his earlier conduct in breach of BHPs Charter Values and Code of Conduct. In performance reviews there were concerns relating to Mr Macklin’s conduct and the need to act consistently with BHP Charter Values and Code of Conduct.

[421] BHP referred to the following statement of Commissioner Saunders (as he was then) in the Mt Arthur case:

[137] I find that Mr Waters was employed by Mt Arthur for a reasonable period of time. The fact that he had received a prior final written warning for breach of the Charter Value of Integrity, albeit in different circumstances to the conduct which led to his dismissal, is significant and weighs against Mr Waters’s argument that his dismissal was harsh. However, the weight to be given to the prior final written warning is somewhat lessened by the turnaround in Mr Waters’s attitude at work in the 12 months prior to his dismissal.

[422] BHP points out that Mr Macklin had been issued with a final written warning in August 2017. For the reasons already given by BHP, Mr Macklin’s conduct resulting in the final written warning in August 2017 has a close connection with his behaviour in refusing a direction (based on him having a contrary view to the direction given by Mr Rivers) on 28 May 2018. BHP contends that this is significant and weighs against him.

[423] BHP acknowledges that Mr Macklin has a lengthy period of service, but contends that this is a double-edged sword. Given Mr Macklin’s extensive training and experience, he did or ought to have known better than to adopt a position of refusal of a direction twice given by his Supervisor. The seriousness of Mr Macklin’s conduct is not diminished or lessened by his length of service but rather rendered all the more serious.

[424] BHP is concerned that Mr Macklin relies on non-compliance by BHP with obligations contained in the 2018 Agreement relating to an employee having a representative present at meetings. BHP states that there was never any refusal for Mr Macklin to have an employee representative present at the meeting of 31 May 2018. Rather, he was informed that his choice of person was not on shift and that he should consider someone else. Mr Macklin did not do anything further about this and turned up at the meeting on 31 May 2018 and then refused to engage. It is contended that there is no impact arising from this meeting in relation to the process. Ultimately the meeting was rescheduled to occur on 1 June 2018 at which Mr Macklin’s preferred support person was present.

[425] Finally, it is submitted by BHP that the other consequences relating to Mr Macklin’s dismissal, including his expression of remorse (despite that he maintains a position that a direction was never issued and it was merely a request followed by a choice of other duties) and the economic consequences for him of the termination, do not overcome nor lessen the seriousness of his conduct. BHP submitted that the dismissal was not disproportionate to the gravity of such misconduct in breaching the BHP Charter Values and the Code of Conduct.

Consideration

[426] I will now consider each of the criteria set out in s.387 of the Act separately:

s.387(a) - valid reason

[427] BHP respectfully requests the Commission determine the following questions:

(a) Did Mr Macklin refuse an instruction by his supervisor, Mr Rivers to assess an operator of Downer on a haul truck;

(b) If so, was the refusal by Mr Macklin a deliberate and intentional act on his part (as opposed to accidental or unintended); and

(c) Was the relevant instruction a lawful and reasonable direction?

[428] The answer to all three questions is unequivocally yes. I have no hesitation in finding that Mr Macklin did refuse Mr Rivers’ direction, he did so deliberately and intentionally, and it was a lawful and reasonable direction. However, in determining whether there was a valid reason for the dismissal, it is not as simple as answering these three questions.

[429] The reason for the dismissal contained within the 28 June 2018 termination letter is as follows:

(a) Findings of an investigation into allegations of misconduct were put, and Mr Macklin was required to show cause why his employment should not be terminated;
(b) The letter of 14 June 2018 outlined that the conduct of 28 May 2018 constitutes misconduct, resulting in a breach of the Charter Values, specifically Respect, Integrity and Accountability;
(c) The findings of the investigation, together with relevant information obtained during the investigation, the employment history and Mr Macklin’s verbal and written responses were taken into account;
(d) Mr Macklin failed to provide satisfactory responses to the matters raised in the show cause letter, and Mr McNamara considered that Mr Macklin’s conduct fell short of the expectations of his obligations as an employee and as a trainer/assessor. The nature of the misconduct and the breaches of the Charter Values has resulted in the decision to terminate the employment.

[430] The show cause letter reveals more detail, missing from the termination letter. The show cause letter reveals that the investigation findings were:

(a) Mr Macklin refused instruction from Mr Rivers to assess an Operator;
(b) When asked why he would not authorise the Operator, Mr Macklin responded with words to the effect he “would not train a contractor”;
(c) Mr Macklin said he would forego his role as a trainer/assessor if he was made to train contractors;
(d) Mr Rivers then assigned Mr Macklin to an alternate task and another trainer/assessor was called to complete the assessment;
(e) The misconduct breached the Charter Values, specifically: Respect, Integrity, Accountability;
(f) The role of trainer/assessor requires Mr Macklin to assist in the assessment and training of all coal mine workers, including contractor and labour hire employees;
(g) Mr McNamara does not accept Mr Macklin’s response that he had been advised by Mr West that he was not required to assist in the assessment and training of contractor and labour hire employees as he has been a trainer/assessor for 17 years, and has previously completed assessments and trained contractor and labour hire employees.

[431] In the course of the hearing it became clear that the reasons given for the dismissal did not constitute all of the reasons for the dismissal. Mr McNamara’s evidence revealed that there more reasons than those included in the show cause letter and the termination letter which formed part of his decision to dismiss.

Was a second direction issued by Mr Rivers to Mr Macklin?

[432] Up until giving evidence at the hearing, Mr McNamara was of the belief that Mr Rivers had issued to Mr Macklin a second direction to assess the Downer contractor. Mr Rivers had definitively told Mr McNamara so on 28 May 2018, and Mr McNamara then took that into account in his investigation of the matter. I will have more to say about the fact that Mr McNamara did not raise this factually incorrect position with Mr Macklin in my consideration of s.387(b).

[433] Having regard to the evidence of Mr Rivers and Mr Macklin as to the crib room discussion on 28 May 2018, that being the second conversation, I conclude that Mr Rivers did not issue to Mr Macklin a direction to Macklin when the following conversation occurred:

Rivers: Since you won’t do the RPL I’ll have to get someone else.

Macklin: That’s right, I won’t do the RPL.

Rivers: You’ve put me in a bind, I’ll need to get someone else to RPL the worker now and you’ll have to go and do truck operations.

[434] None of the conversation above constitutes a direction or instruction to Mr Macklin. It is not a confirmation of the earlier direction given in the Supervisor’s office. I liken Mr Rivers’ statement as to an acquiescence of Mr Macklin’s earlier stated position on the matter. It is not even a question or request. It is a statement of fact that Mr Macklin is not going to RPL the contractor.

[435] Where I have found that the second conversation between Mr Macklin and Mr Rivers did not include a second direction or instruction to Mr Macklin, it is then concerning that Mr Rivers then informed Mr McNamara that he had, in fact, issued a second direction to Mr Macklin and he had refused.

[436] While the show cause letter and the termination letter’s reliance on the show cause letter details that Mr Macklin had refused instruction, without stating how many times, it is clear from Mr McNamara’s evidence that up until the hearing and the giving of his oral evidence, he had understood that two directions had been given by Mr Rivers. In questioning from me, Mr McNamara said that he did not have regard to the second direction, and he considered one refusal of duty to be enough to constitute a breach of policies and the Charter Values. I do not accept Mr McNamara’s evidence on this issue, especially in light of the evidence given by Mr McNamara in cross-examination at [366].

[437] I find that Mr McNamara, in giving oral evidence attempted to say that the first conversation between Mr Macklin and Mr Rivers was sufficient to constitute a breach, but he did have regard to what he thought was a refusal of a second direction. How could he not? It formed part of his written evidence that he had been told by Mr Rivers that a second direction had been issued. It is, in my view, impossible for Mr McNamara to have genuinely and sincerely divorced his understanding of a second direction issued to Mr Macklin and rejected, from the first, true direction issued, and say that he only hard regard to the first. I do not accept that evidence.

