DECISION

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

Kevin Boyle
v
BHP Coal Pty Ltd
(U2019/2902)

Application for an unfair dismissal remedy – Applicant made comment of vulgar and graphic nature while on mine site that may offend others – improved culture in modern workplaces towards offensive conduct of sexual nature – workplace humour – two reasons provided by Respondent as reasons for dismissal not valid reasons - procedural flaws and prejudicial application of Respondent’s investigation procedure into misconduct – alternative procedures available to Respondent for Applicant’s misconduct - Applicant made improper accusations against women in the workplace while downplaying conduct – Applicant’s dismissal not unfair in all the circumstances – application dismissed

[1] Mr Kevin Boyle 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 or the Respondent) on or about 5 March 2019 and that his dismissal was unfair as it was harsh, unjust and unreasonable.

[2] No jurisdictional objections were made to Mr Boyle’s application. I note that while Mr Boyle’s annual earnings in his employment with BHP exceeded the high income threshold applicable at the date of his dismissal, he was employed pursuant to the BMA Enterprise Agreement 2018 (the Agreement) and was therefore an agreement-covered employee.

[3] I am satisfied that Mr Boyle is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Boyle’s application was made within the 21-day statutory time limit. The only matter that I must determine is whether Mr Boyle’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Background

[4] Whilst travelling in a vehicle with three other people on 2 November 2018, Mr Boyle said words to the effect, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally.”

[5] During a meeting on 30 November 2018 to discuss allegations as to what was said by Mr Boyle on 2 November 2018, Mr Boyle repeated the above statement. According to witness evidence of the Respondent, Mr Boyle made this statement more than once during the meeting. Further, the Respondent found that Mr Boyle reminded his employer that he works on a mine site in an apparent effort to explain the appropriateness of his conduct. Mr Boyle denied stating that he worked on a mine site.

[6] Mr Boyle was asked to show cause as to why his employment should not be terminated on account of breaching the BHP Code of Business Conduct and the BHP Charter Values, specifically “Respect” and “Integrity”.

[7] Following receipt of Mr Boyle’s show cause response letter, his employment was terminated by the giving of five weeks’ payment in lieu of notice.

Hearing

[8] This matter was heard before me in Mackay, QLD on 27 and 28 August 2019, and in Brisbane on 16 October 2019. Mr Rowan Anderson, Senior Legal Officer of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) appeared for Mr Boyle. Mr James McLean, Legal Counsel of Employee Relations, BHP Legal and Ms Jodie Dubois, Principal of Employee Relations, BHP appeared for BHP.

[9] Mr Boyle appeared at the hearing and gave evidence in support of his application.

[10] The following persons appeared at the hearing and gave evidence for BHP:

•  Ms Janet Barden, Coal Mining Supervisor, Workpac;

•  Ms Emma Ramirez, Operator, Workpac;

•  Mr Brad Prytherch, Manager Production Coal;

•  Mr Charlie Craig, Superintendent Production Coal;

•  Mr Kyle Harper, Mining Supervisor;

•  Mr Douglas Field-Akred, Specialist Improvement, Production Coal A & I.

[11] Prior to the hearing I ordered Mr Daryl Morris, an employee of BHP to appear and give evidence at the hearing of this matter. Mr Morris appeared and gave evidence at the hearing of this matter as a witness of the Commission.

[12] I note that throughout each party’s written material and during the hearing various persons were referred to by alternate names or nicknames, as follows:

•  Mr Boyle also goes by ‘Yappy’;

•  Mr Morris also goes by ‘Chef’;

•  Mr Harper also goes by ‘Bear’.

BHP’s Policies and Procedures

Charter Values

[13] BHP has at its workplaces, a set of Charter Values which it says are to be applied. It is relevant to set out the BHP Charter Values, which are as follows:

“Sustainability

Putting health and safety first, being environmentally responsible and supporting our communities

Integrity

Doing what is right and doing what we say we will do.

Respect

Embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial.

Performance

Achieving superior business results by stretching our capabilities.

Simplicity

Focusing our efforts on the things that matter most.

Accountability

Defining and accepting responsibility and delivering on our commitments.”

Code of Conduct

[14] BHP has at its workplace a Code of Conduct which it says is to be complied with. It is said that the Code of Conduct describes how BHP put the values described in the Charter Values into practice, along with providing clear expectations of how employees will conduct themselves in their work.

[15] Relevant to this matter is the chapter of the Code of Conduct titled “Workplace Equality and Inclusion”. This chapter, among other things, provides:

“Always

- Demonstrate fairness, trust and respect in all your working relationships.

…

Never

- Behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others.

…

- Engage in physically or socially intimidating behaviours.

… ”

BMA Guideline to Fair Play Disciplinary Procedure

[16] It is helpful to set out BHP’s procedures for handling allegations of misconduct and disciplinary action, which are relevant in this matter. Those procedures are set out in the ‘BMA Guideline to Fair Play Policy’ (the Fair Play Guide).

[17] During the proceedings there was conjecture as to whether the Fair Play Guide applied to Mr Boyle’s employment. Mr Craig’s evidence is that he is aware of the Fair Play Guide, but at the time of the hearing it had been one or two years since he had read it. 1 Mr Craig considered that there was an obligation to apply it and to complete a Just Culture Decision Tree.

[18] In examination-in-chief, Mr Prytherch stated that he did not consider that the Fair Play Guide had any application at the Peak Downs mine site, and that it was simply best practice and good practice to apply the Fair Play Guide. 2 In evidence-in-chief, Mr McLean did not suggest to him that his evidence was incorrect on this issue.

[19] Mr Prytherch gave evidence in cross-examination that following the dismissal, and in preparation for the hearing, he spoke with human resource professionals within BHP. During those discussions he came to the conclusion that the relevant enterprise agreement at the Peak Downs site did not require application of the Fair Play Guide. Accordingly, he had come to the view that it was not mandatory to apply it. 3

[20] Mr Prytherch spoke with HR prior to the dismissal to ensure that he could make additional comments to the Just Culture Decision Tree completed by Mr Craig. 4

[21] Following the evidentiary case, and prior to hearing closing oral submissions, on 2 September 2019, BHP provided to the Commission a copy of the Fair Play Guide. The latest version is version number 1.2, updated on 15 June 2018. The scope of the Fair Play Guide states:

“This Policy applies to all Employees covered by the following industrial instruments as replaced from time to time:

•  BMA Enterprise Agreement 2018;

•  BMA Caval Ridge Mine Enterprise Agreement 2015;

•  BMA Daunia Mine Enterprise Agreement 2014

•  Broadmeadow Mine Workplace Agreement 2016; and

•  Hay Point Services Pty Ltd Enterprise Agreement 2017.”

[22] The Fair Play Guide sets out a four-step disciplinary process to be applied where an employee is found to have engaged in misconduct (apart from serious misconduct):

“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.”

[23] The Fair Play 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 event of misconduct was ‘intentional’ or ‘unintentional’, and the decision-maker may use that finding when considering whether any disciplinary action is to be taken against the employee and the severity of that disciplinary action.

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

•  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’.

Evidence of Mr Kevin Boyle

[25] Mr Kevin Boyle made two witness statements regarding this matter and appeared and gave evidence at the hearing of this matter. 5

Employment history

[26] Mr Boyle commenced employment with BHP at BHP’s Peak Downs Mine (the Mine) on or about 27 November 2011. He had previously worked at BHP’s Norwich Park Mine for approximately three years, although he had been employed by a different entity and contracted to work with BHP during that period. Mr Boyle was aged 56 years at the time of the hearing.

[27] Mr Boyle stated that he was trained to operate a wide range of mining equipment including haul trucks, dozers, wheel dozers, graders, belly dumpers and water carts. He took several extended periods of leave due to illness during his employment with BHP. Mr Boyle was on extended unpaid sick leave throughout the following periods, being nearly four years in total:

•  From December 2014 to February 2017; and

•  From March 2017 to September 2018.

[28] After returning to work in September 2018, Mr Boyle worked as part of the ‘D Crew’ in BHP’s Coal Mining Department. Upon returning to work in September 2018, he completed refresher training which included reviewing BHP’s standard operating procedures, safety and competency requirements and BHP’s Code of Conduct (the Code). Mr Boyle stated that the refresher training was completed on a computer and did not include any in-person training or a review of all of BHP’s policies. He stated that after completing the refresher training he was not aware of any significant changes to how on-site conduct was approached at the Mine. During cross-examination, Mr Boyle conceded that although he read an excerpt of the Code during his training, he had not taken it upon himself to read the Code in full. 6

2 November 2018 and stand down from employment

[29] On 2 November 2018, Mr Boyle attended the Mine at approximately 6:00am to commence his day shift. He attended a union meeting that morning which lasted approximately two hours, which meant that he started his shift later than usual.

[30] At about 9:30am he was travelling in a light vehicle with three other people; Ms Emma Ramirez, Ms Janet Barden and Mr Daryl Morris. Mr Boyle stated that all of those persons were travelling to the ‘4 North ROM’ area within the Mine. Mr Boyle’s first recollection is that Ms Barden was driving the vehicle, Mr Morris was seated in the front passenger seat, and he and Ms Ramirez were seated on the back-passenger seats. He later stated that it was possible that Mr Morris had been driving the vehicle.

[31] All of the vehicle’s occupants were engaged in conversation, but Ms Barden and Ms Ramirez were doing most of the talking. Mr Boyle’s evidence relevant to what was said between the car’s occupants has varied at times and is produced below:

(a) Interview of 30 November 2018: [Respondent notes]

“Mr Craig: Can you tell me why you made this comment?

Kevin claims the people in the car were talking about rooting and how the girls get out of having sex with their partners whilst driving in the car.

Kevin said that the girls tell their husbands they have a headache so they don’t have to have sex.

Mr Craig: Do you believe that you have acted in accordance with the expectations outlined in this training? Why / why not?

Said no but they were talking about rooting and I did not say cock.

Mr Craig: Do you believe you have conducted yourself in accordance with our Code of Business Conduct and Charter Values? Why/why not?

Kevin said no and that he thought he knew them well enough to say the joke and cause they were talking about sex it was ok

In hindsight, what have you learned and what would you do differently next time?

Keven said Charlie they were talking about “rooting rooting”

In relation to this investigation, is there anything else that you believe is relevant, or that you would like us to take into consideration?

Again Kevin said that they were talking about sex and that they should [have] come to him.”

(b) Letter to Mr Craig dated 4 December 2018:

“….I have reflected on the situation further since our meeting and I now appreciate that I should have not made the comment and I apologise. I appreciate in hindsight that the comment was not appropriate for the workplace. The comment was not intended to offend.

Whilst I accept that my statement was not appropriate, I note that it was made in the context of a conversation that was occurring. I often have conversations in the nature of banter that go back and forth. At the time, I considered this to be one of those occasions and that no one would be offended. The conversation that preceded my comment, which was engaged in by others (woman sitting in the back of he car) rather than myself, related to “men’s and woman’s martial obligations” and “rooting”, and, to the best of my recollection, included comments such as the following:

“When my husband wants sex and I don’t, I use the old headache excuse and it works for me.”

The above indicates that there was some context to the conversation and that the others present were involved in a conversation involving sex. I feel that I have been singled out and that given my conduct is being investigated, it is fair that the full context is known….”

(c) Letter to Mr Prytherch dated 6 February 2019:

“…I have reflected on the situation and appreciate I should not have made the comment. I have apologised. The comment was not intended in any way to be offensive. The comment was made in the context of the conversation that was occurring. Other comments of an analogous nature had been made by the others present at the time……”

(d) Show cause response dated 27 February 2019:

“…My comment was not in response to Ms Barden saying she had a headache. Instead, the joke was said following on from a conversation whereby Ms Barden and Ms Ramirez. They were having a discussion which effectively included a statement “When my husband wants sex and I don’t, I use the old headache excuse and it works for me”. I have explained this matter previously in detail…..”

(e) First witness statement:

“To the best of my recollection the conversation then proceeded as follows:

Ms Barden: When my husband wants sex [or a root] and I don’t, I use the old headache excuse and it works for me.

Me: If my old girl has a headache, I crush up a Panadol and rub it on my old fella and tell her she can have it orally or anally.

Everyone: Laughter.”

(f) Reply witness statement

“…I recall there was discussion, involving Ms Barden, to the effect that she had had her husband or partner “wrapped around her finger”. The conversation was light hearted and included a suggestion that sex or sexual favours could be withheld using a headache as an excuse. The conversation was to the effect that she was in charge of her household. Whilst the word “sex” or “root” might not actually have been used there was a discussion to that effect.”

(g) Evidence during the hearing:

[32] Mr Boyle recalled that all of the vehicle’s occupants laughed at his joke and continued to converse after his joke. Mr Boyle stated that none of the occupants raised an objection to his joke at the time and he did not believe that any of the occupants considered his joke to be inappropriate. After he made his comment, he left the vehicle to go for a smoke. Ms Ramirez also went for a smoke and asked to borrow either his lighter or a cigarette from him.

[33] Mr Boyle arrived at the ‘4 North ROM’ area and went about his work as usual without any issue. He worked shifts on both 3 and 4 November 2018 without any issue being raised with him. Mr Boyle stated that he worked with Ms Barden at various times on 3 and 4 November 2018 and on one of those occasions Ms Barden ‘swapped out’ with another machine operator after they interacted. Mr Boyle did not recall that Ms Barden appeared uncomfortable in any way on either 3 or 4 November 2018.

[34] Mr Boyle next attended for work on his next swing on 14 November 2018. At about 9:30am he had a short conversation with Ms Ramirez, where she joked with Mr Boyle about him being on the ‘mummy crew’ on account of commencing work late after having been at a meeting. The ‘mummy crew’ is a light-hearted description of those workers who commence work later in the day.

[35] At approximately 10:30am while working, Mr Boyle was instructed through his two-way radio to attend the Mine’s site office, which he did.

[36] Mr Boyle attended the Mine’s site office and met with Mr Craig. Mr Matthew Rake, Supervisor Coal Mining and Ms Renae Berrigan, Supervisor attended the meeting as representatives of BHP. Ms Holly Lewiston of the CFMMEU’s Peak Downs Lodge attended the meeting as Mr Boyle’s support person. Mr Craig informed him that he was being stood down from his employment with pay while an investigation was conducted into his conduct on 2 November 2018.

[37] Mr Boyle stated that prior to 2 November 2018 he had never received any formal warnings regarding use of inappropriate language or conduct similar to the allegations against him arising from the events of 2 November 2018.

Meeting of 30 November 2018 and first response to allegation

[38] On 30 November 2018 Mr Boyle attended a meeting with Mr Craig regarding his conduct on 2 November 2018. Ms Lewiston again attended as Mr Boyle’s support person. Mr Kyle Harper also attended the meeting as BHP’s representative.

[39] During the meeting Mr Boyle was provided with a letter dated 29 November 2018 authored by Mr Craig, which stated in part:

“…

On 2 November 2018 at 10:30am you were travelling in a light vehicle to the 4 North Caval ROM Crib hut to hot seat trucks and loading units. In the vehicle your crew members present were Emma Ramirez, Janet Barden and Daryl Morris. It is alleged that when Janet mentioned that she had a headache you have made inappropriate comments.

As a result an investigation has commenced into your conduct following this incident.

Allegations

It is alleged that on 2 November 2018 your response to Janet Barden was to the effect of:

‘When my missus says she’s got a headache I crush Panadol and put it on the end of my cock and ask her whether she wants it orally or anally.’

You will be required to attend a meeting to respond to the allegations outlined in this letter at 12:00pm Monday 3 December 2018. You may provide any information that you think will assist me, or that you would like to have considered in response to the Allegations.

Investigation Process

It is important for you to know that at this stage, I have not made any findings about the Allegations. This is your opportunity to put forward your response, so that it can be fully considered before any decision is made.

I may also need to meet with you to discuss your response. You may bring a support person or Employee Representative to the response meeting and to any other meetings held as part of this investigation.

Direction not to attend work

In accordance with the stand aside letter issued to you on 14 November you are also directed not to attend work until further notice from the Company while we complete our investigation. You will continue to be pad during this time and must be available at the Company’s request. We currently have your contact detail on file as [phone number] (mobile).

Please let us know if this contact detail is incorrect.

Potential Breaches

You should be aware that, if substantiated, your conduct may be in breach of Company policies and procedures, including the following:

1. BHP Billiton Code of Business Conduct

2. BHP Charter Values, specifically Respect.

Kevin, the allegations are serious. If substantiated they may result in disciplinary action being taken against you (which could include a warning or termination of your employment).

Confidentiality

It is important that you keep in mind that the Allegations and the Investigation are confidential. You must not discuss this matter with any other person unless they are acting as your support person or Employee Representative. Everyone involved in this process, including your support person or Employee Representative, is also required to keep the matter confidential.