[438] Accordingly I find that Mr McNamara, in making findings against Mr Macklin, and in his reasons for dismissal determined that Mr Macklin had twice refused Mr Rivers’ direction to assess the Downer contractor.

Did Mr Macklin make reference to going out on the grass?

[439] There is some dispute between Mr Macklin and Mr Rivers as to whether the following was said on 28 May 2018:

Rivers: I don’t understand the issue. Why won’t you do it?

Macklin: I know that if the employees go out on the grass, the company will get the contractors to do our work.

[440] Mr Rivers made the following relevant contemporaneous notes:

“….Again I prompted Greg for more clarity on why he wouldn’t train or pass out a contractor (Downer) he proceeded to explain that if they (BMA Employees) “went on the grass” (strike) then the contractors would come and do his job…..”

[441] On account of the contemporaneous notes and Mr Rivers’ impressive evidence on this point at hearing, I have no hesitation in accepting that Mr Macklin said the above statement when prompted by Mr Rivers for a reason for the refusal.

Difference between contractor and labour hire employees

[442] On the evidence before the Commission there is a distinct difference between contractor employees (such as a Downer employee) and labour hire employees on the mine site. Contractor employees typically work in their own groups, are trained and assessed by their own trainer/assessor, and have their meals in their own crib rooms. They may or may not be included in site-wide addresses such as the ‘State of the Nation’ referred to by Ms Mouat, but they are typically separate.

[443] I accept the evidence of the witnesses who largely all agreed that having contractor employees such as Downer employees performing work within the BHP crews was highly unusual and irregular. It was certainly the first time Mr Macklin had experienced such a scenario.

[444] For an event that had some planning involved, and it being a unique situation, it is perplexing that it was not announced at the morning pre-start meeting that a number of contractor employees would be joining the crew after they had been appropriately assessed. In all likelihood it would have generated some inquiry and discussion.

[445] It is a telling point that the management witnesses, and particularly Mr McNamara did not, prior to the dismissal, appreciate that there is a difference between contractor employees and labour hire employees. In cross-examination, Mr McNamara described contractors and labour hire employees as ‘those who are performing work under coal mining who are not employed by BHP’. 154 In questioning from me, stating that there are three different groups of worker on site, Mr McNamara stated that he didn’t see the distinction between contractor and labour hire employees, because “our operations have a mixture of those employed by BHP and people who are employed by an external agent.”155

[446] When shown the show cause letter where Mr McNamara had stated that Mr Macklin had previously completed assessment and training with contractor and labour hire employees, and Mr McNamara did not accept his explanation, Mr McNamara then said that he considered a contractor “in the terms of someone employed by another agency within coal mining”. 156

[447] Mr McNamara acknowledged that he did not investigate Mr Macklin’s statement that he had not ever been asked to train or assess contractors. He did not do so, clearly, because Mr McNamara grouped contractor employees and labour hire employees in one group – workers other than BHP employees.

[448] Mr McNamara did not make any such inquiries at all. He was working off an incorrect assumption that Mr Macklin had trained contractor employees given his many years of training and assessing both BHP employees and other mine workers.

[449] I find that Mr McNamara concluded that Mr Macklin had trained and assessed contractor employees on previous occasions. He was of a mistaken belief. If he had taken steps to make inquiries, in light of Mr Macklin’s objections, he would have discovered that he was wrong. It is clear that this formed part of Mr McNamara’s decision making, and formed part of the reasons for the dismissal.

Mr McNamara’s conclusion as to reasons given by Mr Macklin

[450] Mr Macklin informed BHP from 1 June 2018 that he had held a mistaken belief on 28 May 2018 when he refused Mr Rivers’ direction. He did so promptly after having held a discussion with Mr West.

[451] It was not until Mr McNamara was questioned by me did he acknowledge that he considered that Mr West had ‘worded’ Mr Macklin up by providing a convenient explanation that he had been confused by the 2018 Agreement. He agreed with me that his disbelief on this issue formed a reason for the dismissal.

[452] I determine that a reason for the dismissal included Mr McNamara’s disbelief that Mr Macklin had a genuine, mistaken belief for refusing Mr Rivers’ direction, and he had formed a view by no later than 8 June 2018 that Mr West had assisted Mr Macklin in a convenient excuse.

Employee representative v support person

[453] Mr Rivers was the only employer witness aware of BHP’s obligation to provide to an employee a representative in meetings with management pursuant to the 2018 Agreement. Mr McNamara and Ms Mouat did not know this at the relevant time.

[454] At the meeting between Mr McNamara, Ms Mouat and Mr Macklin on the morning of 31 May 2018 there was much finger pointing, with blame cast on each other as to why Mr West was not present. In oral evidence and witness statements of employer witnesses, there were incorrect references to support person, where the 2018 Agreement provides for an employee representative. Mr McNamara did try and distinguish, stating that an employee representative might not be the default position. This is true, but in Mr Macklin’s case, it is clear that he sought an employee representative and pursuant to the 2018 Agreement, was entitled to one. The employer’s reticence to label and organise a person as an employee representative is frustrating and churlish.

[455] The failure of the employer to organise an available employee representative for the meeting of 31 May 2018 meant that the meeting could not proceed. Mr Macklin was within his rights to oppose the meeting commencing.

[456] Disappointingly, Mr McNamara then adjourned the meeting and returned with a letter he had tidied up from one supplied by HR, and he included on the letter that Mr Macklin was refusing to attend the meeting.

[457] I accept Mr McNamara’s evidence that he had always intended to stand Mr Macklin aside with pay. He obtained the template letter from HR. However, when he went to amend the letter as a result of Mr Macklin’s opposition, he included the sentence, “I note that you have refused to participate in an interview regarding these allegations.”

[458] Further, Mr McNamara removed from the template letter the sentence, “It is important for you to note that at this stage I have not made any findings”. These are two matters that begin to detract from the efforts the employer was attempting to make in substantively and procedurally affording Mr Macklin a fair go.

Meeting of 1 June 2018

[459] Along the same lines of concern, I find it prejudicial to Mr Macklin that the beginning of the meeting of 1 June 2018 was spent discussing the rights of the employee representative to be organised by the employer, and not by the employee the subject of the meeting. Having observed Mr McNamara’s oral evidence, I consider he would have been quite annoyed by Mr West’s challenge that Mr McNamara was not meeting his obligations under the 2018 Agreement. At this point Mr McNamara considered that management had met its obligations, and it was Mr Macklin’s fault a person had not been organised. Again, the employer was incorrect on this issue, and this was not discovered until after the meeting on 1 June 2018.

Just Culture decision

[460] Mr McNamara’s evidence is that he concluded the Just Culture tree and decision on 8 June 2018. He did so considering a number of issues related to the allegations, the responses received and Mr Macklin’s previous employment history.

[461] Mr McNamara concluded that Mr Macklin’s behaviour was deviant. He did so well before he received a written show cause response.

[462] At the meeting on 1 June 2018, Mr Macklin and Mr West were responding to oral allegations. The only written part of the investigation was included in the letter of 31 May 2018 where it was stated the employer was continuing to investigate allegations of refusal to follow reasonable direction from his supervisor.

[463] Following receipt of the show cause response, I conclude that Mr McNamara did not return to visit the Just Culture decision tree. He had already determined on 8 June 2018 that the behaviour was deviant. That is, there first was human error, it was intentional (as opposed to unintentional), it was a violation, and it was deviant. Mr McNamara concluded that it was an intentional error by a person even though they thought it is not the approved/tolerated action.

[464] Mr McNamara chose against defining the violation as ‘cultural’ – an intentional error by a person because it is perceived by that person that it is the expected action in their work group. Further, he chose not to describe it as an unintentional mistake – an unintentional error where the person did not have the capability to do the correct thing at the time.

[465] For Mr McNamara to have labelled the action as deviant, he had to determine that Mr Macklin intentionally refused Mr Rivers’ direction even if he thought it was not the approved/tolerated action. To reach deviancy, as opposed to a cultural error, Mr McNamara had to conclude that Mr Macklin thought refusing the direction given was not the approved or tolerated action. That is, Mr McNamara must have had to believe that Mr Macklin was not telling the truth when he stated he had a mistaken belief.

[466] Yet the Commission is pressed by BHP to find that Mr Macklin’s refusal was a deliberate and intentional act on his part (as opposed to accidental or unintended). I have earlier stated that I do accept Mr Macklin’s refusal was a deliberate and intentional act on his part; he deliberately and intentionally refused to assess the contractor. However he says that he did so, and I accept without doubt that he held a genuine, mistaken belief that he did not have to assess the Downer contractor.

[467] I determine that BHP’s submissions seek to narrow too far the obligation of the Commission in assessing whether a valid reason existed for the dismissal. Due regard must be had for the decision maker’s thinking in coming to the conclusion that dismissal must be effected. It is perfectly acceptable in some situations for a decision maker to determine that they do not believe an employee and the explanations offered. In this case, however, the Commission is asked to determine that misconduct, the kind offered by the respondent, occurred. By Mr McNamara making a finding of deviant, the Commission is asked to conclude, on the balance of probabilities that Mr Macklin’s intentional error was made even though he thought it is not the approved or tolerated action.

[468] I cannot find so. I consider that any misconduct by Mr Macklin is best described in the Just Culture tree as cultural. I accept Mr Macklin’s evidence that when he refused Mr Rivers’ instruction in the Supervisor’s office he did so intentionally because he perceived that is the expected action in the work group, based on his understanding at the time of the 2018 Agreement.

What are the reasons for the dismissal?

[469] I outline what I consider to be the stated reasons for the dismissal included in the show cause letter and the termination letter:

(a) A breach of the Charter Values;

(b) Refusal of a direction given by Mr Rivers to assess the Downer employee;

(c) Mr Macklin had trained/assessed contractors previously in his 17 years as a trainer/assessor;

(d) Statement to forego the role of trainer/assessor if forced to assess the contractor;

(e) Failure to comply with company policies;

(f) Failure to train/assess all coal mine workers.

[470] In my view, in coming to the decision to dismiss Mr Macklin, Mr McNamara included the following findings made by him, whether they were correct or not:

(a) A contractor and labour hire employee are grouped as non-BHP employees and Mr Macklin had trained/assessed contractors previously in his 17 years as a trainer/assessor;

(b) Mr Rivers had given an unequivocal second direction to Mr Macklin to assess the contractor which had been refused by Mr Macklin and reported that he had done so to Mr McNamara;

(c) Mr Macklin had made reference in the first refusal to ‘going out on the grass’;

(d) Mr Macklin had repeatedly threatened to forego the role of trainer/assessor if forced to assess the contractor;

(e) Mr Macklin should have sought clarification on his refusal to assess the contractor before making such a definitive announcement;

(f) Mr West had provided to Mr Macklin a convenient excuse which Mr McNamara believed was incredulous, and Mr Macklin was not believed;

(g) Mr Macklin breached the 2018 Agreement by not training/assessing all coal mine workers;

(h) Mr Macklin’s IDPR’s had identified respect issues for fellow workers;

(i) Mr Macklin’s 2017 warning was taken into account;

(j) Mr Macklin had engaged in deviant behaviour regarding the 28 May 2018 incident.

[471] On the breach of Charter Values, I concur that BHP is entitled to expect its employees to meet their obligations to comply with the Charter Values. The three values BHP found Mr Macklin had breached are below:

(a) Respect: Embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial;

(b) Integrity: Doing what is right and doing what we say we will do:

(c) Accountability: Defining and accepting responsibility and delivering on our commitments.

[472] I accept that Mr Macklin should have obliged the direction given by Mr Rivers. I find, however, that he did hold a mistaken belief that he did not have to train contractors, on account of him never having done it before, and his misunderstanding of the 2018 Agreement.

[473] I understand how BHP came to the view that Charter Values had not been met. Its employee did refuse an instruction. In light of the submissions made at the 1 June 2018 meeting and the show cause response of 20 June 2018, it might be expected that BHP had softened its position after learning of Mr Macklin’s response and his stated reasons for the refusal.

[474] I have above stated that relevant to the refusal of a direction, it is a sound reason given by BHP for the dismissal.

[475] On Mr McNamara’s assessment that Mr Macklin had trained/assessed contractors previously in his 17 years as a trainer/assessor, Mr McNamara’s findings are incorrect. He did not know the labour hire employees and contractors are distinct groups, and he did not inform himself until collecting information relevant to these proceedings.

[476] I accept that Mr Macklin’s statement that he would forego his training/assessing functions was an explosive thing to assert at the time of the discussion. It was an expressed ultimatum. It was an unnecessary thing to say. In light of what Mr Macklin later said when asked on 1 June 2018 and in the show cause response, it does not form a sound reason given by BHP for the dismissal.

[477] I accept that BHP policies would not permit an employee to refuse a reasonable and lawful direction given by BHP, and form a sound reason given for the dismissal.

[478] I accept that Mr Macklin was obliged to train/assess all coal mine workers, whether they are BHP employees, labour hire employees, or contractor employees. The refusal is a sound reason given by BHP for the dismissal.

[479] When regard is had for the reasons for the dismissal included in Mr McNamara’s decision making, it provides for a different coloured lens in which to view the decision made.

[480] As stated above, Mr McNamara concluded that Mr Macklin had trained/assessed contractors for some part of the 17 years he was a trainer/assessor. He was clearly wrong, and it does not provide a sound reason for the dismissal. It is a factual error.

[481] A further factual error was made by BHP concluding that Mr Macklin had twice refused a direction by Mr Rivers.

[482] Mr McNamara was entitled to conclude that Mr Rivers’ account that Mr Macklin had referred to ‘going out on the grass’ was correct.

[483] Mr Macklin did not repeatedly state that he would forego his trainer/assessor role, and it was improper to conclude this as a reason for the dismissal.

[484] I wholeheartedly agree with Mr McNamara that Mr Macklin should have stated that he needed clarification on his obligation to train the contractor before making an announcement that he would not do so and if he was required to do so, he would step down as a trainer/assessor.

[485] Mr McNamara’s view that Mr West had ‘worded’ Mr Macklin up to provide him with a convenient excuse is not accepted, and does not form a sound reason for the dismissal.

[486] Mr Macklin’s poor, recent IDPR history relevant to respect is concerning, and I accept it had a reasonable bearing on the decision to dismiss.

[487] I accept BHP’s reliance on the 2017 final written warning was appropriate, and I do not accept the argument that an employee warned in relation to misconduct the kind demonstrated in 2017 should not be further warned, or dismissed over a different course of misconduct in 2018.

[488] Having reviewed the definitions within the Just Culture guide, I do not accept that Mr Macklin’s conduct on 28 June 2018, and the reasons given by him for refusing Mr Rivers’ direction constituted deviant behaviour. I accept that Mr Macklin’s conduct was intentional, but I do not accept that it was ‘thought by him that it is not the approved/tolerated action’.