Employee Assistance Program (EAP)

Kevin, I understand that this may be a difficult time for you. I wish to again extend to you the offer of any assistance you may require regarding this matter and also remind you that the Company’s Employee Assistance Program (EAP) is available to you.

In the meantime, if you have any questions about the investigation process, please feel free to contact me on [phone number].

Yours sincerely

Charlie Craig

Superintendent Coal Mining

Peak Downs Mine”

[40] Mr Boyle recalled that during the meeting of 30 November 2018 Mr Craig read out to him the statement that he was alleged to have made on 2 November 2018, being “when my missus says she’s got a headache I crush Panadol and put it on the end of my cock and ask her whether she wants it orally or anally”. Mr Boyle recalled that he agreed he had made a statement to that effect as a joke, but insisted that he had used the words ‘old fella’ instead of ‘cock’.

[41] During cross-examination, Mr Boyle stated that during the meeting Mr Craig had asked him to repeat his comment of 2 November 2018, and he had repeated it. He denied that he had used a croaky voice when retelling the joke or described that the ending of the joke should be said ‘as a doctor says it’, contrary to the evidence of Mr Craig set out below at [142]-[144]. 7

[42] During the meeting of 30 November 2018, Mr Boyle stated that he explained to Mr Craig that on 2 November 2018 Ms Barden and Ms Ramirez had been talking about sex with their partners and using headaches as an excuse to avoid having sex with their partners, and his statement had been made in response to and as a continuation of that conversation. Mr Boyle recalled that he told Mr Craig all of the vehicle’s occupants had laughed at his statement. During the hearing, Mr McLean noted to Mr Boyle that Mr Craig’s notes of the meeting reflected that Mr Boyle had been adamant that the women in the vehicle on 2 November 2018 had used the words ‘root’ or ‘rooting’ prior to Mr Boyle’s comment, contrary to Mr Boyle’s evidence at the hearing that he could not recall those words being used. Mr Boyle denied that he had purposefully ‘stepped away’ from his original recollection that ‘rooting’ had been referred to, and stated during the hearing that he simply could no longer recall whether the word ‘rooting’ had been used due to the effluxion of time. 8

[43] Mr Boyle recalled that Mr Craig had asked him whether he had thought his statement was offensive and Mr Boyle had responded that he hadn’t thought so given the context of the preceding conversation. Mr Boyle recalled that he told Mr Craig his statement had not been directed at anyone and had only been meant as a joke. Mr Boyle recalled that he said to Mr Craig that if anyone of the vehicle’s occupants had been offended, then he would have thought they would approach him about it.

[44] Mr Boyle recalled that Mr Craig told him, “This time you have gone too far”. During the hearing, Mr Boyle emphatically denied that he put forward during the meeting of 30 November 2018 that he ‘worked on a mine site’ as an excuse for his comment of 2 November 2018, although he agreed that during that meeting he said words to the effect, “You see it [conduct similar to his comment of 2 November 2018] quite a bit out at the mine”. 9

[45] Mr Boyle stated that by the end of the meeting of 30 November 2018 he had reflected on the allegations against him and his actions on 2 November 2018 and had concluded that he had acted inappropriately. 10 In cross-examination the following exchange occurred:11

[46] On 4 December 2018, Mr Boyle emailed Mr Craig responding to the allegations against him. Mr Boyle’s letter stated in part:

“I refer to your letter of 29 November 2018 in relation to the above matter and the events of 2 November 2018. I provide a response below as to the allegations raised by you.

I accept that I made a comment on the day in question. The comment I made was in the nature of joke and was not intended to cause offence. I deny that the words I used are those contained in your letter. The words I used were as follows:

‘if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can either have it orally or anally’

I have reflected on the situation further since our meeting and I now appreciate that I should not have made the comment and I apologise. I appreciate in hindsight that the comment was not appropriate for the workplace. The comment was not intended to offend.

Whilst I accept that my statement was not appropriate, I note that it was made in the context of a conversation that was occurring. I often have conversations in the nature of banter that go back and forth. At the time, I considered this to be one of those occasions and that no one would be offended. The conversation that preceded my comment, which was engaged in by others (woman sitting in the back of the car) rather than myself, related to “men’s and woman’s marital obligations” and “rooting”, and, to the best of my recollection, included comments such as the following:

‘When my husband wants sex and I don’t, I use the old headache excuse and it works for me’

The above indicates that there was some context to the conversation and that the others present were involved in a conversation involving sex. I feel that I have been singled out and that given my conduct is being investigated, it is fair that the full context is known.

At the time, my comment did not appear to me to be out of the context of the conversation. I accept in hindsight that I should not have made the comment/joke. I did not perceive anyone to be offended by the comment at the time. Indeed, from my observation it appeared the others though it funny and the conversation carried on. My comment was not directed at any person in particular and I was not made aware of any objection or complaint at the time. However, again, I appreciate that I should not have made the comment.

If I inadvertently offended any member of my crew in the car at the time, I wholeheartedly apologise. I will ensure going forward that this type of thing will never happen again. I have not been subject to such allegations previously and would be content to revisit the code of conduct and do any further training that might be beneficial.

I am a consistent and all-round operator and have a very good work record. My record is absent of any warnings or steps in relation to misconduct and these allegations are out of character. I ask that you accept my apology and allow me to return to work as soon as possible to continue to be an integral part of my crew. I note I have been stood aside from my employment and, in the circumstances, I do not believe any serious disciplinary action would be warranted.

Yours sincerely

Kevin Boyle”

Further particularisation of allegations and second response

[47] On 30 January 2019 Mr Boyle received a text message from Mr Craig attempting to arrange a meeting on 5 February 2019. Mr Boyle contacted Mr Stephen Smyth, CFMMEU District President to see whether Mr Smyth could attend the meeting as Mr Boyle’s support person. No meeting was held on 5 February 2019.

[48] On 5 February 2019 he received a letter from Mr Prytherch regarding the allegations against him and which stated in part:

“On 30 November 2018, you met with Charlie Craig (Superintendent Coal Mining) and Kyle Harper (Supervisor Coal Mining). During this meeting you were provided with correspondence dated 29 November 2018, requesting your response to the allegations made against you. You then provided a written response on 4 December 2018.

I would like to provide you with a final opportunity to respond to the allegation and the witness statements.

Allegation

It is alleged that on 2 November 2018 when Janet Barden mentioned to you that she had a headache you said in response: “I once had a girlfriend who had a headache so he crushed up a heap of Panadol up and rubbed it all over his dick and said here bitch do you want it orally or anally”.

Witness statements

Witness statements have been collected as part of the investigation. The witnesses have reported you stated the following in response to Janet Barden’s comment relating to her headache:

Witness 1 alleges:

Kevin Boyle stated that he had a girlfriend once who had a headache so he crushed a heap of Panadol up and rubbed it all over his dick and said “here bitch do you want it orally or anally”.

Witness 2 alleges:

When one of the girls mentioned that they had a headache, Kevin then said “when my misses has a headache I put a Panadol on my cock and get her to suck it off”.

Witness 3 alleges:

Kevin known to us as Yappy; has comented something like “when his wife says to him she’s got a headache, he said, he’ll crushed a Panadol and he will put it on his personal (expletive) and say you either take it orally or anally”.

Investigation Process

At this stage I have not made any findings about the allegation. This is your opportunity to put forward your response to the allegation and witness information presented above.

Please provide your response to me by no later than 5pm 7/2/19 by email [email address]. If you do not respond by this time, I will have no alternative but to make a finding with relation to your alleged conduct based on the information presently available.

I may need to meet with you to discuss your response. You may bring a support person or Employee Representative to the response meeting and any other meetings held as part of this Investigation. You will continue to remain stood aside with pay while we complete this investigation.

Potential Breaches

I remind you that, if substantiated, your conduct may be in breach of Company policies and procedures, including the following:

BHP Code of Conduct

BHP Charter Values; specifically Integrity and Respect

Kevin, the allegations are serious. If substantiated, they may result in disciplinary action being taken against you up to and including the termination of your employment.

…[sic]”

[49] Mr Prytherch’s letter referred Mr Boyle to BHP’s Employee Assistance Program and instructed him to keep the investigation of the allegations against him confidential.

[50] On 6 February 2019 Mr Boyle emailed Mr Prytherch in response to the letter of 5 February 2019. Mr Boyle was unsure why the words attributed to him in the letter of 5 February 2019 were different than the words used in the 29 November 2018 letter, and he believed that the investigative process to-date had continued for a significant amount of time and had been unfair. Mr Boyle maintained that the words he used on 2 November 2018 were those described in his response of 4 December 2018, and he denied that he had said any of the variously phrased statements attributed to him in the 5 February 2019 letter.

[51] Particularly, Mr Boyle denied having used the words ‘here bitch’ at all, and noted that the letter of 5 February 2019 did not refer at all to the context of the conversation on 2 November 2018 during which he had made the statement and which Mr Boyle had described in his response of 4 December 2018. Mr Boyle stated that it appeared to him that the words that he was alleged to have used in the ‘allegation’ set out in the letter of 5 February 2019 were a combination of the three witness accounts aimed to reflect as poorly on Mr Boyle as possible.

[52] Mr Boyle noted that the witness statements within the 5 February 2019 letter had been put to him 12 weeks after 2 November 2018, and such a delay was prejudicial to him. During the hearing, Mr Boyle agreed when asked by Mr McLean that he and Mr Craig had agreed to certain delays in the investigation and that Mr Craig had offered to drive Mr Boyle to site for certain meetings. However, Mr Boyle stated that he had not agreed to the investigation being paused while Mr Craig took leave in December 2018; he had not known that Mr Craig was taking leave and had merely been informed that the investigation was being paused. Further, Mr Boyle denied that he had contributed to the delay in the investigation and stated that BHP could have rescheduled meetings in the investigation process to alternate times on the same day, rather than delaying process for weeks or months. 12 Mr Boyle requested to be provided with all relevant witness statements produced in relation to the investigation of his conduct on 2 November 2018.

[53] Mr Boyle reiterated that he had reflected on his comments and acknowledged that he should not have made the comment and the other matters set out in his response of 4 December 2018.

Meeting of 21 February 2019 and show cause response

[54] On 21 February 2019 he met with Mr Craig and Mr Douglas Field-Akred at the CFMMEU’s Dysart offices regarding the allegations against him. Ms Kath King, an office employee of the CFMMEU attended the meeting in person. Mr Smyth attended the meeting by telephone conference. During the meeting, Mr Craig provided to Mr Boyle and read aloud a letter authored by Mr Prytherch requiring him to show cause as to why his employment should not be terminated (the Show Cause Letter). The Show Cause Letter stated:

“Dear Kevin

Allegations about your conduct – Findings and Outcome of the Investigation

I refer to the Company’s investigation into your conduct on 2 November 2018. I also refer to your correspondence to me dated 6 February 2019, in which you requested a full copy of all relevant witness statements. I note that you have already been provided with all relevant information to enable you to respond to the allegations about your conduct and accordingly I will not be providing you with full copies of any witness statements.

As discussed with you in our meeting today, 21/02/2019, the investigation is now complete and findings have been made.

Findings

In reaching the following findings I have considered all relevant information. I have taken into account all of the information that was collected throughout the investigation, including your responses and the information provided by other parties. The investigation found that:

•  On 2 November 2018 at approximately 10.30am you made inappropriate comments in the presence of Emma Ramirez, Janet Barden and Darrel Morris. Specifically, you stated words to the effect of “if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can either have it orally or anally”.

•  You made the above comments in response to Janet Barden after she mentioned to the group that she had a headache.

It is also noted that during the investigation meeting on 30 November 2018, you were asked by Charlie Craig (Superintendent Coal Mining) and Kyle Harper (Supervisor Coal Mining) if you felt your comments were appropriate. You stated that you felt your comments were “funny” and that it was a joke. You then proceeded to repeat the joke to Mr Craig and Mr Harper, who told you your conduct was not acceptable. During this meeting you also reminded Mr Craig an Mr Harper on multiple occasions that “you work on a mine site”, in an apparent effort to explain the appropriateness of your conduct.

Breaches

I find your conduct on 2 November 2018 and again in the investigation meeting on 30 November 2018 unacceptable and in breach of:

1. The BHP Code of Business Conduct: Workplace equality and inclusion chapter, specifically:

a. Always demonstrate fairness, trust and respect in all your working relationships;

b. Never behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others;

c. Never engage in physically or socially intimidating behaviours.

2. BHP Our Charter Values, specifically: Respect and Integrity

Outcome – Show Cause

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.

You are invited 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 4pm on 26/02/2019 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 relations to your employment based on the information presently available.

…”

[55] The Show Cause Letter referred Mr Boyle to BHP’s Employee Assistance Program and instructed him to keep the investigation of the allegations against him confidential.

[56] Mr Boyle recalled that either he or Mr Smyth requested that the witness statements referred to in the letter of 5 February 2019 be produced to Mr Boyle, and Mr Craig responded that the witness statements would not be produced.

[57] Mr Boyle recalled that Mr Smyth said to Mr Craig that Mr Boyle’s repetition of his alleged statement during the meeting of 30 November 2018 should not form a further allegation against Mr Boyle.

With a head like that, it should ache

[58] In the written material before the Commission, it was alleged that when Mr Boyle met with BHP managers on 21 February 2019, he had said in reference to Ms Barden, that if she had said she had a headache, he used the words, “With a head like that, it should ache.”

[59] In cross-examination, Mr Boyle confirmed that during the meeting of 21 February 2019 he had used the words, “with a head like that, it should ache” as described in the evidence of Mr Craig at [152] and Mr Field-Akred at [200]. However, Mr Boyle did not agree that he had made that comment in reference to Ms Barden. Rather he said that he explained to Mr Craig and Mr Field-Akred that if a male, good friend of Mr Boyle’s had said to him that he had a headache, Mr Boyle would have responded, “with a head like that, it should ache”. He denied that he would have said that to a woman or to someone that was not a good friend. He also denied that he had been trying to make another joke during the meeting itself. 13

[60] On 27 February 2019 he emailed Mr Prytherch his response to the Show Cause Letter.

[61] Mr Boyle noted in his response that he had remained stood down from his employment since 14 November 2018, which he submitted was an unjustifiably long period, was unwarranted, and any dismissal from his employment would have an additional, significant impact on him as a result of the lengthy stand down period and was a reason unto itself that he should not be terminated.

[62] Mr Boyle noted in his response that the statement he was alleged to have made on 2 November 2018 had changed from the letter of 29 November 2018 to the findings made in the Show Cause Letter, without any explanation for that change. Mr Boyle responded that BHP had not addressed matters raised in his previous responses in any meaningful way. Mr Boyle relied upon his response of 4 December 2018 and maintained that the words he had used on 2 November 2018 were, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it either orally or anally”. Mr Boyle maintained that he had made his statement in the context of and continuing a conversation between Ms Barden and Ms Ramirez which had included a statement to the effect of, “When my husband wants sex and I don’t, I use the old headache excuse and it works for me”. Mr Boyle stated in his response that his intention to make the comment as a joke rather than to cause any offense should weigh in favour of his continued employment.

[63] Mr Boyle noted that the Show Cause Letter included findings that his conduct during the meeting of 30 November 2018 had been unacceptable as a result of him repeating his statement of 2 November 2018 to Mr Craig and Mr Harper, maintaining that the comment had been a joke and attempting to explain his conduct on the basis that he ‘worked on a mine site’.

[64] Mr Boyle noted in response that the suggestion that he had acted inappropriately on 30 November 2018 had not been raised until approximately two months later, and submitted that it was unfair to be criticised for simply repeating his statement in the context of the investigation, particularly in light of his commitment not to make similar statements again. Mr Boyle stated that if BHP was suggesting he had acted inappropriately on 30 November 2018, then he should be given a further opportunity to respond to that allegation.

[65] Mr Boyle denied in his response that he had said, “I work on a mine site” during the meeting of 30 November 2018. 14 He maintained, however, that it was not unusual in his experience to encounter jokes and banter similar to his statement of 2 November 2018 in the course of his employment. Mr Boyle maintained that despite his comments about similar jokes and banter on the mine site, he continued to view his statement of 2 November 2018 as inappropriate, and he had committed not to make similar statements again.

[66] Mr Boyle stated in his response that he had reflected on his comments and now appreciated that he should not have made the comment, although it was not intended to be offensive and was given in the context of conversations occurring at the time. Mr Boyle noted that none of the vehicle’s occupants had objected to the statement at the time and the other vehicle occupants had laughed at the comment.

[67] Mr Boyle noted in his response that he had not been provided with any of the ‘just culture’ paperwork completed as part of the investigation, and he requested an opportunity to review those documents and provide a response. Mr Boyle reiterated that the Show Cause Letter made no reference to Mr Boyle’s explanations about the context in which he had made his statement of 2 November 2018 and stated that if BHP was considering making adverse findings against him despite his explanation, that he should be given an opportunity to respond to BHP’s concerns before such findings were made.

[68] Mr Boyle stated that he had apologised for the comment. Mr Boyle stated that he was committed to meeting BHP’s expectations and would undergo any additional training or re-training that the BHP considered appropriate. He stated that he was willing to participate in mediation with any person offended by his statement.

[69] Mr Boyle stated that he was committed to returning to work with BHP at the Mine for the foreseeable future. Mr Boyle submitted that dismissing him from his employment would have ‘devastating impacts’ on him. He would be unable to meet his significant financial commitments, including a sum of approximately $91,000 that he owed to BHP, 15 and would be forced to move from the BHP-owned house that he resided in. He may be forced to leave his community in Dysart, QLD, which he had lived in for 15 years.

[70] Mr Boyle noted that he was of Aboriginal heritage, and his dismissal may force him to leave his ‘large and very close family’ within his community, including his brother who lived locally. Mr Boyle submitted in his response that he was married and had raised 12 children, all of whom were adults and had left home. Mr Boyle noted that he and his wife cared for Mr Boyle’s 12-year-old niece part-time.

[71] Mr Boyle stated in his response that he had been employed by BHP for approximately 16 years, although he acknowledged during the hearing that that figure was incorrect. 16 He had no relevant record of disciplinary action and had never previously been accused of similar inappropriate conduct and further similar inappropriate conduct was unlikely given his commitments to address his conduct. He was a skilled operator with a varied skillset and it would take a significant period of time to train another employee to his level of skill.

[72] Mr Boyle noted that he had earlier been on unpaid sick leave for more than four years and that his prospects of finding alternative work would be reduced because of that period of leave.

[73] Mr Boyle requested that BHP consider all alternatives to his dismissal and he requested to return to work immediately.

Termination of employment

[74] On 5 March 2019 he received a call from Mr Craig instructing him to attend a meeting with him at 4:00pm that afternoon. Mr Boyle attended the meeting with Ms King, and Mr Smyth was joined to the meeting by telephone.

[75] During that meeting Mr Craig handed to Mr Boyle a letter dated 4 March 2019, authored by Mr Prytherch informing Mr Boyle that he was dismissed from his employment effective 5 March 2019 (the Termination Letter). The Termination Letter stated:

“Dear Kevin

Your employment

I refer to the Company’s investigation into your conduct. I also refer to the meeting on 21^st February 2019, and the correspondence (“Show Cause Letter”) dated 19^th February 2019 informing you of the findings of the investigation and asking you to show cause as to why your employment should not be terminated. This meeting was attended by yourself, Charlie Craig (Superintendent Coal Mining), Doug Field-Akred and Stephen Smyth as your support person.

You submitted your written response to the Show Cause Letter on 27 February 2019. I have now considered your response. I note in your response you requested further documentation; however I am satisfied you have already been provided with all relevant information to respond to the allegations and findings made.

Outcome – Termination of Employment

Kevin, I have taken all relevant matters into account, including the investigative findings, your written response to the Show Cause Letter and your employment history.

The findings against you are serious in nature, and are entirely inconsistent with the continuation of your contract of employment. Your conduct is a serious breach of the BHP Code of Business Conduct and the BHP Charter Values. In the circumstances I have lost confidence that you will not engage in similar conduct going forward. Accordingly, I have decided to terminate your employment with effect from today, 5^th March 2019.

In accordance with the BMA Enterprise Agreement 2018, BMA will make a payment to you equivalent to five (5) weeks’ pay in lieu of notice of termination of your employment.

…”

[76] The Termination Letter went on to state that Mr Boyle would be paid all outstanding accrued entitlements, he remained bound by his contractual post-employment obligations and he must return all property of BHP by 8 March 2019.

Events since termination and attempts to mitigate loss

[77] Following his dismissal, Mr Boyle prepared an up-to-date CV, searched online job boards and made enquiries about several different mining positions including to ‘Global Product Search’, ‘WorkPac’ and ‘Onekey’, although he was unsuccessful in those applications. The day following his dismissal from BHP, Mr Boyle applied for a job at ‘Thiess’ and signed a ‘letter of offer’ for a job which was to commence on 13 June 2019. However, approximately one week before commencing that position, Mr Boyle was contacted by Thiess and informed that he was no longer required. He was paid two weeks’ notice in lieu by Thiess.

[78] In cross-examination, Mr Boyle was asked why the employment with Thiess ended. The following exchange occurred: 17

[79] Mr Boyle was asked if he had failed a drug and alcohol test while attending Thiess, and he answered yes, he had. When contacted over the phone and informed his services would not required, he was not provided with a reason, and was told by Thiess that they did not need to provide to him a reason. The following exchange occurred: 18

[80] Throughout March 2019, he had, with the assistance of his representative obtained from BHP records for his completed training courses, although the copy provided to him was incomplete. At the time he made his written statement, Mr Boyle was yet to receive an accurate training transcript.

[81] Mr Boyle stated that his final payslip from BHP listed a ‘loan balance’ amount of $91,724.00 which BHP claimed comprised overpayments made to him during his extended period of sick leave. Mr Boyle had already made arrangements with BHP to pay off that overpayment, but those arrangements were affected by the termination of his employment.

[82] During the hearing, Mr Boyle stated that he had commenced employment at a mine in Blackwater, approximately one week before the hearing of this matter. He said it is a similar position as he had held with BHP. He had applied for that position approximately one month before the hearing of this matter, and after his employment with Thiess fell through. 19

[83] Mr Boyle maintained that he wished to be reinstated to his employment with BHP and return to work at the Mine. Mr Boyle considered that he would not have any issue working with any other employee at the Mine if he were reinstated.

Telephone calls with Mr Craig following dismissal

[84] During the hearing, Mr Boyle was asked to respond to Mr Craig’s evidence that following his dismissal, he had called Mr Craig about accessing copies of his training records and during that call, Mr Boyle had said to Mr Craig in a raised voice and an aggressive tone, words to the effect, “You fucking cunts won’t let me get a job anywhere”. Mr Boyle vehemently denied that he had sworn at Mr Craig during that phone call. Mr Boyle stated that he had thought Mr Craig was doing him a favour by attempting to provide him with his training records, and he had no reason to swear at Mr Craig. 20

[85] Mr Boyle stated further during the hearing that he had had a further phone conversation with Mr Craig regarding questions that Mr Boyle had been asked by his insurers about the nature of his dismissal. Mr Boyle stated that Mr Craig had agreed to write to Mr Boyle’s insurers and confirm that he had not been dismissed for fraud or any similar allegations, although Mr Craig had never in fact written such a letter. 21

‘ATM incident’ involving Ms Ramirez

[86] Mr Boyle was recalled on the second day of hearing to give evidence in respect of the ‘ATM incident’ raised by Ms Ramirez during oral evidence, which is discussed below at [134] – [136]. He stated that the first he had heard of Ms Ramirez’ allegations regarding the ATM incident was on the first day of hearing. Mr Boyle denied that the ATM incident happened at all, and stated that he had not seen Ms Ramirez at all between 14 November 2018 and the first day of hearing. Further, Mr Boyle stated that he and his wife share a car and his wife uses their car in connection with her own employment on weekdays from approximately 2:00pm until 5:30pm. Mr Boyle stated that he lives about two miles outside of town and he does not generally leave home while his wife has their car. 22

[87] In cross-examination on this issue, Mr Boyle stated that there is only one local shopping centre that he typically goes to, which is the shopping centre where Ms Ramirez says the ATM incident occurred, although Mr Boyle stated that he does not go to that shopping centre regularly as his wife does the shopping. Mr Boyle did not recall ever yelling or raising his voice at anything or anybody while he had been at the shopping centre. 23 Mr Boyle conceded that while he and his wife share a car, it is possible that he could have been driven to the shopping centre by his brother or another family member while his wife was using their car. Mr Boyle stated that he had been shocked and disappointed to hear Ms Ramirez’ evidence about the ATM incident. He did not think that she was lying about the incident but thought that she must have been mistaken about the incident.24

Seeing Ms Barden at ‘Mitre 10’

[88] During the hearing Mr Boyle noted that he had run into Ms Barden on one occasion following his dismissal. He recalled that he and his wife had been at the Moranbah ‘Mitre 10’ hardware store when he had come across Ms Barden. Mr Boyle recalled that he and Ms Barden made eye contact and Mr Boyle nodded at her, said, “Good morning” and walked away. He recalled that he immediately walked back to his car to avoid further contact with Ms Barden. 25

Evidence of Mr Daryl Morris

[89] Mr Daryl Morris gave a written statement regarding this matter and appeared and gave evidence at the hearing. 26

[90] On 2 November 2018 he was working on the Mine on a ‘loader’. During his shift he was ‘swapped out’ of the loader by another employee so that he could take his crib break. Mr Morris recalled that the employee that swapped with him arrived at the loader in a light vehicle which also carried Mr Boyle, Ms Ramirez and Ms Barden. Mr Morris recalled that Mr Boyle and Ms Ramirez were in the rear passenger seat, Ms Barden was in the front passenger seat and Mr Morris took over driving the vehicle. Mr Morris stated that they drove to the ‘go line’ as Mr Boyle and Ms Ramirez were scheduled to swap out two other employees for their crib break. Mr Morris could not recall why Ms Barden had been in the vehicle.

[91] Mr Morris stated that during the drive either Ms Barden or Ms Ramirez had said that they had a headache, or at the very least, a headache was mentioned. A conversation had followed about having a headache but Mr Morris could not recall the specifics of that conversation. 27 When put to him by Mr McLean, Mr Morris could not recall that the word ‘rooting’ was used in the conversation.28

[92] Mr Morris did recall that during the conversation Mr Boyle stated, “When my missus has a headache I put Panadol on my cock and get her to suck it off”. 29 Mr Morris recalled that everyone in the vehicle ‘had a bit of a laugh’ about Mr Boyle’s comment and the conversation turned to another topic. During the hearing, Mr Morris stated he didn’t have any particular view on Mr Boyle’s comment at the time. He said that he had ‘heard worse come out of women’s mouths’ on the mine site and he did not think anyone in the vehicle had been offended by Mr Boyle’s comment.30 Mr Morris recalled that the vehicle had been parked at the time of Mr Boyle’s comment.31

[93] Mr Morris recalled that he dropped off Mr Boyle and Ms Ramirez, and picked up the two employees that had been swapped out, and then he, Ms Barden and the two other employees drove back to the ‘2 South’ crib hut. Mr Morris estimated that he drove the vehicle for a total of 20 minutes and Mr Boyle and Ms Ramirez were in the vehicle for about 10 minutes while he was driving. When asked during the hearing, Mr Morris did not recall that Ms Ramirez got out of the vehicle for a cigarette after Mr Boyle’s comment. 32

[94] A few days after 2 November 2018 he was approached during his shift by his Supervisor, Ms Renae Berrigan, who asked him about a comment that Mr Boyle had made while in the light vehicle asking Ms Barden to suck his cock. Mr Morris said to Ms Berrigan that that was not what Mr Boyle had said, and Mr Boyle’s comment had been in regard to his Mr Boyle’s wife, and not Ms Barden or anyone that was in the vehicle. Mr Morris stated that Ms Berrigan appeared surprised and walked away.

[95] Approximately two weeks after his discussion with Ms Berrigan he was asked by his Supervisor, Mr Matthew Rake to meet with him in his office after a morning tool box meeting. He attended Mr Rake’s office as instructed. Ms Barden was already in Mr Rake’s office.

[96] Mr Rake asked Mr Morris about Mr Boyle’s statement on 2 November 2018. After some prompting by Mr Rake, Mr Morris recalled Mr Boyle’s statement, and he restated it for Mr Rake and said that everyone had laughed at the statement. Ms Barden interjected that she had not laughed at the statement, to which Mr Morris said he recalled she had laughed. Ms Barden reiterated that she had not laughed at the statement and said that Mr Morris had not laughed either.

[97] Mr Morris recalled that he said that BHP’s procedures dictated that Ms Barden should first talk to Mr Boyle about his statement, and that Mr Rake had ‘jumped the gun’ by asking Mr Morris about the matter. Ms Barden had started to say that she had intended to talk to Mr Boyle about the matter, but Mr Rake had talked over her and told her to stop. Mr Rake asked Mr Morris how he would feel if his daughter or wife had heard Mr Boyle’s statement, to which Mr Morris told Mr Rake not to “pull that shit with [him]”, and said that he had heard women at the Mine make far worse comments than Mr Boyle’s statement.

[98] Mr Rake asked him whether he would provide a statement regarding the events of 2 November 2018, to which Mr Morris initially refused. Mr Morris broke from the meeting and called Ms Lewiston to take advice about his circumstances, and after speaking with Ms Lewiston, he returned to the meeting and agreed to provide a statement.

[99] Ms Barden remained in the room while he wrote out his statement. Due to Ms Barden’s presence and her previous comments that no-one had laughed at Mr Boyle’s statement, Mr Morris felt uncomfortable about his recollection that everyone in the vehicle had laughed and he did not include that fact in his statement.

[100] Mr Morris met with Mr Rake again the next day and told him that he thought Ms Barden should not have been allowed to stay in the room while he gave his statement, and he wished to change his statement to include that everyone had laughed at Mr Boyle’s statement. Mr Morris recalled that Mr Rake acknowledged that he had “fucked up” by allowing Ms Barden to remain in the room, and he amended Mr Morris’ statement while Mr Morris remained in the room. Mr Morris did not sign the amended statement and Mr Morris was never provided with a copy of his amended statement. 33

[101] Mr Morris stated that on a date he could not recall, but after he had made his revised statement, he spoke with Ms Barden about the matter. Ms Barden said that she just wanted to talk to Mr Boyle about the matter and get an apology from him, and she had not wanted the matter to go any further, but it had been taken out of her hands after Ms Berrigan took the matter to Mr Craig. 34

[102] When asked during the hearing by Mr Anderson, Mr Morris denied that Mr Craig had called him or spoken to him about the 2 November 2018 incident at all. 35

Evidence of Ms Janet Barden

[103] Ms Janet Barden made a witness statement regarding this matter and appeared and gave evidence at the hearing of this matter. 36 At the time of her written statement, Ms Barden was employed by WorkPac as a ‘step-up’ Coal Mining Supervisor at the Mine. At hearing, Ms Barden was employed in the same role, but in a permanent capacity.

[104] Ms Barden started working at the Mine during May 2018. She was still becoming accustomed to her role during November 2018, and was not yet conducting pre-start or ‘toolbox’ meetings before shifts. 37

[105] On 2 November 2018 she was travelling in a light vehicle with Mr Boyle, Ms Ramirez and Mr Morris in the course of ‘hot-seating’; swapping out other operator employees from machinery so that those employees could take crib breaks.

[106] Ms Barden stated that the vehicle was parked, and the occupants were waiting for a break in production to complete the hot-seating. Ms Barden recalled during the hearing that she had exited the vehicle and Mr Morris had swapped into the driver’s seat, with Mr Boyle being in the passenger’s seat and Ms Ramirez in the rear seat. Ms Barden was leaning in through the car’s window while waiting for a break in production. She could not remember anyone smoking near the vehicle. 38

[107] Ms Barden recalled that the occupants of the vehicle were making small talk, including about their families. Ms Barden denied that anything sexual was being discussed including having sex or avoiding having sex with their partners. During the hearing, Ms Barden stated that she had not had a headache at the time and did not recall saying that she had a headache. 39 She denied that there had been any discussion about ‘who wears the pants’ in each of the occupants’ relationships.40

[108] Ms Barden stated that during the conversation Mr Boyle made a comment to the effect of, “When my girlfriend had a headache I crushed up Panadol and rubbed it on my dick and said here bitch do you want it orally or anally”. She said that Mr Boyle laughed after he made the comment. Ms Barden stated that she was shocked by Mr Boyle’s comment and considered it to be highly offensive, inappropriate and in no way acceptable. Ms Barden did not state that she laughed at Mr Boyle’s statement, but if she had laughed it was only because she was unsure of how to respond.