[489] It is easy to distinguish Mr Macklin’s conduct against that of Mr Waters’ in the Mt Arthur case, which I note is a single member decision. The conversation between Mr Macklin and Mr Rivers was quick, and would not have lasted in longer than two minutes, in my view. Mr Macklin did not speak with anybody or have the opportunity to make further inquiries before he promptly refused the direction. Mr Waters had days of opportunity to make inquiries and speak to mine management before undertaking the course of action that he did.

[490] I determine that was not a valid reason for the dismissal.

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

[491] It is beyond doubt that Mr Macklin was informed of some of the part of the reason for the dismissal. He was informed that his explanation as to why he refused was not accepted. He was told it was because he had been a trainer/assessor 17 years and had trained and assessed both contractor employees and labour hire employees. BHP was wrong on this issue.

[492] Mr Macklin was not notified that the decision maker, Mr McNamara grouped Mr Macklin’s refusal to assess the Downer contractor into a larger group of non-BHP workers.

[493] He was also informed that BHP considered that he had breached the Charter Values, specifically Respect, Integrity and Accountability.

[494] I have, above, found that part of Mr McNamara’s reason for dismissing Mr Macklin included Mr Rivers’ incorrect assertion that Mr Rivers had issued a second direction to Mr Macklin. Mr Macklin was not notified, however, that Mr McNamara was informed by Mr Rivers that a second direction had been given.

[495] In questioning from me, it was clear that Mr McNamara considered that Mr West and Mr Macklin had concocted a response Mr Macklin should give in order to save his job. I have above found, based on Mr McNamara’s response at hearing that this did form a reason for the dismissal. None of this was notified to Mr Macklin. He did not know until cross-examination of Mr McNamara that this had formed part of Mr McNamara’s decision making.

[496] Mr Macklin was not informed that McNamara had determined, as early as 8 June 2018, pursuant to the Just Culture decision tree form that he considered his conduct to be deviant. Further, he was not told so in the show cause letter issued to him on 15 June 2018. It was a decision arrived at solely by Mr McNamara, and not discussed with Mr Macklin or his employee representative. It was not referred to in the termination letter.

[497] It is somewhat disturbing that an organisation the size of BHP can keep this important, rather subjective assessment of an employee out of sight of the employee. If an assessment is conducted after findings have been made, why is it not shared with the employee to allow the employee to influence a final decision on the matter? Why is the employee not provided a copy of the Just Culture form as part of the show cause letter? My preference would be that it be done prior to any findings are actually made, but to not even provide it at the show cause stage is unfair.

[498] Mr Macklin was notified of some of the reasons for the dismissal, but not all of the reasons for the dismissal.

s.387(c) - Opportunity to respond

[499] In light of the above findings on whether there was a valid reason for the dismissal, it is clear that Mr Macklin was not afforded the opportunity to respond to some of the reasons for the dismissal. I have discussed it above, but to reinforce, the primary matters Mr Macklin was not afforded the opportunity to respond to include:

(a) Mr McNamara’s view that contractors and labour hire employees are the same group, and he has trained such mine workers;

(b) Mr Macklin had refused a second direction of Mr Rivers;

(c) Mr Macklin had made reference to Mr Rivers of ‘going out on the grass’;

(d) Mr Macklin had repeatedly threatened to forego the role of trainer/assessor if forced to assess the contractor;

(e) Mr McNamara considered Mr West had worded Mr Macklin up and provided him with a convenient excuse;

(f) Mr Macklin’s IDPR shows a demonstrated lack of respect for fellow workers;

(g) He had engaged in deviant behaviour;

[500] Mr McNamara stated that he revisited the Just Culture decision tree after the show cause response, but he did not complete a second Just Culture decision tree having reviewed the response. I do not accept that he challenged himself in light of Mr Macklin’s response.

[501] I find that Mr McNamara’s judgment was clouded by consideration that Mr Macklin had been fed a response. Further, on all accounts, I consider that Mr McNamara failed to give appropriate regard to Mr Macklin’s response to the show cause letter. It is not clear what response Mr McNamara would have needed to have concluded that Mr Macklin would not be dismissed. He provided an extremely apologetic response, unheeded and at times, disbelieved by Mr McNamara.

[502] I find that Mr Macklin was provided an opportunity to respond to some, but not all of the reasons for the dismissal, and the failure not to put all of BHP’s concerns to Mr Macklin were material.

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

[503] Mr Macklin was offered the opportunity to have an employee representative at the meetings of 1 June 2018, 15 June 2018, at the termination meeting of 28 June 2018. At no time during these meetings was Mr Macklin refused the opportunity of a support person.

[504] This criterion is a neutral consideration.

s.387(e) - Warnings regarding unsatisfactory performance

[505] I accept BHP’s submissions that Mr Macklin was dismissed for misconduct, not performance, and any consideration of the earlier warnings received by Mr Macklin should be performed in the review below of s.387(h).

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

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

[506] Both parties agree this is a neutral consideration.

s.387(h) - Other relevant matters

[507] As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd: 157

“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”

[508] Mr Macklin has been employed by BHP for a period of 38 years; a very significant period of time. Mr Macklin is presently 60 years old. A period of such service and the age of a person has some bearing on any decision to find a dismissal unfair or not, but it cannot excuse serious misconduct warranting dismissal. I confirm that while I have had regard to Mr Macklin’s length of service and age, I have not let it overcome my other considerations.

[509] I note the recent warnings issued to Mr Macklin. They demonstrate very poor decisions made by him, and a pattern of disrespect in the workplace, at times.

[510] I have had regard to BHP’s non-compliance of the 2018 Agreement in seeking to meet with Mr Macklin on 31 May 2018 without organising his support person. It was conduct that should not be repeated by BHP, and I am satisfied the relevant managers now know of their responsibility to organise a representative, if requested.

[511] The meeting did not go ahead on 31 May 2018, but only because Mr Macklin properly resisted. Mr McNamara became frustrated by this and stood him down, noting that he was not cooperating with an investigation. I accept that Mr McNamara had already planned and organised to stand him down to conduct the investigation. It is fair to say that Mr McNamara’s failure to know the obligations within the 2018 Agreement is not much off Mr Macklin’s reasons for refusing to assess the contractor. Both were of a mistaken view as to rights and responsibilities. I consider that there was some prejudice to Mr Macklin by Mr McNamara’s actions both on 31 May 2018 and on 1 June 2018.

[512] I do not consider that Mr Macklin’s conduct towards Mr Rivers was ‘disrespectful’, at least to the extent that it has been categorised and treated as such by BHP. The mere fact that Mr Macklin disagreed with Mr Rivers does not mean he acted disrespectfully.

[513] I consider it appropriate that Mr McNamara requested Mr River’s make a written statement of the 28 May 2018 incident. It should be a natural instinct when requesting a member of management make a written statement, the relevant employee is also asked to make a written statement. Any fear of ‘infection’ can be prevented by requiring the employee to make the contemporaneous notes without assistance, and allowing the employee to revisit the notes at a later date to allow for any corrections they wish to make having had the assistance of representation.

[514] I find that there was no material conflict of interest in Mr McNamara investigating the incident and making the decision to dismiss. An employer is not expected to outsource all decisions or investigations, and I consider that in these particular circumstances, Mr McNamara’s seniority affords him that decision-making right.

Conclusion

[515] I have determined that there was no valid reason for the dismissal.

[516] I have determined that Mr Macklin was informed of some of the reasons for the dismissal, but not all of the reasons.

[517] I have determined that Mr Macklin was given an opportunity to respond to some of the reasons for the dismissal, but not all of the reasons.

[518] I have detailed my considerations relevant to other relevant matters.

[519] Having made the findings above, and in consideration of all of the material before the Commission, I find that the dismissal was harsh, unjust and unreasonable.

Remedy

[520] Section 390 of the Act reads as follows:

‘390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

[521] Mr Macklin is a person from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated. Mr Macklin seeks reinstatement.

[522] Section 391 of the Act provides as follows:

‘391 Remedy—reinstatement etc.

Reinstatement

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

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

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

(1A) If:

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

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

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

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

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

Is reinstatement inappropriate?

[523] I have found Mr Macklin was unfairly dismissed; however it is not axiomatic that reinstatement or reappointment follows such a finding. In a Full Bench decision in Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 it was held:

‘[35] The appellant’s submissions appear to proceed on the basis that reinstatement automatically follows from a finding of unfair dismissal. This is not correct. There is no right to reinstatement consequent upon a finding that an applicant has been unfairly dismissed. The commission has a discretion as to whether a remedy will be awarded in a case where a dismissal has been found to be unfair. Reinstatement will only be awarded if the commission is satisfied that is appropriate to do so.’

[524] It is common for respondents in unfair dismissal matters to argue that it is inappropriate to reinstate an employee who has been found to be unfairly dismissed because of a loss of trust and confidence. In Nguyen, the Full Bench examined the relevant principles concerning an alleged loss of trust of confidence in the context of an application for reinstatement. It held:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

(a) Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. 

(b) Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. 

(c) An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. 

(d) The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. 

(e) The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[525] In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186at 191-192, the Full Court of the Industrial Relations Court said:

"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits."

[526] Evidence was given with respect to the potential reinstatement of Mr Macklin. Mr Macklin stated that he has been unable to find alternative work since the dismissal. He took steps to find alternative employment by searching online for jobs through websites including Seek, looked in newspapers for advertised positions, asked for assistance in preparing a CV, and made inquiries regarding labour hire positions.

[527] Since filing his first witness statement on 2 October 2018 he has not looked for other work. He was of the view that if he was successful in his application and reinstatement was ordered, he would have been keeping somebody else out of a job. I informed Mr Macklin that was not correct, and he accepts that he has not sought to properly mitigate his loss since 2 October 2018.

[528] Mr Macklin valued his work at the mine and stated that it had been a big part of his life. He cannot think of any reason why he could not return to the employment. He says if he were to be reinstated it would be in a productive and positive manner. He stated that he had good relationships with other workers at the mine, including Supervisors and management. He is confident there would not issues if he returned.

[529] In considering reinstatement, the following was said during the first day of the hearing: 158

Commissioner: All right, so how flexible do you think you are to change, Mr Macklin?  You've been in the business a very long time.  Things have happened technology wise, social wise.  I can see how resistant you were to the training from 2001 to 2017?

Macklin: Yes.

Commissioner: You seem to have inflexible views on some matters.  Now how flexible are you, because you're seeking reinstatement if you're successful in this application - - -?

Macklin: Yes.

Commissioner: To get on with the job and do as you're asked without challenging?

Macklin: Well, I - my work history shows that I can get in and do the job that I'm asked to do.  Anything in relation to my work onsite I've never been challenged on other than this incident.

Commissioner: So why didn't you inform the Commission about your earlier warnings other than the 2017 warning?  Why in your evidence didn't you include the earlier warnings?

Macklin: Basically I would not have known much detail about it.  So - and when Mr Anderson asked for my work file I thought we would have got something through there if we needed to have anything.

Commissioner: So the 2016 bus incident, that would be pretty fresh in your mind wouldn't it, because you were on a final written warning there?

Macklin: But that's in the documentation, yes?

Commissioner: Not in your documentation.  It's in the company's documentation?

Macklin: Honestly I couldn't tell you.

Commissioner: Your evidence to the Commission prior to today?

Macklin: Yes.

Commissioner: Is that you've never been in trouble, you've never disobeyed instructions other than this 2017 incident?

Macklin: Yes.

Commissioner: Now you've been taken today through the 2016 bus incident?

Macklin: Yes.

Commissioner: And I think you've said there that you accept that it was a refusal to follow the direction of the driver?

Macklin: Yes.

Commissioner: But you say - - - it was part of a big joke?

Macklin: Yes.

Commissioner: But at the end of the day you were issued with a final written warning?

Macklin: Yes.

Commissioner: Over that incident.  Now, more than 12 months elapsed before you were issued with your next written warning which would have meant that your 2016 warning would have by virtue of the 12 months under this program have stepped back to a step 2?

Macklin: Yes.

Commissioner: And therefore the August 2017 warning is a step 3?

Macklin: Yes.

Commissioner: Do you understand that?

Macklin: Yes.

Commissioner: All right, so you've got a final written warning in 2016.  Because more than 12 months has elapsed your next written warning is also a step 3?

Macklin: Yes.

Commissioner: And then within 12 months we have this incident?

Macklin: Yes.  But - - -

Commissioner: So I expect the company is going to say "Well, you're on a step 3.  The next step is step 4 which gives us some flexibility as to what we want to do with you, because we've made findings"?

Macklin: Yes.

Commissioner: "That you've breached the charter and there's evidence of you not showing the appropriate amount of respect within the business"?

Macklin: Yes.

Commissioner: So what do you say about that?

Macklin: Well, between '16 and '17 I had three months to go and I would have succeeded in another year without incident, and I was working towards the expected rehabilitation basically and this incident, as I've stated, I didn't think that it was an issue.

Commissioner: So if the company had concerns about your ability to demonstrate respect in the workplace as Mr Rauf took you through the various performance reviews?

Macklin: Yes.

Commissioner: It does come up again.  The incident in the bus may be a respect issue?

Macklin: Yes.

Commissioner: The incident with the training may be a respect issue?

Macklin: Yes.

Commissioner: Then what could the company have done to work with you on this?

Macklin: Well, Commissioner, I accept the first two instances but the issue of respect for the company, it's just something for them to fall back on easily.  They just throw that at anybody.

Commissioner: Well, they - - -They haven't made these things up post-termination.  These things existed prior to the dismissal?

Macklin: Yes.  Yes.

…………..

Commissioner: It's just come up through various incidents and your annual reviews.  Now do you think that you had an issue with respect in the workplace?

Macklin: No, I don't because like I stated, the word "respect" is just an easy word for the company to fall back on.  There are - yes, I accept there is issues there that I accept.  Respect may have been an issue but in all incidents, all the IDPRs, it's just an easy word for them to fall back on.

Commissioner: They weren't just stating that issue.  There were complimentary statements within the reviews as well.  It was perhaps constructive criticism of "You're doing a good job in all these other areas but there's a respect issue in the workplace".  Now might that be true of somebody who's been there so long, who is so senior in the eyes of other employees, who thinks that - you know how this place operates and might it just come out over the year in your work performance to others?

Macklin: Through - yes, through my working day.  Yes.  If I'm doing a job that - a certain scenario, say I'm grading a section of road and truckies drive past me too fast.  They know there's a speed restriction past a grader that's operating.  Someone will go past.  We've got two separate radios in the machines.  Sometimes I grab the wrong radio to give the truckie a blast for doing the wrong thing and it'd be the mine two-way, it'd go over the whole mine and then the supervisor would come and have a talk to me and that's where then the IDPRs or any other time, they just fall back on the word "respect".

Commissioner: So if you were concerned that others were not acting appropriately or safely in that particular scenario, you'd give them a blast would you on the private radio?

Macklin: Yes.  On the CB radio.

Commissioner: Right, are you allowed to do that or is there a better way to inform somebody?

Macklin: Well, when it happens like that when you think everybody's going to follow the rules and bang, it happens, because you're not looking around you, you're looking at doing your job and it's just a shock so you  just grab the two-way and just give them a bit of a yell and tell them to slow down.  But I've had occasions to inform supervisors and had chats with supervisors when I was on pre-strip and on coal mining about that - those scenarios.