[109] Ms Ramirez also laughed in what Ms Barden thought was ‘a nervous manner’. Ms Barden stated that as at 2 November 2018 she did not know Mr Boyle well as she was relatively new to Mr Boyle’s D Crew. After Mr Boyle made the comment she told him that she thought the comment was gross. 41

[110] When put to her during the hearing, Ms Barden did not accept that Mr Boyle had been attempting to tell a joke, albeit an inappropriate one. She understood that Mr Boyle’s comment was not directed at any of the vehicle’s occupants as a proposition or similar, but still considered the comment to be ‘disgusting’. She did not recall laughing and did not recall that Mr Morris laughed either. 42 She stated that she had heard other employees swearing at the Mine but never any inappropriate jokes.43 The following exchange between Mr Anderson and Ms Barden illustrates Ms Barden’s views on Mr Boyle’s comment:44

[111] Ms Barden gave further evidence in response to my own questioning about how she was offended by Mr Boyle’s comment: 45

[112] Following on from the above exchange, Ms Barden agreed when put by Mr Anderson that more women were entering the mining industry, and Ms Barden as a supervisor had participated in high-level, managerial discussions about the importance of the Code to BHP’s workplace environment. Ms Barden stated that all workers at the Mine understood the importance of the Code. Ms Barden also noted that she herself has a personal ‘code of conduct’ for what is acceptable or unacceptable behaviour. 46

[113] Ms Barden stated that on 3 November 2018 she raised Mr Boyle’s comment with Mr Rake and Ms Berrigan, who both agreed with Ms Barden that Mr Boyle’s conduct was not acceptable. After speaking with them, she determined to make a complaint about Mr Boyle’s conduct, and Ms Berrigan asked her to complete an ‘event statement form’ setting out her complaint, which she did immediately and provided to Ms Berrigan. 47 During the hearing, Ms Barden recalled that Ms Berrigan was ‘sickened’ by Mr Boyle’s comment and encouraged Ms Barden to take the matter further. Ms Barden confirmed that she did not raise the matter with Workpac, her actual employer.48 When put to her by Mr Anderson, Ms Barden denied that she had only complained about Mr Boyle’s comment because of Ms Berrigan’s encouragement, and denied that otherwise she would have directly raised the matter with Mr Boyle herself.49

[114] During the hearing, Ms Barden stated that she had discussed the 2 November 2018 incident with Ms Ramirez after the incident to check whether she had also been upset by Mr Boyle’s comment. Ms Barden could not remember what day or time she had discussed the matter with Ms Ramirez, but recalled that Ms Ramirez had said Mr Boyle had made similar, inappropriate comments while on the bus into the site one morning. Ms Barden maintained that she had discussed the incident with Ms Ramirez after Mr Anderson noted to her Ms Ramirez’ evidence that she had not discussed the matter with Ms Barden. 50

[115] Ms Barden agreed during the hearing that she had had some interaction with Mr Boyle on each of 3 and 4 November 2018 in the course of their employment, and no further issues had arisen through those interactions. 51 Ms Barden stated that she learned that Mr Boyle had been stood down from his employment at the start of their next roster swing.

[116] Several days after making her complaint, and while she was not rostered to work she received a phone call from Mr Craig, who informed her that he would discuss her complaint with her when she was next on site. On a date that Ms Barden could not recall when she next returned to the Mine, she met with Mr Craig and Ms Berrigan in the ‘2 South’ area crib hut. She did not recall being asked any questions about the 2 November 2018 incident during that meeting. 52

[117] On 3 December 2018 Ms Barden received a phone call from Mr Craig who asked her several questions about the 2 November 2018 incident. During that conversation, she said to Mr Craig that at no time before Mr Boyle made the relevant statement had any of the vehicle’s occupants been discussing sex or ‘rooting’. At the hearing, Ms Barden recalled that she had called Mr Craig rather than him having called her as she had originally stated.

[118] When asked by Mr Anderson, Ms Barden agreed that she had discussed the 2 November 2018 incident with Mr Morris shortly after the incident, as described in Mr Morris’ evidence above at [101]. Ms Barden recalled that she had said to Mr Morris that she didn’t like to see anyone lose their job, but Mr Boyle’s comment was very inappropriate. Ms Barden recalled that she had said to Mr Morris that she wanted to catch up and chat with Mr Boyle about the matter and hopefully have him apologise for his comment.

[119] Answering further questions, Ms Barden recalled that she had told Mr Craig and Ms Berrigan that she would like to meet with Mr Boyle, but never had an opportunity to do so. When asked, Ms Barden could not say whether an apology from Mr Boyle would have been sufficient for her to deal with the matter. Ms Barden stated that she was never made aware by BHP that Mr Boyle had accepted that his comment was inappropriate or apologised for his comment and had offered to attend mediation with Ms Barden and Ms Ramirez, but she would have been open to participating in such a process. 53

[120] Ms Barden also recalled that she had been in the Mine’s supervisor’s office during a meeting between Mr Rake and Mr Morris at which Mr Morris had provided his recollection of the 2 November 2018 incident. Ms Barden was in the supervisor’s office at the time because she had been supporting Mr Rake as he was a new supervisor in the crew, and she had been following him around on the day in question. Mr Morris had said that she had laughed at Mr Boyle’s comment, and she denied laughing. Ms Barden could not recall whether she had stated that no-one laughed at Mr Boyle’s comment. 54

[121] During the hearing Mr Anderson asked Ms Barden whether she had been instructed at all about keeping the investigation into the 2 November 2018 incident confidential. Ms Barden could not recall being specifically instructed to keep the investigation confidential but agreed that it was ‘general practice that you don’t talk about confidential stuff like that’. 55

[122] Ms Barden stated that she would not be comfortable working with Mr Boyle if he was reinstated to his previous position of employment at the Mine. Ms Barden reiterated that Mr Boyle’s statement on 2 November 2018 had shocked her and she had not before heard any other person make statements of a similar nature at the Mine. Ms Barden agreed when asked by Mr Anderson at the hearing that she and Mr Boyle had worked on the same shift on each of 3 and 4 November 2018, in that they had been part of the same crew but had not personally worked together. Ms Barden agreed that the normal scenario for employees on the same crew was that they would work on the same shifts but not necessarily personally work together. 56 Ms Barden stated that she herself had been moved to a different crew.57

Seeing Mr Boyle at ‘Mitre 10’

[123] During the hearing Ms Barden agreed that she had seen Mr Boyle at the Moranbah ‘Mitre 10’ hardware store. She recalled that each of them had said a short hello and kept walking. Ms Barden stated that Mr Boyle was not aggressive towards her, and he had never done anything to indicate that he might threaten her. 58

Discussion with Ms Ramirez about Mr Boyle’s post-employment conduct

[124] During the hearing Ms Barden stated that a couple of weeks before the hearing of this matter she had a brief discussion with Ms Ramirez to check on how she was going. Ms Barden denied talking about these proceedings with Ms Ramirez. However, Ms Barden recalled that Ms Ramirez had told her that a few weeks before, Mr Boyle had driven past her and yelled abuse at her while she was out in Dysart. 59

Evidence of Ms Emma Ramirez

[125] Ms Emma Ramirez made a witness statement regarding this matter and appeared and gave evidence at the hearing. 60 Ms Ramirez is employed by WorkPac and is engaged by BHP to work at the Mine. Ms Ramirez has worked at the Mine since April 2017.

[126] At approximately 10:30am on 2 November 2018 she was travelling around the Mine in a light vehicle with Ms Barden, Mr Morris and Mr Boyle. Ms Ramirez recalled that the vehicle’s occupants had been discussing ‘families, farms and other non-sexual matters’. During the hearing, Ms Ramirez stated that she had heard Ms Barden say the word ‘headache’ but did not hear the context in which it was said. 61 Although she could not recall with precision the context of their conversation, Ms Ramirez denied that they had been discussing ‘rooting’, sex with partners or anything sexual at all. Ms Ramirez recalled that at the time of Mr Boyle’s comment, the vehicle had been stopped and Ms Barden was outside the vehicle and talking through the window.62

[127] Ms Ramirez stated that during the conversation, Mr Boyle said words to the effect of, “When my wife says she has a headache, I crush up a Panadol and put it on my dick and say you either take it orally or anally”. During the hearing, Ms Ramirez accepted that Mr Boyle may have used the words ‘old fella’ instead of ‘dick’. 63 Regardless of the precise words, Ms Ramirez stated that she was shocked by Mr Boyle’s statement. She was offended by the comment and it made her uncomfortable and unsafe around Mr Boyle.64

[128] Ms Ramirez recalled that she may have laughed in response to Mr Boyle’s comment, but would only have laughed because she was not sure how else to react. 65 Ms Ramirez stated that after Mr Boyle’s statement she got out the vehicle and went for a smoke, as she did not feel comfortable remaining in the vehicle. Ms Ramirez could not recall how long after Mr Boyle’s comment was made she had gone for a smoke, and accepted that Mr Boyle may have gone for a smoke with her and she may have asked to borrow Mr Boyle’s lighter or a cigarette.66

[129] Ms Ramirez denied during the hearing that she had spoken with Ms Barden about the 2 November 2018 incident in the days following the incident, and recalled that the only interactions she had with Ms Barden on 3 and 4 November 2018 were during pre-start meetings led by Ms Barden as step-up supervisor. 67

[130] About one week after 2 November 2018 she received a phone call from Mr Craig, who asked her whether she had heard Mr Boyle make any inappropriate comments during her latest roster period. She confirmed to Mr Craig that she had heard Mr Boyle’s statement on 2 November 2018. After being asked by Mr Craig, Ms Ramirez sent him an email setting out her recollection of the events of 2 November 2018.

[131] Ms Ramirez could not recall during the hearing whether she had interacted with Mr Boyle on or about 14 November 2018, and had joked with him about starting late as part of the ‘mummy crew’ as set out in Mr Boyle’s evidence at [34]. 68

[132] On 16 November 2018 Ms Ramirez sent an email to Mr Craig regarding her recollection of the 2 November 2018 incident. In that email, Ms Ramirez stated, “Also, earlier on that morning about 930 when the stagger crew was on the bus with Mr Kevin (Yappy), he was already making similar comments to us.” 69 During the hearing, Ms Ramirez could not recall what Mr Boyle had said on the bus earlier on 2 November 2018, but recalled that he had made a similar, but different joke.70

[133] During early December 2018 she met with Mr Craig and was interviewed in relation to the events of 2 November 2018. Mr Anderson put to Ms Ramirez several matters appearing in Mr Craig’s notes of their interview. Ms Ramirez agreed that she had told Mr Craig that everyone had laughed at Mr Boyle’s comment, but could not recall telling Mr Craig that she felt that the comment was normal for Mr Boyle or that it was the second time that she had heard Mr Boyle make the joke, as recorded by Mr Craig. 71

ATM incident

[134] During further questioning from Mr Anderson, Ms Ramirez stated that about one month before the hearing of this matter she reported an incident outside of work involving Mr Boyle to her manager, Mr Travis Perry. Ms Ramirez stated that the incident itself occurred months before the hearing, but she had only reported it during a meeting with Mr Perry regarding the hearing of this matter. Ms Ramirez stated that the incident itself had occurred at an ATM in Dysart at about 2:30pm. She and her seven-year-old son had been visiting the ATM, and Mr Boyle had approached them and started yelling at them from between three and five metres away. Ms Ramirez stated that she had left immediately after Mr Boyle started yelling. Ms Ramirez stated that she was concerned about the incident, but agreed she did not report it to anyone until her discussion with Mr Perry. Ms Ramirez stated that although she did not discuss the matter with Workpac, she was contacted by Workpac to discuss the matter after BHP informed Workpac of the ATM incident. 72

[135] During further discussion at the hearing, I became aware that this incident had been discussed in email correspondence between Ms Ramirez’ managers at both Workpac and BHP, and I ordered BHP to produce copies of those emails, which it did. The produced email chain relevantly stated, in email of 24 July 2019 from Ms Liz Rakitovsky of Workpac to Mr Scott Donaldson of BHP: 73

“…Ms Ramirez has raised some concerns, more particularly that she lives in Dysart where this individual also resides. She has advised us that she has seen the individual in the shopping centre and he has yelled at her and, in those circumstances she is understandably concerned for her safety and that of her child…”

[136] When asked by Mr Anderson during the hearing, Ms Ramirez could not recall being informed by BHP at any time that Mr Boyle had apologised for his comment on 2 November 2018. Ms Ramirez did recall that she had been asked whether she could work with Mr Boyle again after the incident and had said she could not, on the basis that Mr Boyle had breached the Code which all persons on the mine site are bound to follow. When asked during the hearing, Ms Ramirez could not say whether she could work with Mr Boyle again even noting that Mr Boyle had apologised for his comment. 74

Evidence of Mr Charlie Craig

[137] Mr Charlie Craig made a witness statement regarding this matter and appeared and gave evidence at the hearing. 75 Mr Craig currently holds the position of Superintendent Production Coal at the Mine. He commenced acting in that role during August 2018 and was appointed to that role on a permanent basis on 23 December 2018. Mr Craig has worked at the Mine for approximately 17 years. As Superintendent Production Coal, he is responsible for 270 employees with 10 supervisors reporting directly to him.

[138] On 2 November 2018, Ms Berrigan raised to him an incident involving Mr Boyle, where Mr Boyle had allegedly said in front of three of his co-workers words to the effect of, ‘when my wife has a headache I grind up some Panadol and put it on my cock and offer to administer it either anally or orally’.

[139] Several days later he separately called Ms Barden, Ms Ramirez and Mr Morris and asked them to provide to him their version of the events of 2 November 2018. He promised to meet with each of them when they were next on site. Mr Craig recalled that during his call to Ms Barden she said that she had been ‘horrified’ by Mr Boyle’s statement.

[140] Sometime during early November 2018 he mentioned the allegations against Mr Boyle to Mr Prytherch, who agreed with Mr Craig that a full investigation should be conducted by Mr Craig regarding the allegations.

[141] On 14 November 2018 he met Ms Barden and Ms Berrigan in the ‘2 South’ crib hut, and Ms Barden provided to him her version of the events of 2 November 2018. Later on 14 November 2018, Mr Craig met with Mr Boyle, Ms Lewiston, Ms Berrigan and Mr Rake and informed Mr Boyle that he was stood down from his employment on full pay pending an investigation into his alleged conduct on 2 November 2018.

[142] On 30 November 2018 Mr Craig met with Mr Boyle, Ms Lewiston and Mr Harper and presented Mr Boyle with the letter outlining the allegations against him, which is extracted in Mr Boyle’s evidence at [39]. Mr Craig recalled that during the meeting Mr Boyle maintained that his statement on 2 November 2018 had been funny, and that he had not acted offensively or inappropriately taking into account the context of the previous conversation.

[143] A copy of Mr Craig’s notes taken during the meeting was produced in the course of this matter. Mr Craig’s notes describe the following:

•  Mr Boyle maintained that he had said ‘old fella’ and not ‘cock’ and stated that the joke does not work if ‘cock’ is used;

•  Mr Boyle stated that all occupants of the vehicle were talking about ‘rooting’ and Ms Barden and Ms Ramirez had discussed getting out of sex with their partners by claiming to have a headache. Mr Boyle stated that such topics were normal to discuss while on the Mine site and Mr Boyle knew the vehicle’s occupants well enough to discuss those topics; 76

•  Mr Boyle stated that he is known as the ‘funny man’ and all of the vehicle’s occupants laughed at his statement. Mr Boyle explained how the joke should be told, stating “You first use a croaky voice and then say the last part as a doctor”, and then repeated the joke using the voices described;

•  Mr Boyle stated that he had read through and had been given a copy of the BHP’s Code of Business Conduct and he understood from that document that if Ms Barden had had an issue with his statement of 2 November 2018, then Ms Barden should have raised the issue with Mr Boyle first before making a complaint to Mr Craig.

[144] During the hearing, Mr Craig stated that after Mr Boyle repeated his joke in the meeting of 30 November 2018, he looked towards Mr Harper for ‘verification’ that the joke was funny. Mr Craig thought that Mr Boyle had repeated the joke to confirm the wording that he had used and to illustrate to Mr Craig and Mr Harper that the joke was funny. 77

[145] After learning of Mr Boyle’s assertions about the context of the discussion preceding his statement of 2 November 2018, he and Mr Rake conducted further meetings with Ms Barden, Ms Ramirez and Mr Morris to take their views on the context in which Mr Boyle’s statement had been made on 2 November 2018. Copies of Mr Craig’s and Mr Rake’s notes taken during those further meetings were produced in the course of this matter. Mr Craig’s and Mr Rake’s notes describe the following:

•  Ms Barden denied that the vehicle’s occupants had been discussing sex, ‘rooting’ or using headaches as an excuse to avoid sex. Ms Barden said that she had giggled at Mr Boyle’s comment but only out of shock, and had said in response words to the effect of ‘oh Yappy that’s gross’. Ms Barden stated that she had been shocked and horrified by Mr Boyle’s comment;

•  Ms Ramirez denied that the vehicle’s occupants had been discussing sex with their partners or ‘rooting’, and recalled that Ms Barden had been talking about her family and farming before Mr Boyle’s statement. Ms Ramirez said that while she is familiar with the word ‘rooting’ she does not know how to use it in conversation. Ms Ramirez recalled that Mr Boyle had made his statement after Ms Barden had said that she had a headache. Ms Ramirez recalled that they all laughed at Mr Boyle’s statement. Ms Ramirez stated that jokes of that nature were ‘how Yappy talks’ and it was the second time Ms Ramirez had heard Mr Boyle make the same joke. Ms Ramirez stated that she was genuinely concerned that Mr Boyle may give her and her family ‘a hard time’ outside of work as they lived in the same town;

•  Mr Morris could not remember the precise conversation preceding Mr Boyle’s comment but did recall that both Ms Barden and Ms Ramirez laughed at Mr Boyle’s statement.