Commissioner: Right, so my question is are you allowed to - even if it was on the CB, are you allowed to challenge your co-workers whoever they might be about the concerns that you have about their behaviour or - you know, are you allowed to just go up to somebody and say "You're a n idiot.  You shouldn't be driving that fast" et cetera?  Are you allowed to do that or is there another method of bringing those concerns to your co-workers' attention that doesn't involve an instant, reactive statement that - I don't know - - -?

Macklin: Yes - - -

Commissioner: Does it contain profanities when you - - -?

Macklin: They're – every now and then there might be a profanity.  But when you've talked to them personally, face to face and then they still do it then it - yes, every now and then I'd give them a blast over the two-way, and like I said, I'd grab the wrong two-way and it'd go over the whole mine site.

Commissioner: Right, so do you say it's okay to give them the blast as long as it's private conversation?

Macklin: Well, I'm not saying it's okay but it's the norm.  It's what happens, because it's the private basically chat two-way.  So.

Commissioner: And if you are to return to the workplace you'll do that again, will you?

Macklin: I can't say I wouldn't, because of the job I do, getting run over by a 400 ton truck, it's not a very nice thing to be thinking about.  So I just looked at it as me keeping sure - making sure that everyone is still aware of what they need to be doing.

Commissioner: You earlier said that you've given people a blast and they still do it, so it's not working is it?

Macklin: But that's when I've taken - gone to the next step.  I've taken up the conversation with supervisors and the particular people have been chatted about doing it, which started resolving the problem.  So I went a long, long, long time without even having to get on the two-way other than to ask somebody to do something for me.  So it was - - -

Commissioner: So you're getting success, are you, if you speak to a supervisor and inform them of your concerns about particular people?

Macklin: Yes, and then they take the next step.  They have a conversation with people that are doing the job and they take it on board, and things start to get fixed.

Commissioner: All right, so do you think some of that activity that you've just described when you might blow up at a fellow worker might be reflective of the concerns raised in your annual reviews regarding respect?

Macklin: Yes, it - - -

Commissioner: Do you think that could be it?

Macklin: Yes, it can be reflected.  Yes, I will admit that.  Yes.

[530] The letter from Mr West at [326] states rather uncomplimentary things about Mr Marcklin’s workplace conduct and his ability to deal with others in the workplace.

[531] Ms Mouat’s evidence relevant to reinstatement is detailed in [182-184] and [197-202].

[532] Mr McNamara’s evidence relevant to reinstatement is detailed in [241 – 242] and [289 – 292].

[533] Mr Rivers’ evidence is, as I understand it, he would not be particularly concerned, and considers that it might just be awkward. It is noted that Mr Rivers is now supervising ‘D Crew’.

[534] BHP submitted that it has a rational basis for its loss of trust and confidence in Mr Macklin. It is submitted that BHP maintains a very real concern about his attitude as to his engagement with other workers and also his interactions with supervisors in respect of feedback and behavioural issues.

[535] In support of this, BHP cites the following matters:

(a) Final warning dated 17 August 2017 – the training course incident – Mr Macklin resisted acknowledging or accepting that his conduct in respect of the trainer was unacceptable and inappropriate. At most he agreed that he could have handled the situation a lot better. He agreed in cross-examination that Mr Paton, the person attending the training course and assisting Ms Shanks had no right to say anything to Mr Macklin, and as far as Mr Macklin was concerned he could ‘shut up’.

(b) Final warning dated 18 March 2016 – the bus incident – Mr Macklin refused to accept that his behaviour to the female bus driver was disrespectful despite it involved him refusing an instruction and speaking to her in derogatory terms based on her gender. In cross-examination he stated that he didn’t think he was disrespectful.

(c) Individual development and performance review processes - different supervisors between 2015 – 2017 have all stated the effect that Mr Macklin does not follow the Charter Values, and he needs to respect other workers. In cross-examination, Mr Macklin refused to accept that there was a proper basis to those views and dismissed them as the opinion of others. He repeatedly stated that even if they are the opinions of Supervisors, he does not have to agree with their opinion of him. It is clear that Mr Macklin has no regard for the views of his Supervisors relevant to Mr Macklin’s meeting of Charter Values.

(d) Misconduct on 28 May 2018 – it creates the likely scenario in the future that if Mr Macklin has a particular view (mistaken or otherwise) which conflicts with an instruction issued by a supervisor, he considers it appropriate to refuse the instruction and, he is subsequently found to have been incorrect, then he can admit to it being a mistake and lapse of the judgement.

(e) It is relevant that Mr Macklin considers it appropriate that he can engage with other workers by giving them a “reactive blast on an all mine radio”, as he confirmed in response to a question asked of by the Commission.

[536] BHP submitted that it has a rational and proper basis on which to maintain its concerns about Mr Macklin’s conduct and that, despite that he has previously received two written final warnings, such behaviours will continue to occur given his resistance to change and feedback from supervisors, and unwillingness to accept that the interactions referred to above were disrespectful, inappropriate and unacceptable in the workplace.

[537] It is contended that reinstatement is inappropriate, and compensation is the appropriate remedy.

Conclusion on reinstatement

[538] I have had regard to all of the evidence of the witnesses and Mr Macklin’s disciplinary record, together with his individual development and performance reviews.

[539] I am mindful of Mr Macklin’s age and the likelihood of him securing alternative employment in a regional centre.

[540] I have had due regard to Macklin’s very lengthy service. It must be said, however, that simply because a person has a very lengthy period of service, they are not guaranteed a job for as long as they wish to hold it. A lengthy period of employment will not excuse inappropriate behaviour or misconduct warranting dismissal.

[541] Mr Macklin was an experienced and senior Operator. He was receiving a high level of remuneration.

[542] I accept that over very recent years Mr Macklin has behaved poorly in specific circumstances. He has undoubtedly acted disrespectfully. Relevant to the bus incident, I consider that he was acting like a class clown, effectively informing the female bus driver that she had to pay more attention to driving than worrying about his seat belt being on because, after all, she is female.

[543] In an era when mine operators are doing their best to attract female workers, it is not helpful if a near-60 year old man with decades of experience takes it upon himself to belittle a female bus driver in a bus full of, presumably, men. The driver is likely to have been humiliated. Where Mr Macklin could not agree in cross-examination that he was disrespectful to the driver, he agreed when questioned by me that the bus driver probably was humiliated, and when he discovered she was upset, he sought permission to apologise to her.

[544] Relevant to the training course conduct, I consider that Mr Macklin behaved incredibly poorly. He showed contempt for the training, and in doing so, was extraordinarily disrespectful to Ms Shanks, and then Mr Paton. I find that he did make inappropriate references to breastfeeding in the workplace. It took one and a half days for Mr Macklin to remedy his conduct. It is easy to presume that other participants in the course were aware Mr Macklin was employed by BHP, and accordingly, he was, for the first day and a half, disgracing BHP’s reputation.

[545] That Mr Macklin cannot recognise and concede his conduct during the training course was extraordinarily inappropriate is concerning. I consider that Mr Macklin has become ‘far too big for his boots’ in the manner in which he sometimes addresses people.

[546] In some respects, Mr Macklin might be considered to be a workplace ‘dinosaur’ on account of his conduct and demonstration of disrespect, at times. He has been employed by the one employer for 38 years, and like the character Brooks Hatlen in The Shawshank Redemption, he appears to me to have become institutionalised; resistant to change and outside pressures. He doesn’t know how other workplaces operate, and how over the many years since 1980 when he was first employed, workers across all industries have adapted to change, welcomed greater female participation, including more women in senior roles. Men are now often told what to do by women in the workplace, probably a rare scenario in the early 1980’s.