[146] On 4 December 2018 he received Mr Boyle’s response to the allegations against him, which appears in Mr Boyle’s evidence at [46]. Mr Craig stated that at around that time he discussed with Mr Prytherch how the investigation should progress while Mr Craig took scheduled annual leave from mid-December 2018 to early-January 2019. Mr Craig’s view was that he should maintain carriage of the investigation and the investigation should be paused until he returned to work. On Mr Prytherch’s suggestion, Mr Craig obtained Mr Boyle’s consent to resume the investigation once Mr Craig returned from annual leave.

[147] On 16 January 2019 he completed a ‘Just Culture Decision Tree’ assessment on the information available to him as at that date. Mr Craig was unable to determine the precise words used by Mr Boyle on 2 November 2018, so he relied on Mr Boyle’s own recollection of the statement. Mr Craig provided a copy of the completed assessment to the BHP’s Employee Relations team. Mr Craig’s assessment included the following relevant matters:

•  Mr Craig concluded that Mr Boyle’s statement was offensive and was an intentional, deviant violation of the Code;

•  Mr Craig concluded that Mr Boyle did not agree that he had breached the Code;

•  Mr Craig noted that Mr Boyle thought that his statement had been a funny joke, and recorded, “During the investigation it has been found that this behaviour from Kevin is a common [occurrence] and believes that he is the funny man”;

•  Mr Craig concluded that Mr Boyle’s statement warranted ‘Step 4’ disciplinary action.

[148] On 5 February 2019 Mr Craig and Mr Field-Akred met with Mr Boyle and his support person, Mr Smyth, and presented Mr Boyle with the letter of 5 February 2019, which is set out above at [48].

[149] On 6 February 2019 Mr Craig received Mr Boyle’s response to the letter of 5 February 2019. Mr Craig stated that he considered it disingenuous that Mr Boyle took issue with the length of time that the investigation had taken, give that Mr Boyle had consented for the investigation to be paused until Mr Craig returned from annual leave, and because Mr Boyle had contributed to delays in the investigation in light of health and family-related matters. Mr Craig also stated that Mr Boyle had requested certain meetings to be rescheduled because he did not have the use of a car, and Mr Boyle had declined Mr Craig’s offers to pick him up and drive him to the relevant meetings.

[150] After receiving Mr Boyle’s response of 6 February 2019, Mr Craig considered the material that had been collected during the investigation. Mr Craig concluded that:

•  On 2 November 2018 and in the presence of Ms Barden, Ms Ramirez and Mr Morris Mr Boyle had said, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it either orally or anally”;

•  Mr Boyle had said that statement in response to Ms Barden mentioning to the vehicle’s occupants that she had a headache.

[151] Mr Craig stated that after making the findings set out above he met with Mr Prytherch to discuss the investigation and the findings he had reached. After discussing the matter, Mr Prytherch determined that Mr Boyle should be required to show cause as to why his employment should not be terminated.

[152] On 21 February 2019, Mr Craig and Mr Field-Akred met with Mr Boyle, Ms King and Mr Smyth (by telephone) and issued Mr Boyle with the Show Cause Letter, which is set out above at [54]. Mr Craig recalled that Mr Boyle maintained that he had not made his statement in response to Ms Barden saying that she had a headache, and if Ms Barden had said that she had a headache Mr Boyle would instead have said, “with a head like that it should ache’. In examination-in-chief, Mr Craig was certain this statement was made about Ms Barden, and not about any other person. 78

[153] Mr Craig stated that after meeting with Mr Boyle, he met with Mr Prytherch and informed him that during the meeting of 21 February 2019, Mr Boyle had disputed the context in which his statement of 2 November 2018 had been made and had taken issue with the three different versions of his statement that had circulated during the investigation.

[154] On 27 February 2019, Mr Craig received a copy of Mr Boyle’s response to the Show Cause Letter.

[155] On or about 5 March 2019 Mr Craig was informed by Mr Prytherch that Mr Prytherch had determined to terminate Mr Boyle’s employment. Later that day, Mr Craig met with Mr Boyle and presented him with the Termination Letter, which is set out above at [75].

[156] Mr Craig stated that on several occasions after Mr Boyle’s employment ended, Mr Boyle contacted him and requested to be provided with copies of his training records and qualifications. Mr Craig stated that he arranged for Mr Boyle to be provided with as much information as possible. Mr Craig recalled that during one phone call with Mr Boyle regarding those documents, Mr Boyle became frustrated and raised his voice at Mr Craig and said in an aggressive tone, “You fucking cunts won’t let me get a job anywhere”.

[157] In examination-in-chief, Mr Craig stated that he agreed with the Respondent’s decision to terminate Mr Boyle, although he was not happy about it. 79 He doesn’t wish to ‘sack’ any employees, but he understands that it is part of his job.

[158] Mr Craig agreed that there was a greater female presence at the Mine, most notably in the last two years. It was put to him in cross-examination that this had occurred while Mr Boyle was absent on extended, unpaid sick leave. Mr Craig suggested that the increased female presence in the workplace had been occurring for more than two years.

[159] In cross-examination, it was put to Mr Craig that when he completed the Just Culture Decision Tree on 16 January 2019, he did not have regard to Mr Boyle’s concessions contained within his letter of 4 December 2018. Mr Craig stated it was all taken into account, but he could not explain why he stated that Mr Boyle did not agree with the breach. Mr Craig held numerous discussions with Mr Prytherch, including taking into account Mr Boyle’s letter of 4 December 2018 and show cause response letter dated 27 February 2019. Mr Craig could not account for why the Just Culture Decision Tree did not include any of Mr Boyle’s concessions or apologies. 80

[160] Where Mr Craig referenced within the Just Culture Decision Tree that making jokes was a common occurrence for Mr Boyle, Mr Craig was referencing what had been said by Mr Boyle; that he was the funny man, and that he had repeated the joke on 30 November 2018 during the meeting.

[161] In answering questions from me, Mr Craig had not, in any other circumstances, invoked the unpaid suspension clause within the enterprise agreement prior to Mr Boyle’s dismissal. He stated it had later been used when there had been a safety near miss at the Mine. Employees who fail a drug and alcohol test on site are provided with a Step 2 warning and rehabilitated. 81

[162] Mr Craig conceded that he did not discuss with Mr Prytherch the obligations Mr Boyle had to repay approximately $91,000 to the Respondent. Mr Craig knew about the obligation, and had offered assistance to Mr Boyle, but did not discuss the obligation with Mr Prytherch. 82

Evidence of Mr Brad Prytherch

[163] Mr Brad Prytherch made a witness statement regarding this matter and appeared and gave evidence at the hearing. 83 Mr Prytherch has been employed by BHP since 2004 and since 2014 has held the role of Manager Production Coal at the Mine. At the time he gave his witness statement Mr Prytherch was on a 12-month secondment to the position of Head of Continuous Improvement (Coal).

[164] Mr Prytherch was first made aware of this matter by Mr Craig during early November 2018. Mr Prytherch instructed Mr Craig to conduct a thorough investigation of the matter.

[165] He next discussed the matter with Mr Craig during early December 2018. Mr Craig described the course of the investigation to Mr Prytherch and Mr Prytherch advised Mr Craig to obtain the views of Ms Barden, Ms Ramirez and Mr Morris regarding the context of the conversation preceding Mr Boyle’s statement. Mr Craig advised him that Mr Boyle had maintained that his statement of 2 November 2018 had been a funny joke and he had repeated his statement to Mr Craig in a ‘creepy voice’.

[166] Mr Prytherch stated that the investigation regarding Mr Boyle’s statement was paused while Mr Craig took a period of pre-arranged annual leave during December 2018 and January 2019 and with Mr Boyle’s consent.

[167] Mr Prytherch recalled that during mid-January 2019 he discussed the investigation with BHP’s Employee Relations Team and it was agreed that the different words attributed to Mr Boyle by each of Ms Barden, Ms Ramirez and Mr Morris should be put expressly to Mr Boyle for his response, which was done through the letter of 5 February 2019.

[168] During early-February 2019 he reviewed Mr Craig’s findings following the investigation, and discussed those findings with Mr Craig. Mr Prytherch accepted Mr Craig’s findings, which are set out above at [150].

[169] On 18 February 2019, Mr Prytherch amended the Just Culture Decision Tree document completed by Mr Craig on 16 January 2019 and commented, “From the evidence gathered as part of the investigation I support this finding. Kevin completed training in ‘our code of conduct’ on 16/09/2018 and would have been fully aware that this type of behaviour was not acceptable. He also noted that he had a copy of the code of conduct. The meeting held on 30-11-2018 also highlighted Kevin’s lack of remorse, further highlighting the deviant nature of his behaviour”.

[170] Mr Prytherch instructed Mr Craig to issue the Show Cause Letter to Mr Boyle. Mr Prytherch recalled that he met with Mr Craig shortly after the Show Cause Letter was issued and spoke to Mr Craig about his discussion with Mr Boyle on 21 February 2019. Mr Prytherch formed the view that Mr Boyle had not raised during that meeting any matter that would have any great bearing on Mr Prytherch’s decision regarding Mr Boyle’s possible dismissal.

[171] After receiving Mr Boyle’s response to the Show Cause Letter 27 February 2019, Mr Prytherch considered all relevant information collected through the investigation and concluded that Mr Boyle’s conduct on 2 November 2018 had constituted a serious breach of BHP’s Charter Values and the Code. Particularly, Mr Prytherch concluded that Mr Boyle had breached:

•  The Charter Value of ‘Respect’, which requires ‘embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial’;

•  The Charter Value of ‘Integrity’, which requires ‘doing what is right and doing what we say we will do’;

•  The Code’s ‘Workplace Equality and Inclusion’ chapter, which requires employees to:

i. Always demonstrate fairness, trust and respect in all your working relationships;

ii. Never behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others;

iii. Never engage in physically or socially intimidating behaviours.

[172] Although Mr Prytherch concluded Mr Boyle’s conduct had been inappropriate based on Mr Craig’s findings that Mr Boyle has made his statement in response to Ms Barden mentioning that she had a headache, Mr Prytherch stated that he would have considered Mr Boyle’s conduct inappropriate regardless of the context of the existing discussion, and including the context asserted by Mr Boyle.

[173] Mr Prytherch stated that as a result of the above conclusions he determined that the only appropriate disciplinary response was to terminate Mr Boyle’s employment with BHP. Mr Prytherch stated that he had lost trust and confidence in Mr Boyle’s ability to uphold his behavioural obligations and not to conduct himself in an offensive, harassing or disrespectful manner. Mr Prytherch considered that Mr Boyle’s continued employment with BHP would present an unacceptable risk to the health and wellbeing of Ms Barden, Ms Ramirez, Mr Morris and other BHP employees that had become aware of his actions of 2 November 2018.

[174] As discussed above at [18], Mr Prytherch gave evidence that he did not consider the Fair Play Guidelines to be a mandatory obligation, and they were simply best practice and good practice. He has not had any training in applying the Fair Play Guidelines. 84

[175] In cross-examination, Mr Prytherch agreed that in coming to the decision to terminate Mr Boyle, he had relied on others for information relevant to the investigation, except for Mr Boyle’s training records, which he requested himself. 85

[176] Mr Prytherch was asked how much weight he gave to Mr Craig’s completed Just Culture Decision Tree, to which he answered that he used it in his decision making to validate what he had read in all of the other statements to make sure it was true and correct, and there was factual evidence to support it. 86

[177] Mr Prytherch took into account that the meeting of 30 November 2018 was 28 days after the event of 2 November 2018. He considered that Mr Boyle should have shown remorse at the meeting of 30 November 2018. The following exchange occurred: 87

[178] When pressed by Mr Anderson as to why Mr Boyle’s apologies and remorse over the incident was not taken into consideration by Mr Prytherch, he answered that in his discussions with Mr Craig, they considered that Mr Boyle did not have remorse, and they doubted the genuineness of his apologies. 88 They both held concerns that Mr Boyle would be involved in a future incident.

[179] In completion of the Just Culture Decision Tree, Mr Prytherch did not hold any concerns that he and Mr Craig hadn’t included references to Mr Boyle’s remorse. He considered that writing that Mr Boyle was remorseful would not have changed the outcome; it still would have been an intentional act. 89

[180] Mr Prytherch’s evidence is clear that even if Mr Boyle had stated the joke on 2 November 2018 in the context of his female passengers discussing sex or ‘rooting’, he would still have dismissed Mr Boyle. 90 The following was put and answered:

[181] In cross-examination, Mr Prytherch stated that he considered the breaches for which Mr Boyle was issued the show cause letter, and ultimately terminated, were the two bullet points under the heading ‘Findings’. That is, the sentence Mr Boyle stated, and that the comment was made in response to Ms Barden after she mentioned to the group that she had a headache. Mr Anderson put to Mr Prytherch that the findings also included the conduct of Mr Boyle in the meeting of 30 November 2018, to which Mr Prytherch stated: 91

“So I believe that those two dot points are the findings.  If you refer to the second paragraph it says, 'This is also noted.'  They don't appear as findings to myself.  There was two findings.”

[182] Mr Prytherch was unable to provide an answer as to whether he considered the conduct of 30 November 2018 to constitute a reason for the issuing of the Show Cause Letter. He agreed the letter had been drafted by HR, and he had reviewed it before it was issued. In answering questions from me, he agreed that Mr Boyle’s conduct of 30 November 2018 formed part of the reasons for the dismissal. 92

[183] Relevant to whether he could have had Mr Boyle work in other areas of the Mine from the three employees in the vehicle, or have had Mr Boyle work different shifts to them, Mr Prytherch considered this to be impossible to enforce. He stated that he had tried it with employees when involved in domestic violent issues, and there was always the risk of the employees crossing paths. 93

[184] He did not consider whether to place Mr Boyle at another mine covered by the enterprise agreement. He did not have faith that Mr Boyle was not reoffend.

[185] Mr Prytherch stated that he was aware that Mr Boyle owed to the Respondent a large sum of money, but he said that he did not take that into consideration when he made the decision to terminate him.

[186] In cross-examination, Mr Prytherch stated that he didn’t think of the legality of Ms Barden or Ms Ramirez potentially suing the Respondent on account of Mr Boyle’s conduct. He stated that he is responsible for the health and safety of everybody, and he wanted to ensure there was a safe workplace without offensive behaviour in it. He did not think it appropriate for Mr Boyle to return.

[187] Mr Prytherch stated that he did not take into account, in his decision to terminate Mr Boyle, the comment made on 21 February 2019 being, “with a head like that it should ache”. 94

Evidence of Mr Kyle Harper

[188] Mr Kyle Harper made a witness statement regarding this matter and appeared and gave evidence at the hearing. 95 Mr Harper has been employed by BHP for approximately 12 years. He is currently a Mining Supervisor at the Mine and has held that position since 2010. Mr Harper stated that in his role he is often involved in investigative and disciplinary proceedings, including attending investigative meetings.

[189] During late November 2018 he was asked by Mr Craig to attend and to take notes at an investigation meeting in respect of Mr Boyle, and to act as Mr Craig’s support person. Mr Harper did not know any specifics of the allegations against Mr Boyle prior to the meeting. 96 On 30 November 2018 he attended that investigation meeting which took place at the CFMMEU’s offices in Dysart, Qld. Mr Harper recalled that the attendees of the meeting were Mr Craig, Mr Boyle and Ms Lewiston. Mr Harper took hand-written notes during the meeting and on 1 December 2018 produced a typed-up copy of his notes and provided them to Mr Craig. Mr Harper’s typed-up notes stated:

“•  Charlie started the conversation with letting Kevin no what the allegations are against him

•  Kevin had a bit of a chuckle when Charlie read out the allegations

•  Kevin did not deny that he had said what he had said but he denied using the word cock and said that he said old fella

•  Charlie asked Kevin if this was his usual type of conversation and Kevin said yes it is we are on a mine site

•  Charlie asked Kevin if his conversation was inappropriate and Kevin believed that it was not

•  Kevin thought what he said was funny as he is the funny guy and everyone knows this

•  Kevin explained that when he made the comment there was only Emma and Janet in the car as Darrel was hot seating

•  Kevin said he is guilty of what he said but still believed it was only a joke

•  Kevin believes that they should not of taken offence to it as it was funny

•  Kevin said he knows the code of conduct as he has a copy at home and believes his comments are not a breach

•  Kevin feels that BMA are victimizing him

•  During the conversation Charlie kept asking Kevin if he was ok

•  Charlie also advised Kevin that he at EAP available and that he could contact myself or Charlie during the weekend if he had any issues

•  Kevin still believed he had done nothing wrong

•  Kevin went on to tell us the joke several times in a creepy voice which made me feel uneasy

I believe that Kevin is not remorseful for what he said and I feel that Kevin will continue to have this kind of behavior and conversation [sic]”

[190] During the hearing, Mr Harper described the voice that Mr Boyle had used to re-tell his joke as ‘croaky’ and not his normal voice, and it seemed to Mr Harper that Mr Boyle was re-telling a joke that he thought was funny. 97 He stated that Mr Boyle’s comment of 2 November 2018 made him uneasy and did not sit well with him, and neither did Mr Boyle’s repetition of it during the meeting of 30 November 2018.98 Answering further questions, Mr Harper agreed that Mr Boyle had tried during the meeting to get his point across that he had intended to tell a joke by his comment of 2 November 2018.99

[191] Mr Anderson put to Mr Harper at the hearing that Mr Boyle had not used a creepy or croaky voice at all during the meeting and describing his comments in those ways were an attempt to make Mr Boyle look bad. Mr Anderson put to Mr Harper that he had not been offended by Mr Boyle’s comment and had only recorded in his typed notes that he felt uneasy and thought Mr Boyle was not remorseful because he had been instructed by Mr Craig to record those matters to facilitate Mr Boyle’s eventual dismissal. Mr Harper maintained that Mr Boyle had not used his normal voice when re-telling the joke during the meeting and he had been offended by the joke and maintained that his notes of the meeting reflected his own, honest thoughts. 100

[192] During the hearing, Mr Harper stated that he had not ever heard a joke or comment of a similarly offensive nature as Mr Boyle’s comment in the 12 years he had worked at the Mine, although he had not ever been involved in other disciplinary processes involving allegations of inappropriate language. 101 Mr Harper stated that he ‘pulls people up’ for swearing at work and has a discussion with an employee that has sworn at work.102

[193] Mr Harper acknowledged that he did not know all of the background information regarding the matter at the time of the meeting. However, Mr Harper recalled that during the meeting Mr Boyle was adamant that his statement on 2 November 2018 had been a joke, that his joke was funny and that no-one had been offended by his joke. Mr Harper recalled that Mr Boyle maintained that his conduct had not breached BHP’s Charter Values or the Code and that he had not done anything wrong. Mr Harper stated that it was apparent to him that Mr Boyle did not think his statement on 2 November 2018 had been inappropriate and was not remorseful about his statement. Mr Harper agreed when put to him by Mr Anderson that he had not been asked to include his opinion on Mr Boyle’s remorsefulness or reaction to the allegations against him. 103

[194] In re-examination, Mr Harper stated that his original hand-written notes would not materially differ from his typed notes. I directed BHP and Mr Harper to find Mr Harper’s original hand-written notes taken during the meeting of 30 November 2018 and produce those notes to my chambers. On the second day of hearing, the Respondent informed me that Mr Harper had been unable to find the notes at his home and would look for them at his on-site accommodation when he was next on-site. After returning to his on-site accommodation, Mr Harper could not locate a copy of his notes there either, and the Respondent was unable to produce a copy of Mr Harper’s hand-written notes.

Evidence of Mr Douglas Field-Akred

[195] Mr Douglas Field-Akred made a witness statement regarding this matter and appeared and gave evidence at the hearing. 104 Mr Field-Akred is employed by BHP as Specialist Improvement, Production Coal A & I at the Mine.

[196] On 5 February 2019 he attended a meeting regarding the investigation into Mr Boyle’s conduct of 2 November 2018 for the purpose of taking notes during the meeting, after being asked to do so by Mr Craig. During the hearing, Mr Field-Akred stated that he had been made aware of an outline of the allegations against Mr Boyle prior to the meeting, but did not know the precise language that had been used by Mr Boyle on 2 November 2018. 105

[197] Mr Field-Akred stated that Mr Boyle, Mr Craig and Mr Smyth were also present for that meeting. A copy of Mr Field-Akred’s shorthand, handwritten notes taken during the meeting was produced to the Commission during the course of this matter, and Mr Field-Akred read out those notes aloud during the hearing.

[198] On 21 February 2019 he attended a second meeting regarding the investigation into Mr Boyle’s conduct for the purpose of taking notes. Mr Field-Akred stated that Mr Boyle, Mr Craig and Ms King were present for that meeting, and Mr Smyth participated in the meeting by phone. A copy of Mr Field-Akred’s shorthand, handwritten notes taken during the meeting was produced to the Commission during the course of this matter and Mr Field-Akred read out those notes aloud during the hearing. It is not necessary to reproduce those notes in full, other than to note that Mr Field-Akred said his notes read:

[199] In examination-in-chief, Mr McLean put to Mr Field-Akred the following:

[200] Mr Field-Akred recalled that during the meeting of 21 February 2019 Mr Boyle denied that Ms Barden had said on 2 November 2018 that she had a headache. Mr Boyle said that his normal response to someone saying that they had a headache would be to say, “with a head like that it should ache”, which was reflected in Mr Field-Akred’s notes. 106

[201] When asked by Mr Anderson during the hearing, Mr Field-Akred stated that he has heard Mr Harper swear in the workplace before and disagreed with Mr Harper’s evidence that he does not swear in the workplace. Mr Field-Akred stated that at worst he has heard the word ‘fuck’ used at the Mine. 107

Submissions of the Applicant

[202] Mr Boyle submitted that he was unfairly dismissed from his employment because there was no valid reason for his dismissal and his dismissal was harsh, unjust or unreasonable. There being no jurisdictional issues arising in this matter, the submissions addressing each of the criteria set out in s.387 of the Act, are as follows.

s.387(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)

[203] Mr Boyle submitted that for a reason for dismissal to be valid, it must be ‘sound, defensible or well founded’ and cannot be capricious, fanciful, spiteful or prejudiced. 108 Further, Mr Boyle submitted that the Commission must undertake an objective analysis of the facts of the particular case in deciding whether there was a valid reason for the employee’s dismissal.109

[204] Mr Boyle submitted that in cases involving misconduct as a reason for dismissal, the employer bears the onus of proof to establish that the alleged misconduct took place on the balance of probabilities. Mr Boyle also submitted that the employer must meet an evidential burden to prove that alleged misconduct occurred and where allegations of serious misconduct are made, such as in this case, the evidence relied upon must be strong. Mr Boyle submitted the Commission must determine for itself on the evidence before it whether the alleged misconduct occurred. Mr Boyle submitted that the relevant test is not whether the employer believed, on reasonable grounds and following sufficient inquiry, that the alleged misconduct occurred, but rather an objective determination of whether the misconduct occurred. 110

[205] Mr Boyle accepted that his comment of 2 November 2018 was inappropriate but submitted that the inappropriateness of his intended joke does not automatically give rise to a valid reason for his dismissal. Mr Boyle submitted that the reason for his dismissal was not sound, defensible or well founded and was capricious and prejudiced on the following grounds which he addressed in turn:

•  The gravity of Mr Boyle’s conduct was so out of proportion with the decision to terminate his employment so as to be capricious, spiteful, and prejudiced;

•  The stand down, prolonged investigation, and mischaracterisation of Mr Boyle’s explanations for his conduct were prejudicial;

•  Mr Boyle’s responses to the allegations against him were reasonable and termination was so grossly excessive as to be capricious and prejudiced;

•  BHP treated Mr Boyle with extreme prejudice in making assumptions about Mr Boyle’s conduct, motives and contrition.

The gravity of Mr Boyle’s conduct was so out of proportion with the decision to terminate his employment so as to be capricious, spiteful, and prejudiced

[206] Mr Boyle submitted that the extent of his misconduct was that he told one inappropriate joke on a single occasion. None of the vehicle’s occupants objected at the time or showed signs of offence, and Mr Boyle continued to work for the rest of his shift on 2 November 2018 and for his next two shifts with no mention of his conduct. Mr Boyle submitted that his misconduct did not meet the definition of ‘serious misconduct’ set out in regulation 1.07 of the Fair Work Regulations 2009, was not repeated, and was not serious enough to warrant his dismissal.

[207] Mr Boyle submitted that when he was eventually presented with the allegations against him, he explained that he had not at the time of his comment understood that it was against BHP’s workplace policies and the Code, but acknowledged that his comment had been inappropriate, apologised for his conduct, and committed to ensure that he would not engaged in similar conduct again.

[208] Considering that his comment had been made without malice and was not directed at any of the vehicle’s occupants, Mr Boyle submitted that the disciplinary outcome of dismissal was so disproportionate to his conduct as to be capricious and spiteful. Further, Mr Boyle submitted that the decision to dismiss him was prejudicial as:

•  BHP failed to believe that Mr Boyle' was truly contrite and apologetic about his conduct and determined that his explanations for his conduct were untruthful without making appropriate enquiries; and

•  BHP’s investigation and eventual decision to dismiss Mr Boyle proceeded under the assumption that Mr Boyle would repeat his conduct despite his assertions otherwise, and that Mr Boyle committed further misconduct by repeating his comment during the meeting of 30 November 2018.

[209] Mr Boyle submitted that the investigation into his misconduct was ‘inappropriately infected’ by Mr Craig’s control of the investigation and Mr Prytherch’s erroneous findings which were not based on reasonably ascertainable facts. Mr Boyle submitted by way of example that Mr Craig had ‘blindly’ determined to compound the allegations of misconduct against Mr Boyle by including his repetition of the comment during the meeting of 30 November 2018.

[210] Mr Boyle submitted that Mr Craig and Mr Prytherch considered that the allegation against Mr Boyle arising from 2 November 2018 was not itself enough to warrant his dismissal, and the additional allegations with respect to his repetition of his comment during the meeting of 30 November 2018 were added with the intent of bringing about their desired result; Mr Boyle’s dismissal. Mr Boyle submitted that these actions were wholly unreasonable and his attempts to point out these actions during the investigation, such as in his response letter of 27 February 2019, were disregarded.

The stand down, prolonged investigation, and mischaracterisation of Mr Boyle’s explanations for his conduct were prejudicial

[211] Mr Boyle was stood down from his employment on 14 November 2018 and did not return to work before his dismissal on 5 March 2019. He submitted that he had always participated honestly in the investigation and had provided appropriate and accurate responses to all matters put to him. He had apologised for his conduct, committed to ensuring that he would not repeat such conduct, and had offered to attend mediation to address the concerns of the persons affected by his conduct.

[212] Mr Boyle submitted that the conduct of the investigation was wholly inadequate and was inappropriately delayed resulting in significant prejudice to him, for the following reasons:

•  BHP did not interview the relevant witness in sufficient detail and did not seek to determine what had actually occurred on 2 November 2018. Notably, BHP failed to determine who had been seated where within the vehicle and found that Mr Boyle’s comment had been made in response to Ms Barden saying that she herself said that she had a headache without directly questioning Ms Barden about that matter;

•  BHP failed to obtain statements from the relevant witnesses in a timely manner, and particularly Mr Boyle’s statement;

•  The just culture process was completed at an inappropriate time, was completed by Mr Craig when it should have been completed by Mr Prytherch, and was completed in Mr Boyle’s absence;

•  BHP completely failed to consider alternative disciplinary outcomes to Mr Boyle’s dismissal at the appropriate time;

•  BHP failed to put to Mr Boyle several matters which formed part of the decision to dismiss him, including BHP’s purported health and safety concerns and BHP’s view that Mr Boyle’s responses to the allegations against and his apologies had been disingenuous;

•  BHP disregarded positive aspects of Mr Boyle’s employment history, as shown by BHP’s human resources department providing Mr Prytherch only with material which would favour Mr Boyle’s dismissal and Mr Prytherch’s failure to review Mr Boyle’s complete file or give regard to his positive performance reviews;

•  Mr Morris’ revised statement given during the investigation was not provided to Mr Craig or Mr Prytherch.

[213] He submitted that BHP did not make timely enquires of relevant witnesses and the enquiries that were made were insufficient, amounting to little more than asking the witnesses for statements and making a few short telephone calls. Mr Boyle pointed out that while BHP treated the matter very seriously, no significant report of the investigation was produced. 111

[214] Mr Boyle submitted that rather than conducting the investigation reasonably, BHP made assumptions about Mr Boyle’s motives with respect to his conduct of 2 November 2018, ignored his apologetic responses to the original allegation against him, and unfairly compounded the allegations against him by adding allegations in respect of the meeting of 30 November 2018, which Mr Boyle submitted was prejudicial against him.

[215] Mr Boyle submitted that BHP treated the completed ‘just culture’ process as the findings of the investigation into his conduct, although BHP did not provide him with a copy of that document. Further, Mr Boyle submitted that the just culture process should have been completed, and BHP’s attempts to frame the just culture process as a discretionary step of little relevance was an attempt to ‘muddle the issues’ in this matter.

[216] Mr Boyle submitted that had Mr Craig and Mr Prytherch involved him in the just culture process, he could have rectified much of the erroneous information within the document. Instead, the just culture process document contained incorrect information, left out critical information, was amended with further incorrect information by Mr Prytherch, was completed before the Show Cause Letter was issued and without regard to Mr Boyle’s show cause response, was not completed in the presence of Mr Boyle and was not provided to him at all prior to his dismissal.

[217] Mr Boyle submitted that the just culture process document as it was completed evidences that BHP erroneously concluded that Mr Boyle’s repetition of his comment on 30 November 2018 amounted to misconduct. Mr Boyle noted that the document does not contain his actual responses to the allegations against him or reference his apologies and commitments not to engage in similar behaviour. Mr Boyle submitted that the errors in the just culture process were highly prejudicial against him and that BHP relied on those prejudicial errors in deciding to dismiss him, and therefore there was no valid reason for his dismissal.

[218] Mr Boyle also submitted that the just culture process document’s characterisation of his conduct as ‘deviant’ should be rejected. Mr Boyle submitted that the mere fact that his conduct was classed as a ‘deviant’ breach did not mean that he must have been dismissed from his employment. Mr Boyle noted BHP’s own argument that the just culture process amounts to non-binding guidance for decision-makers and submitted that in that case BHP retained a discretion to take any form of disciplinary action against Mr Boyle, not just dismissal. Mr Boyle submitted that in the circumstances BHP should have treated his conduct as an unintentional breach of the Code where Mr Boyle did not know that his conduct was unacceptable, taking into account perhaps that Mr Boyle should have known better.

[219] Mr Boyle submitted that the manner of the investigation into his conduct revealed that BHP had determined that he should be dismissed regardless of anything that Mr Boyle could have said or done, and BHP gave credence only to material which would support its pre-determined decision to dismiss him. Mr Boyle also submitted that the ultimate decision to dismiss him was made by BHP’s human resources department as much as it was made by Mr Prytherch, and no-one from BHP’s human resources department involved in the investigation of Mr Boyle’s conduct gave evidence in respect of this matter.

Mr Boyle’s responses to the allegations against him were reasonable and termination was so grossly excessive as to be capricious and prejudiced; and BHP treated Mr Boyle with extreme prejudice in making assumptions about Mr Boyle’s conduct, motives and contrition.

[220] Mr Boyle submitted that he responded appropriately to the allegations put to him by apologising for his behaviour in his response of 4 December 2018. Mr Boyle submitted that while he may have ‘carried on a bit’ during the meeting of 30 November 2018, his responses during that meeting were appropriate given the short time frame between being presented with the formal allegations against him at the start of the 30 November 2018 meeting and responding to those allegations within the same meeting.

[221] Mr Boyle submitted that the fact he changed his position regarding his conduct of 2 November 2018 and acknowledged that his conduct had been inappropriate should reflect positively upon him, not negatively as BHP had treated it, and the suggestion that he had only apologised to avoid dismissal was unsustainable and self-serving. Mr Boyle submitted that expressing remorse for his actions is the exact response that BHP should have wanted Mr Boyle to arrive at. Instead, BHP drew an inappropriate conclusion that Mr Boyle’s apology was facetious and produced an additional, unjustifiable allegation that Mr Boyle had acted inappropriately during the meeting of 30 November 2018.