[547] That being said, I do not accept that he acted inappropriately around Ms Mouat during the pre-start meeting by repeating her comments or at times speaking loudly. I consider it a petty and trivial throw-away by Ms Mouat to cast doubts on the appropriateness of reinstatement. Simply repeating what Ms Mouat said on one occasion does not lead me to conclude that Mr Macklin acted disrespectfully or inappropriately to Ms Mouat. I consider that despite Mr Macklin probably not having much regard to Ms Mouat because of her gender and her relatively young age, he knew that as his Supervisor, Ms Mouat was to be spoken to appropriately and afforded respect in the workplace. I also note that Ms Mouat is now Supervisor of an alternative crew.

[548] It would serve Mr Macklin well to demonstrate some humility and modesty in the workplace. Despite being concerned relevant to alleged safety breaches and speeding in the workplace, he is not king of the all-mine radio, nor should he be of the more localised CB radio. He should not be taking it upon himself to give people a ‘blast’ on the radio, sometimes using profanities. There are far better ways to go about getting a point across and ensuring safe measures are in place. He might be cautioned to say something to this effect over the localised CB radio:

“[name], I have just observed you [speeding/acting recklessly], and I note the time is [time]. I will be reporting my observation to the Supervisor. Please think of your safety and safety of your fellow workers.”

[549] When I suggested to Mr Anderson in oral closing submissions that perhaps Mr Macklin had, in recent years, become a bit too big for his boots, a bit cranky and disrespectful, he suggested that if BHP had considered that to the case, and 38 years is a very significant period of time, the course of action is not to dismiss an employee or give them warnings; education would go a long way. Special measures could be taken to put in place a performance improvement plan and monitoring the conduct and providing training.

[550] Having regard to my findings about the dismissal, and noting the above statements, I do not consider that relevant to the dismissal that took place on 28 June 2018 it is inappropriate to reinstate Mr Macklin. I do not agree with BHP that it has a rational and proper basis for its loss of trust and confidence in Mr Macklin.

[551] Mr Macklin cannot escape his past conduct and the findings of the Commission and comments made above. In a public decision where the Commission has castigated Mr Macklin relevant to the 2016 bus incident and the 2017 training course incident, for which he properly received written warnings, on reinstatement, Mr Macklin is properly advised to get on with his work, follow direction, embrace change and above all, be respectful to all he encounters, whether he agrees with them or not. He should not, however, suffer the significant detriment of losing a well-paying job in a role he has been in for a very long time, where he has been unfairly dismissed.

[552] I note Mr Rivers is now supervising ‘D Crew’. If in future Mr Rivers is Mr Macklin’s Supervisor, on my observation of Mr Rivers, he will simply get on with the task, and he will not hold any resentment towards Mr Macklin, nor Mr Macklin to him. Mr Rivers appears to me to be a sensible fellow who will easily overcome any perceived awkwardness.

[553] I have chosen to exercise my discretion and consider it appropriate in the circumstances to order, pursuant to s.391(1) of the Act, that Mr Macklin be reinstated to the position he held immediately before his dismissal.

[554] I consider it appropriate in the circumstances to order reinstatement from 7 January 2019 on account of the Christmas and New Year period.

Order to maintain continuity

[555] Section 391(2) of the Act provides as follows:

‘Order to maintain continuity

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

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

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

[556] In all the circumstances, I consider it appropriate to make an order pursuant to s.391(2) to maintain the continuity of the employment and the period of continuous service for all purposes, other than in respect of:

(a) the accrual of long service leave in the period between termination and reinstatement; and
(b) the accrual of annual leave in the period between termination and reinstatement; and
(c) the accrual of personal leave in the period between termination and reinstatement.

Order to restore lost pay

[557] The relevant considerations when determining if lost pay should be ordered are set it in ss.391(3) and (4) of the Act:

‘Order to restore lost pay

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

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

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

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

[558] Both parties made submissions with respect to this issue. For Mr Macklin it was submitted the Commission should award Mr Macklin full back pay for the period 28 June 2018 to 2 October 2018 when he filed his first witness statement, less the five weeks already paid to him as notice. Following 2 October 2018, Mr Macklin concedes that he made no attempts to mitigate his loss.

[559] The five week paid notice period from 28 June 2018 took Mr Macklin through until 1 August 2018. The period 2 August 2018 to 2 October 2018 is approximately nine weeks.

[560] BHP contended that if Mr Macklin was not reinstated, he would likely have been dismissed within four and six months, given his history and recent repetitions. Mr Rauf did not cavil with an award of full payment for the period between 2 August 2018 and 2 October 2018.

[561] On the issue of an award of compensation, as opposed to an order for back pay, BHP submitted that any award of compensation should be reduced by 20% for misconduct, and for the period beyond 2 October 2018, a further deduction of 50% for informed and deliberate failure to mitigate, such that any payment ordered for beyond 2 October 2018 would only be paid at 30% of the amount.

[562] As to an order for back pay in the event the Commission ordered reinstatement, BHP submitted that the amount ordered should be nil, notwithstanding the five weeks’ notice already paid to Mr Macklin. The submission was made that if reinstatement is ordered the amount ordered should be nil on account of Mr Macklin’s conduct, and there needs to be a very clear message about the inappropriateness of his conduct.

[563] In reply, Mr Anderson submitted that if there were to be deduction on account of misconduct, it would be at around 10% only. A further 20% for failure to mitigate would be warranted.

[564] I have had regard to the Full Bench decision in B, C and D v Australia Postal Corporation T/A Australia Post [2013] FWC 9293 at [118](b) where it was held:

‘There must be a significant discount in order for backpay to reflect the fact of the Appellants’ misconduct, quite apart from any other discounts that may be appropriate to reflect a “fair go all round”, particularly in light of the delay in the resolution of these matters. Obviously income earned in the intervening period must be brought to account.’

[565] Subsequent to that Full Bench decision, presiding member Lawler VP determined the quantum to be awarded:¹⁵⁹

‘I consider that a discount of 75% on the calculated loss is appropriate to reflect both the misconduct and the inappropriateness, in the peculiar circumstances of this case, of holding Australia Post liable for the whole of the very long period that the course of the unfair dismissal applications have taken thus far.’

[566] Having regard for my reasons in the decision and the submissions of the parties and the authorities on the matter of lost pay detailed in this decision, I consider it appropriate to exercise my discretion to make an order for the restoration of some lost pay.

[567] Such order will take into account an amount for the remuneration lost, or likely to have been lost by Mr Macklin due to the dismissal. However, I consider it would have been appropriate to stand Mr Macklin down without pay for no more than 14 days on account of his failure to follow Mr Rivers’ direction, given the 2018 Agreement provides for such a course, and Mr Macklin was already in receipt of a final written warning.

[568] It is very disappointing that upon filing his first witness statement on 2 October 2018, Mr Macklin has made no effort to secure alternative employment. I do not consider it appropriate to make an order of back pay from 2 October 2018 other than at the rate of $1,750 per week. This is a significant discount from the approximate $2,900 per week Mr Macklin was receiving pursuant to his $151,999.64 annual salary. It represents approximately 60% of the full rate. Demonstrated efforts to mitigate the loss of employment would have yielded a smaller or no discount to the annual salary.

[569] I detail below the calculations that I will order BHP to make to Mr Macklin, noting the annual salary of $151,999.64 is an amount of $2,923.07 per week:

Conclusion

[570] Mr Macklin will be reinstated to his former position effective 7 January 2018.

[571] I have determined that BHP is to pay to Mr Macklin the amount of $44,961.49 less taxation as required by law. I consider that remuneration lost, pursuant to 391(3) is broad enough to include superannuation, and note other decisions of the Commission include an order for payment of superannuation on backpay. It is not clear to the Commission the rate of superannuation payable, however I shall order the payment of the Superannuation Guarantee Legislation amount of 9.5% to be paid into Mr Macklin’s superannuation fund. This is an amount of $4,271.34.