[222] Mr Boyle submitted that his conduct during the meeting of 30 November 2018 was not misconduct and was not a valid reason for dismissal. He submitted that whether or not he used a ‘creepy’ or ‘croaky’ voice while repeating his comment is irrelevant, as is whether he sought some justification from the meeting’s attendees; Mr Boyle was entitled to repeat his comment for the purpose of establishing the precise words he used on 2 November 2018 cannot be considered misconduct. Mr Boyle submitted that I should give no weight to any suggestion that the meeting’s other attendees were offended by Mr Boyle’s repeated comment having regard to the meeting’s context.

[223] Mr Boyle again noted that the just culture process document, including Mr Prytherch’s amendments, was completed before BHP issued the Show Cause Letter. Mr Boyle had not been included in the completion of the just culture process document or provided with a copy of the document, despite asking for an opportunity to review and respond to it in his response of 27 February 2019, and was therefore unaware that BHP had concluded that his conduct on 2 November 2018 was a ‘deviant’ breach of the Code. Mr Boyle submitted that it is irrelevant whether the just culture process was mandatory for BHP to complete or follow, the process was undertaking in this matter and BHP failed to include Mr Boyle in that process or provide him with a copy of the completed just culture process document, even where had specifically requested a copy.

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

[224] Mr Boyle accepted that some of the reasons for his dismissal were set out in the Termination Letter. However, Mr Boyle submitted that BHP failed to inform him of all of the reasons for his dismissal, which included the following additional matters he was not informed of:

•  That Mr Boyle had lied or had been disingenuous in his responses to the allegations;

•  That Mr Boyle’s alleged disingenuousness gave rise to a health and safety risk which could only be addressed by dismissing Mr Boyle;

•  That Mr Boyle had engaged in similar misconduct on other, unidentified occasions, which was raised in the just culture process document;

•  That Mr Boyle expressed remorse for his conduct and understanding of how his conduct had been inappropriate only to avoid dismissal;

•  That BHP might be exposed to legal proceedings if it did not dismiss Mr Boyle, which appears to have been raised as an issue by BHP’s human resources department; and

•  That Mr Boyle’s conduct amounted to ‘sexual harassment’.

[225] Mr Boyle submitted that BHP’s purported health and safety concerns and its concern regarding potential liability for claims of discrimination or sexual harassment arising from Mr Boyle’s conduct were not put to him at all, and the full reasons for his dismissal, including the matters set out in the just culture process document were not put to him in clear and unequivocal terms. 112

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

[226] Mr Boyle agreed that he was given an opportunity to respond to the matters set out in the Show Cause Letter and he did so. However, Mr Boyle submitted that he was not provided a meaningful opportunity to respond to several of the reasons for his termination, including that Mr Prytherch held the view that Mr Boyle was insincere in his responses to the allegations against him, that Mr Boyle knew for a fact on 2 November 2018 that his comment would breach BHP’s workplace policies, and that Mr Boyle’s conduct presented an ongoing risk to health safety at the Mine.

[227] Mr Boyle submitted that as a result of being prevented from responding to those matters, he was prevented from responding to Mr Prytherch’s concerns that he was being untruthful. He was also prevented from reassuring BHP and the other witnesses to his conduct that his conduct would not be repeated and from addressing BHP’s concerns about possible liability for discrimination or sexual harassment.

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

[228] Mr Boyle submitted that there was no unreasonable refusal to allow him to have a support person at any of the meetings relating to his dismissal held in the course of this matter.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[229] Mr Boyle noted that he was dismissed for misconduct, not unsatisfactory work performance. Mr Boyle submitted that he had no history of unsatisfactory work performance and BHP had not provided any reliable evidence that his work performance had ever been unsatisfactory.

s.387(f) - Whether BHP’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[230] Mr Boyle submitted that BHP is a large organisation with dedicated human resources staff, and in light of that I should take a ‘dim view’ of the investigation into his conduct and the processes followed leading up to his dismissal. Mr Boyle noted his earlier submissions about the inadequacies of the investigation and BHP’s failure to provide him with an opportunity to respond to all of the reasons for his dismissal.

[231] Mr Boyle submitted that BHP did not use its extensive human resources expertise to ensure that the investigative and disciplinary process were completed correctly, but rather to assist Mr Prytherch’s pre-determination that Mr Boyle should be dismissed. He submitted that BHP’s human resources department supported Mr Prytherch’s pre-determination by providing a file containing only negative matters related to Mr Boyle and seemingly provided no guidance on how the just culture process should be undertaken or how the just culture process document should be corrected by Mr Prytherch.

[232] Mr Boyle submitted that BHP’s failure to consider alternative disciplinary outcomes to dismissal and failure to consider his positive employment record should weigh against BHP and was more inexcusable given BHP’s extensive resources.

s.387(h) - Other matters

[233] Mr Boyle repeated his submissions that he had sincerely expressed remorse for his conduct and had been prepared to apologise for his conduct to the occupants of the vehicle on 2 November 2018 in a mediation process, which was denied by BHP. Mr Boyle repeated that Mr Prytherch failed to have proper regard to Mr Boyle’s length of service and positive performance record and only considered matters which favoured his dismissal.

[234] Further, Mr Boyle submitted that I should consider the following matters in my decision:

•  Mr Boyle’s previous serious health concerns;

•  The absence of any previous relevant warnings;

•  That Mr Boyle had intended to work for BHP for the foreseeable future;

•  Mr Boyle’s significant financial commitments to BHP, including an alleged overpayment to Mr Boyle;

•  Mr Boyle’s connection to his work and his community.

[235] Mr Boyle submitted that his dismissal was harsh as it was disproportionate to the alleged misconduct, it had significant impact on him and his personal relationships, and in light of his service to BHP and the detrimental impact his dismissal had on his finances, noting particularly BHP’s alleged overpayments to Mr Boyle.

Oral closing submissions

[236] It was submitted during oral closing submissions that whilst the Fair Play Guidelines are not referenced within the enterprise agreement applying at the Mine, they were a policy accepted by the Respondent applying to employees covered by the enterprise agreement; a mandatory document to be followed. Mr Boyle was critical of Mr Prytherch’s evidence that the document and process involved is something that should be followed as best practice.

[237] It was submitted that the Just Culture Decision Tree requires discussion with the relevant employee, which did not occur between Mr Prytherch and Mr Boyle.

[238] I asked Mr Anderson to address the Commission on the evidence given by Mr Boyle during the hearing, relevant to the context of the discussion before his statement on 2 November 2018. The following was discussed:

Authorities cited

[239] Mr Boyle submitted the Commission should have regard to my own decision in Macklin v BHP Coal Pty Ltd 113 where I reinstated Mr Macklin. In that matter, I was critical of the same respondent in this matter relevant to the Fair Play Guidelines and the Just Culture Decision Tree. I was, in that matter, critical of the Respondent for failing to inform Mr Macklin of the outcome or finding that the Respondent considered his behaviour to be deviant.

[240] Mr Boyle submitted, with reference to the decision of New South Wales Attorney-General’s Department v Miller 114, that that the Commission should not and does not need to determine that the matter was, or the actions of 2 November 2018, constituted sexual harassment as that finding is more appropriately made under the relevant Act by the relevant authoritative body.

Remedy

[241] Mr Boyle seeks to be reinstated to his former position of employment and to maintain continuity of his employment upon his reinstatement. Mr Boyle also seeks an order for compensation in respect of wages as a result of his dismissal. Mr Boyle seeks in the alternative that if I find that he was unfairly dismissed, but do not order that he be reinstated, that I make an order for compensation in respect of lost wages as a result of his dismissal.

[242] Regarding reinstatement, Mr Boyle submitted that reinstatement remains the primary remedy for unfair dismissal under the Act, and submitted that reinstatement was not inappropriate to order in this matter. Mr Boyle submitted that the relationship of trust and confidence between him and BHP had not been destroyed, as BHP was a large enough organisation that relationships between employees were not overly personal and the employment relationship ‘could withstand some friction and doubts if they arise’. Mr Boyle submitted that any difficulties, embarrassment or inconvenience arising from his reinstatement could be overcome. 115

[243] Mr Boyle submitted reinstatement is the only just remedy in this case and would ensure that all parties are given ‘a fair go all round’, on the following bases:

•  There is no evidence of Mr Boyle engaging in a history or pattern of similar conduct as his comment on 2 November 2018. The incident was an isolated event and he otherwise has a history of a skilful and experienced employee;

•  Mr Boyle acknowledged his wrongdoing at an early stage of the investigation;

•  There is no evidence that Mr Boyle’s reinstatement would have any adverse consequences upon BHP’s health and safety obligations.

[244] Mr Boyle specifically addressed BHP’s arguments as to why he should not be reinstated, and submitted:

•  Mr Prytherch gave no regard to positive elements of Mr Boyle’s employment when deciding to dismiss him;

•  There is no evidence that the Mine’s behavioural standards would be negatively affected by Mr Boyle’s reinstatement;

•  Mr Boyle’s alleged misconduct arose from a single, isolated incident of behaviour and there is no reasonable basis to suggest that he would repeat such conduct;

•  BHP was not seriously concerned about possible risks to health and safety were Mr Boyle to return to employment at the Mine and its purported concerns should be disregarded;

•  The ‘ATM incident’ with Ms Ramirez did not occur at all. Further, while Ms Barden and Ms Ramirez may have been uncomfortable with Mr Boyle’s comment, they were both able to work with Mr Boyle on their two subsequent shifts on 3 and 4 November 2018;

•  Mr Prytherch’s suggestion that reinstatement to a different crew does not work well in his experience of domestic violence matters is irrelevant, as Mr Boyle’s conduct was of an entirely different and less serious character. 116

•  Any events occurring at Mr Boyle’s subsequent employer Thiess are irrelevant. If I were to determine that I should consider matters arising from Mr Boyle’s employment at Thiess, those matters should be given little weight and are not sufficient to destroy the relationship of trust and confidence between Mr Boyle and BHP. Mr Boyle noted that he had been attending Thiess’s site to collect induction materials, which would have included Thiess’s policies including its zero-alcohol tolerance on site rules, thus he had not yet reviewed those policies. Mr Boyle submitted that BHP itself regularly deals with similar conduct on its own sites by issuing ‘Step 2’ warnings.

[245] Mr Boyle submitted that were I to order his reinstatement, I should exercise my discretion under s.391(2) of the Act and order that his continuity of employment and continuous service is maintained. Mr Boyle also submitted that I should make a further order compensating him for his lost wages as a result of his dismissal. Mr Boyle submitted that in the alternative that were I not minded to order that he be compensated for lost wages resulting from his dismissal, I should still order that he be reinstated with continuity of service. Mr Boyle noted that if I held concerns about possible interactions between him and Ms Barden or Ms Ramirez, I may order for him to be reinstated to a position no less favourable, such as at another of BHP’s mine sites covered by the Agreement.

[246] In oral closing submissions, the issue of the phone call between Mr Boyle and Mr Craig was discussed. It was noted that Mr Boyle denied the conversation as stated by Mr Craig. It was submitted that even if the Commission found that he had said to Mr Craig, “You fucking cunts won’t let me get a job anywhere” in an aggressive tone, it would not be a matter that seriously goes to trust and confidence. Mr Anderson submitted that it would be a flippant remark. When I suggested that it would not be a flippant remark, but an offensive one, if it has been said, it was submitted that the reference was not a direct reference to Mr Craig.

[247] Mr Boyle submitted in the alternative that if I considered reinstatement was inappropriate, then I should order that an amount of compensation be paid to him in lieu of reinstatement. Mr Boyle addressed the criteria set out in s.392(2)(a) – (g) regarding orders for compensation, as follows:

•  BHP is a large organisation and any order for compensation would not affect BHP’s enterprise;

•  Mr Boyle’s total length of service with BHP is eight years;

•  Mr Boyle would have remained employed by BHP for at least a further five years had he not been dismissed;

•  Mr Boyle took steps to mitigate his loss by seeking other employment. He obtained employment with Thiess, albeit short-lived, and has obtained employment with a new employer;

•  Despite mitigating his losses, Mr Boyle’s income has been significantly reduced;

•  Mr Boyle acknowledged that his dismissal from Thiess was likely as a result of his own actions. However, he submitted that it could not be said with certainty that he was dismissed as a result of attending Thiess’s site with a non-zero blood alcohol content and he may have been dismissed for any other reason.

[248] At the time of his dismissal on 5 March 2019, Mr Boyle’s income was $148,273.32, being an amount of $2,851.41 per week. He was due to commence employment with Thiess on 13 June 2019. He therefore lost income for a period of 14 weeks.

[249] Mr Boyle agreed that he was paid five weeks’ notice upon his termination. Taking that notice into account, he lost nine weeks’ wages following his dismissal, which amounts to $25,662.69.

[250] Mr Boyle received two weeks’ pay from Thiess based on a salary of $136,000 per annum. The amount that Mr Boyle received from Thiess averaged to $2,614.50 for each of his two weeks’ pay, and he lost a total amount $473.82 during that period.

[251] Mr Boyle received no income at all from 27 June 2029 until he secured employment with a new employer on 20 August 2019, a further seven weeks, which amounts to a loss of $19,959.87 based on Mr Boyle’s BHP salary. Mr Boyle’s weekly wage is $2121.35, and he loses $730.06 per week of income in the new role when considered against his salary at BHP.

[252] Mr Boyle noted that I may reduce an amount of compensation that would otherwise be ordered to be paid if I am satisfied that misconduct contributed to the decision to dismiss him pursuant to s.392(3) of the Act. Mr Boyle submitted that the amount of any such reduction should be limited to 25 per cent.

Submissions of the Respondent

[253] BHP conceded that it dismissed Mr Boyle at its initiative, and this was not a case of genuine redundancy, nor one where the Small Business Fair Dismissal Code applies.

[254] BHP set out the factual context upon which it based its submissions and which it submitted that I should find occurred, as follows:

•  That Mr Boyle’s comment of 2 November 2018 was made in response to Ms Barden saying that she had a headache;

•  Ms Barden and Ms Ramirez were genuinely offended by Mr Boyle’s comment;

•  During the meeting of 30 November 2018, Mr Boyle unnecessarily repeated his comment on more than one occasion and used a ‘creepy’ voice when repeating his comment;

•  During the meeting of 30 November 2018, Mr Boyle attempted to justify his comment on the basis that he ‘worked on a mine site’;

•  During the meeting of 21 February 2019, Mr Boyle said that had Ms Barden said she had a headache, he would have instead responded, ‘with a head like that it should ache’;

•  Following his dismissal, Mr Boyle approached Ms Ramirez at a shopping centre in Dysart and yelled at her.

Context of 2 November 2018 discussion

[255] BHP submitted that at the time of Mr Boyle’s comment on 2 November 2018, he had met Ms Barden only about one week earlier and had spoken to Ms Ramirez only ‘several times’. 117 In that context, Mr Boyle had made the comment, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can either have it orally or anally.”

[256] BHP maintained that Mr Boyle’s comment was made in response to Ms Barden remarking that she had a headache and I should accept as such. BHP noted in that respect that Mr Morris had in his original statement described that one of Ms Barden or Ms Ramirez had mentioned that they had a headache. During the hearing, Mr Morris said that there had been some discussion of headaches and stated that he thought Ms Barden said she had a headache. 118

[257] BHP noted that Ms Ramirez had said in her interview on 12 December 2018 that Ms Barden had said she had a headache before Mr Boyle’s comment, although she was not as certain at the hearing of this matter. BHP noted that Ms Barden herself did not describe the context in which Mr Boyle had made his comment in her original statement given during the investigative process, and could not recall having said that she had a headache or indeed having a headache on 2 November 2018.

[258] BHP submitted that the alternative version presented by Mr Boyle was inconsistent with the evidence of the other witnesses. BHP noted that Mr Boyle had throughout the original investigation maintained that the vehicle’s occupants had been discussing ‘rooting’ and sex with their partners, but during the hearing altered his evidence and stated that the discussion had concerned ‘who wears the pants’ in their relationships. BHP noted that both Ms Ramirez and Ms Barden denied discussing sex or sex with their partners at all, and Ms Barden denied that there had been any discussion about ‘who wears the pants’ in their relationships. 119

[259] BHP submitted that I am essentially presented with a dichotomy regarding this issue and I must either accept the near-contemporaneous and corroborative accounts of Ms Ramirez and Mr Morris, or I must accept Mr Boyle’s single account which is refuted by both Ms Ramirez and Ms Barden, and noting Mr Boyle’s vested interest in these proceedings. BHP submitted that I should determine this matter on the basis that Mr Boyle’s comment was made in response to Ms Barden saying words to the effect of ‘I have a headache’, rather than in the context of a general conversation about sex, or avoidance thereof, with one’s partner.