[572] A separate order will issue giving effect to this decision.

COMMISSIONER

Appearances:

Mr Rowan Anderson, Construction, Forestry, Maritime, Mining and Energy Union, for the Applicant;

Mr Bilal Rauf, Herbert Smith Freehills, for the Respondent.

Hearing details:

Mackay, 15 & 16 November 2018;

Brisbane, 29 November 2018.

Final written submissions:

Final written submissions for the Applicant, 28 November 2018;

Final written submissions for the Respondent, 28 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR702913>

 1   Statement of Mr Gregory Macklin, 2 October 2018, [3] – [9].

 2   Ibid, [10] – [13].

 3   Statement of Mr Lachlan McNamara, 30 October 2018, LM-28, Clause 5.

 4   Ibid, Clause 8, Clause 10, Appendix 1, Appendix 2.

 5   Ibid, [13].

 6   Ibid, [14].

 7   Ibid, [15].

 8   Ibid, [24] – [26].

 9   Ibid [34].

 10   Ibid, [34] – [36].

 11   Ibid, [37], [41] – [42].

 12   Ibid, Attachment GM-02.

 13   Statement of Mr Gregory Macklin in Reply, 9 November 2018, [32].

 14   Statement of Mr Gregory Macklin, 2 October 2018, Attachment GM03.

 15   Ibid, GM04.

 16   Ibid, GM05.

 17   PN77 – PN103; BMA Enterprise Agreement 2012 cl. 4.1, 4.4, 6.1; BMA Enterprise Agreement 2018 cl 4.1, 6.1.

 18   PN139 – PN145.

 19   PN170 – PN173.

 20   PN201 – PN206.

 21   PN184 – PN189.

 22   PN679 – PN680.

 23   PN403.

 24   PN404 – PN411.

 25   PN419 – PN430.

 26   PN426.

 27   Statement of Ms Rosemary Shanks, 30 October 2018, RS-02.

 28   Statement in Reply of Mr Gregory Macklin, 9 November 2018, [63].

 29   Ibid, [66] – [67].

 30   Ibid, [61].

 31   Above n 1, [20] – [23].

 32   Statement of Ms Rosemary Shanks, 30 October 2018, RS-02.

 33   PN235 – PN268.

 34   PN366 – PN369.

 35   PN683 – PN689.

 36   PN2487 – PN2505.

 37   Statement of Mr Lachlan McNamara, 30 October 2018, LM-24.

 38   PN447 – PN455.

 39   Statement of Mr Lachlan McNamara, 30 October 2018, LM-25.

 40   Statement of Mr Lachlan McNamara, 30 October 2018, LM-26.

 41   PN481 – PN508.

 42   PN558 – PN559.

 43   PN595 – PN607.

 44   PN598 – PN599.

 45   PN635 – PN644.

 46   PN693 – PN695.

 47   PN710 – PN720; PN749.

 48   PN746.

 49   PN758 – PN766.

 50   Statement of Mr Lachlan McNamara, 30 October 2018, LM-13.

 51   Ibid, LM13, Part 5.

 52   PN735 – PN743.

 53   PN834 – PN843.

 54   PN791.

 55   Statement of Mr Simon West, 2 October 2018, [6] – [16].

 56   Ibid, [24] – [28].

 57   Ibid, [29] – [34]; Statement in Reply of Mr Simon West, 9 November 2018, [39] – 40].

 58   BMA Enterprise Agreement 2018, 38.4.

 59   Statement in Reply of Mr Simon West, 9 November 2018, [3].

 60   Statement of Mr Simon West, 2 October 2018, [37] – [44].

 61   Statement in Reply of Mr Simon West, 9 November 2018, [21].

 62   Ibid, [6] – [7].

 63   Statement in Reply of Mr Simon West, 9 November 2018, [14].

 64   PN990 – PN1007.

 65   PN1031 – PN1034.

 66   PN1099 – PN1102.

 67   PN1056 – PN1065.

 68   PN1104 – PN1121.

 69   PN1123 – PN1140.

 70   Statement of Mr Colin Nelson, 2 October 2018, [12].

 71   PN1415 – PN1418.

 72   PN1434 – PN1444.

 73   PN1465 – PN1476.

 74   PN1528 – PN1547.

 75   Statement of Ms Melissa Mouat, 31 October 2018, [14].

 76   Ibid, [15] – [18].

 77   Ibid, [34] – [36].

 78   Ibid, [26] – [28].

 79   Ibid, [39].

 80   PN1733 – PN1738.

 81   PN1740 – PN1750.

 82   PN1765 – PN1768.

 83   PN1787 – PN1794.

 84   PN2185 – PN2195.

 85   PN2214 – PN2220.

 86   PN2223.

 87   PN2228 – PN2240.

 88   PN2375 – PN2385.

 89   PN2299.

 90   Statement of Mr Lachlan McNamara, 30 October 2018, [21].

 91   Ibid, [24].

 92   Ibid, [25].

 93   Ibid, [26].

 94   Ibid, [34] – [36].

 95   Ibid, [38].

 96   PN2529 – PN2533.

 97   PN2531.

 98   Statement of Mr Lachlan McNamara, 30 October 2018, [44].

 99   Ibid, [52].

 100   PN2543.

 101   Ibid, [74].

 102   Ibid, [86]; PN2553.

 103   PN2824 – PN2826.

 104   PN2828 – PN2834.

 105   PN3166 – PN3180.

 106   PN3217 – PN3227.

 107   PN3230 - PN3239.

 108   PN2931 – PN2957.

 109   PN2969 – PN2971.

 110   PN2972 – PN2983.

 111   PN3055.

 112   PN2565 – PN2567.

 113   Exhibit A7.

 114   Ibid.

 115   PN2618; PN2655.

 116   PN2578; PN2675 – PN2676.

 117   PN2762.

 118   PN3272 – PN3279.

 119   PN2835 – PN2838.

 120   PN3160 – PN3161.

 121   PN3747 – PN3795.

 122   PN2857 – PN2859; PN3658 – PN3663.

 123   PN3456.

 124   PN3510 – PN3514.

 125   PN2873; PN2879 – PN2880.

 126   PN3531 – PN3534.

 127   PN3465 – PN3466.

 128   PN3574.

 129   PN3575 – PN3580.

 130   PN3581 – PN3584.

 131   Statement of Mr Phillip Rivers, 30 October 2018, [17] – [18].

 132   Statement of Mr Phillip Rivers, 30 October 2018, [15].

 133   PN3890.

 134   Statement of Mr Phillip Rivers, 30 October 2018, PR-01.

 135   PN3964.

 136   PN4297 – PN4307.

 137   PN4123 – PN4124.

 138   PN4110 – PN4122.

 139   PN4150 – PN4168.

 140   Statement of Ms Rosemary Shanks, 30 October 2018, [5] – [8].

 141   Ibid, [26]; Attachment RS-01.

 142   Ibid, [11].

 143   Ibid, [11] – [15].

 144   Ibid, [17] – [18].

 145   Ibid, [19].

 146   Ibid, [20] – [25].

 147   Ibid, [27]; [31] – [34].

 148   PN3146-3151.

 149   PN3190-3191.

 150   Rail Corporation New South Wales v Vrettos (2008) 176 IR 129.

 151   King v Freshmore (vic) Pty Ltd Print S4213, 17 March 2000 at [24].

 152   RMIT v Asher (2010) 194 IR 1 at 14-15.

 153   Marc Waters v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal Pty Limited [2018] FWC 3285 at [129].

 154   PN2936.

 155   PN2938.

 156   PN2972.

 157   (2003) unreported, PR931440 at [30].

 158   PN767-PN809.

159 B, C and D v Australian Postal Corporation T/A Australia Post (C2011/6623) at [22].