Offence of statement of 2 November 2018

[260] It was submitted that Mr Boyle had, throughout the investigation, attempted to mitigate the severity of his statement by asserting that those present in the vehicle laughed after he made the comment. During the hearing, Ms Barden and Ms Ramirez stated how offended they each were by Mr Boyle’s comment. It was submitted that the Commission should find that each of the women were, in fact, offended by the comment.

Meeting of 30 November 2018

[261] It was submitted that at no time did Mr Craig request Mr Boyle repeat the joke during the meeting of 30 November 2018, and Mr Boyle’s repeating of the joke was exacerbated by him saying it in a creepy or croaky voice. The Commission was urged to find that Mr Boyle’s conduct at the meeting was inappropriate.

[262] Where there is conflicting evidence as to whether Mr Boyle asserted, during the meeting, that he worked at a mine site to help explain the conduct, the Respondent urged the Commission to find that the contemporaneous notes made at the meeting provide a more accurate reflection of what was stated.

[263] At the meeting of 21 February 2019, the Respondent asserts that the evidence supports Mr Boyle saying “with a head like that, it should ache” with reference to Ms Barden. Mr Craig and Mr Field-Akred’s evidence is that Mr Boyle did not preface his statement in a way to refer to a male friend.

Exchange with Ms Ramirez in Dysart

[264] Relevant to remedy, the Commission was urged by the Respondent to find that the exchange occurred in the way stated by Ms Ramirez, and no remedy should be awarded to Mr Boyle in the event his dismissal is found to be unfair.

Section 387 of the Act

[265] BHP submitted that Mr Boyle’s dismissal was not harsh, unjust or unreasonable and was not unfair, and made submissions in respect of each of the criteria set out in s.387 of the Act.

s.387(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)

Mr Boyle’s comment

[266] BHP submitted that there was a valid reason for its decision to dismiss Mr Boyle.

[267] It was submitted that BHP’s investigation found that on 2 November 2018, Mr Boyle made a comment, while travelling in a light vehicle with three other workers, to the effect of:

“If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can either have it orally or anally.”

[268] BHP submitted that Mr Boyle’s comment of 2 November 2018 was grossly inappropriate in the context of the workplace, and caused the two female workers also travelling in the vehicle, Ms Barden and Ms Ramirez, to feel shock, offence and discomfort.

[269] BHP submitted that if the Commission accepts that the comment was made in response to Ms Bardon claiming she had a headache, then the gravity of the comment is more severe. Further, it was submitted that even if the Commission accepts Mr Boyle’s account of the context in which his comment was made, the comment was an escalation of the conversation and out of step with the tender of the discussion, particularly given Mr Boyle did not know Ms Barden or Ms Ramirez well. BHP also submitted that Mr Prytherch’s evidence, that he would have considered Mr Boyle’s conduct unacceptable and inconsistent with BHP’s behavioural expectations in any context, was relevant to the question of valid reason.

[270] It was submitted that Mr Boyle’s behaviour at the meeting on 30 November 2018 demonstrated further instances of misconduct and constituted a further reason to dismiss him. BHP submitted that this was because at the meeting Mr Boyle:

•  Repeated the comment made 2 November 2018 multiple times without cause;

•  Repeated his comment in a “creepy” voice;

•  Disclosed a lack of contrition;

•  Sought validation from Mr Harper that his comment was “funny”; and

•  Made Mr Craig and Mr Harper feel “uneasy” as a result of his conduct during the meeting.

Sexual Harassment

[271] BHP set out ss.28A and 28B of the Sex Discrimination Act 1984, and submitted that Mr Boyle’s conduct on 2 November 2018 was conduct that amounted to “unlawful sexual harassment”. It was submitted, with reference to the test in Johanson v Michael Blackledge Meats, 120 the comment was plainly a comment of sexual nature and a reasonable person would have anticipated the possibility that one or more of the other individuals in the vehicle would have been offended by the comment.

Breach of policy

[272] It was submitted that Mr Boyle’s conduct amounted to an “egregious” contravention of BHP’s policies and procedures, and that this was relevant to the question of valid reason. BHP submitted that Mr Boyle’s conduct contravened BHP’s Charter Values of “Respect” and “Integrity” and the sections of BHP’s Code of Conduct outlined above at paragraph [15].

[273] BHP submitted that its policies and procedures were clear and well developed in its workplace, making Mr Boyle’s conduct more concerning. It was submitted that Mr Boyle’s contract of employment required him to comply with the Code of Conduct, and that he understood at all relevant times that the Code of Conduct set out his obligations in relation to workplace behaviour. It was also submitted that Mr Boyle had been trained on the Code of Conduct, acknowledged that the Charter Values were displayed at the Mine, and was aware of the availability for copy of the Code of Conduct to be provided to him.

[274] BHP submitted that, supported by the evidence of Mr Craig and Mr Prytherch, any suggestion that the Mine culture had changed at the workplace during the period of Mr Boyle’s absence was rejected, and that the comment of 2 November 2018 would not have been considered acceptable even five years ago at the Mine.

Summary of valid reason

[275] BHP submitted in summary that there was a valid reason for the dismissal because in Mr Boyle’s making of the comment of 2 November 2018, he engaged in conduct that:

•  Caused offence to Ms Barden and Ms Ramirez;

•  Amounted to “unlawful sexual harassment”: and

•  Contravened BHP’s well established policies and procedures.

[276] BHP further submitted in summary that Mr Boyle’s conduct at the meeting of 30 November 2018 was a further instance of misconduct, and constitutes a valid reason for his dismissal in its own right.

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

[277] BHP submitted that Mr Boyle was notified of the reasons for his dismissal because the reasons for his dismissal were articulated in the Show Cause Letter. BHP submitted that the Show Cause Letter outlined the reasons for the dismissal, being:

•  Mr Boyle’s conduct in making the comment on 2 November 2018; and

•  Mr Boyle’s conduct on 30 November 2018 in repeating the comment and attempting to defend its appropriateness by reference to the fact that he worked on a mine site.

[278] It was submitted that the Show Cause Letter set out to Mr Boyle that BHP considered his conduct on 2 November 2018 and 30 November 2018 to be in breach of specified sections of the BHP Code of Conduct and the BHP Charter Values, and that as at the date of the Show Cause Letter Mr Boyle understood that BHP considered his conduct was in breach of both those policies.

[279] BHP submitted that, supported by the evidence of Mr Prytherch, events other than the conduct on 2 November 2018 and 30 November 2018 were not taken into account in deciding to dismiss Mr Boyle, therefore he was notified of the reasons for his dismissal.

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

[280] BHP submitted that Mr Boyle was given the opportunity to respond to the reasons for his dismissal, and did so in his Show Cause Response Letter of 27 February 2019. BHP submitted it was relevant that Mr Boyle was put on notice of the reasons for his dismissal since at least the meeting of 30 November 2018.

[281] It was submitted that BHP had regard to the matters raised by Mr Boyle in the Show Cause Response Letter and nevertheless decided to dismiss him, which does not mean he was deprived of the opportunity to respond. BHP submitted that, supported by evidence of Mr Prytherch, any suggestion that the outcome of Mr Boyle’s disciplinary process was pre-determined lacks evidentiary foundation.

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

[282] It was submitted that there was no unreasonable refusal by BHP to allow Mr Boyle to have a support person present at any discussions relating to his dismissal.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[283] It was submitted that BHP dismissed Mr Boyle because of unacceptable conduct, and not for any reason(s) related to his work performance.

s.387(f) - Whether BHP’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[284] BHP submitted that the size of BHP’s enterprise is a relevant consideration insofar as there is any criticism of the time dedicated by BHP to take disciplinary action in response to Mr Boyle’s conduct. It was submitted that BHP does not otherwise contend that the action taken in effecting Mr Boyle’s dismissal was affected by the size of its enterprise.

[285] It was submitted that the action taken by BHP in effecting the dismissal was not affected by any absence of dedicated human resources expertise.

s.387(h) - Other matters

Mr Boyle’s personal circumstances

[286] BHP submitted that Mr Boyle’s work history of less than five years in the context of the BHP enterprise is of no real significance, and his work history is at best a neutral consideration. It was submitted that Mr Boyle’s submission in relation to the consequence of the dismissal should be afforded limited weight as it cannot be said to have occasioned any greater suffering than is the case for any employee who is dismissed for reasons related to misconduct.

Inconsistent treatment

[287] It was submitted that Mr Boyle’s submission that he has been subject to “inconsistent treatment” is without merit because no examples of differing disciplinary responses to comparable behaviour were identified, and the other workers travelling in the vehicle were not engaging in conduct comparable to the comment made by Mr Boyle. BHP further submitted that Mr Harper, Mr Craig and Ms Barden gave evidence that they had not previously heard comments of the nature of that made by Mr Boyle in the workplace, or BHP was otherwise not aware of any such comments.

Mr Morris’ evidence

[288] BHP submitted that Mr Morris’ submission that he asked his supervisor to change his written statement to include reference to Ms Barden and Ms Ramirez laughing in response to Mr Boyle’s comment, and the fact that Ms Barden may have been present in the room when preparing his statement, are both immaterial.

Opportunity to apologise

[289] It was submitted that a discussion was not facilitated to provide Mr Boyle an opportunity to apologise for his comment as this would have been inappropriate because Ms Barden and Ms Ramirez did not feel comfortable with such proposal. It was further submitted that Mr Boyle’s insistence that he should have been afforded an opportunity to apologise demonstrates a failure to appreciate the significance of the effect of his behaviour on Ms Barden and Ms Ramirez. BHP submitted that, supported by evidence of Mr Prytherch, even if Mr Boyle was given the opportunity to apologise (noting that he did apologise) it would not have resolved the matter.

Just Culture Decision Tree

[290] BHP submitted that it does not accept that the Just Culture Decision Tree depicted Mr Boyle’s conduct in the “worst possible light” and failed to acknowledge his “remorse” in his correspondence of 2 December 2018.

[291] In written submissions BHP stated that its Just Culture Decision Tree and Fair Play Guidelines are no more than “guidelines”, and that neither documents are referred to in industrial instruments or Mr Boyle’s employment contract. BHP submitted that deficiencies in the Just Culture Decision Tree would not prevent Mr Prytherch from making a decision about the appropriate disciplinary action to be taken provided a fair and just process had been applied.

[292] BHP submitted that in the course of making the decision to dismiss Mr Boyle, Mr Prytherch:

•  Did not rely exclusively on the contents of the Just Culture Decision Tree;

•  Had no regard to the note that Mr Boyle’s behaviour may have been a common occurrence;

•  Reviewed all the information collected in the investigation and show cause process; and

•  Was aware that Mr Boyle had “professed to acknowledge” his misconduct and had made “promises” to comply with the Code of Conduct in the future.

[293] It was submitted that any alleged deficiencies in the Just Culture Decision Tree caused Mr Boyle no prejudice nor impacted the decision to dismiss him. BHP further submitted that Mr Boyle’s conduct did not amount to only a “cultural” breach because of his admission that it was not expected he make the comment. It was also submitted that there is nothing preventing BHP from dismissing an employee who engages in misconduct, regardless of how such conduct in classified in the Just Culture Decision Tree.

Duration of investigation

[294] BHP submitted that the length of its investigation did not cause Mr Boyle any prejudice and that the length of the investigation did not impact on its decision to dismiss him. It was submitted that the time taken for BHP to resolve the matter was attributable to a number of matters outside of its control, including roster cycles of the involved individuals, staff leave over the Christmas period and delays caused by Mr Boyle.

Remorse

[295] BHP submitted that the Commission should treat with scepticism the “remorse” that Mr Boyle purported to exhibit.

[296] It was submitted that Mr Boyle by his own admission was advised of the allegations against him at least a week before the meeting of 30 November 2018, and failed to take any steps to address the allegations at that time. BHP submitted that Mr Boyle’s failure to address the allegations until they were “squarely” put to him demonstrates that he only exhibited remorse once called out for his behaviour. It was further submitted that Mr Boyle did not demonstrate any remorse for his conduct during the meeting of 30 November 2018, even after the allegations were put “squarely” to him.

[297] BHP submitted that the first occasion Mr Boyle demonstrated any remorse was days after the meeting of 30 November 2018 in a written response in which he had assistance to prepare. It was noted that this response contained numerous assertions to the context in which the comment was made.

[298] It was further submitted that the Commission should have regard to Mr Boyle’s attempt to make a further “joke” about the comment at the meeting of 21 February 2019, and Mr Boyle’s response during cross examination that “I was a naughty boy and I won’t ever do it again” 121 which demonstrates that he fails to understand the impact of his comment.122

Vicarious Liability

[299] BHP submitted that considerations of vicarious liability were not taken into account by Mr Prytherch in making the decision to dismiss Mr Boyle.

[300] However, it was submitted that when an employee’s misconduct could create legal exposure to an employer this should be taken into account by the Commission in its assessment of whether the employer’s reason(s) for dismissing that employee are valid. On this point, it was submitted that in the case of Johanson v Michael Blackledge Meats 123 the employer was held vicariously liable where they failed to take disciplinary action against an employee who had engaged in sexual harassment.

Discretion exercised by Employer

[301] BHP submitted, with reference to the case of Walton v Mermaid Cleaners Pty Ltd, 124 that the Commission should not substitute its own views for the discretion reasonably exercised by an employer as reasonable minds may differ on the appropriate disciplinary response to a particular instance of misconduct.

Mr Boyle’s employment with Thiess

[302] BHP submitted that Mr Boyle’s evidence as to his dismissal from Thiess is relevant to his credibility, the worth of Mr Boyle’s “commitments” and the calculation of any award of compensation. It was submitted that:

•  Mr Boyle demonstrated preparedness to be at best evasive (and at worst dishonest) in cross-examination about the termination of his employment from Thiess, and this should be regarded when assessing the credibility of his evidence;

•  During the show cause process, Mr Boyle claimed an appreciation of honouring BHP’s Code of Conduct. However, he subsequently gave a commitment to Thiess to comply with Thiess’ policies and breached it when testing positive in a blood alcohol reading on a Thiess work site. BHP submitted that any assertion from Mr Boyle that he understands the importance of complying with policies cannot be regarded; and

•  If the Commission orders compensation, no award of compensation should be ordered post 13 June 2019, because Mr Boyle would have received an income with Thiess past this date if not for failing the drug and alcohol test.

Oral closing submissions

[303] Mr McLean, for BHP, submitted during oral closing submissions that: 125

“The applicant has, as the Commissioner's picked up on, advanced various contexts of his comments throughout the investigation and then a hearing.  We think that speaks volumes for the weight that should be afforded to the applicant's version of the context of the conversation.  But at his highest, Commissioner, following cross-examination and following the hearing, as you pointed out, the extracts of I think it's 369 to 370, paragraphs 369 to 370 from the transcript, disclose, very clearly, that the applicant's version of events is no longer that it was a contest or a comment about having sex with partners but was, instead, a comment, as the Commissioner identified, about dynamics in the household.  Who wears the pants in the relationship, who's in charge and, effectively, where the applicant or where others in the vehicle gets fed up with their partners, the fact that they use the excuse of a headache to regain control.

We say that's a very different proposition to a comment about getting out of sex or having sex, even on the applicant's own evidence, given during cross-examination.  There was actually not a sexual flavour to the conversation and we say that that's important.  So even if the applicant's case is now taken at its highest, this was a comment, a sexually charged comment, that came out of the blue and wasn't, as initially advanced, a comment that came about in the context of a sexual conversation.

…

As I conceded, Commissioner, Ms Barden doesn't recall having a headache, but what both Ms Barden and Ms Ramirez do, unequivocally, is deny that there was any conversation about sex.  They deny they were talking about rooting, they deny they were talking about getting out of sex with their partners,…”

[304] It was submitted that Mr Boyle’s repetition of the comment at the meeting of 30 November 2018 on multiple occasions in a croaky voice was inappropriate and an additional instance of misconduct. However, BHP submitted that it was immaterial as Mr Prytherch’s evidence was that he would have dismissed Mr Boyle on the basis of his conduct on 2 November 2018 only. 126 It was further submitted that BHP’s case is not dependant on whether further misconduct was engaged in on 30 November 2018, but that it is a relevant consideration for the Commission to have regard to.

[305] BHP in oral closing submissions referred to the decision of Commissioner Spencer in Martin Green v MMS Security Pty Ltd. 127 It was submitted that the Applicant in that decision argued that his dismissal was disproportionate to a remark (that was disputed to be of sexual nature) that lead to the employer’s decision to dismiss him, and Commissioner Spencer found that the behaviour was a breach of workplace policy and therefore provided a valid reason for his dismissal. It was submitted that the Commission should have regard to this decision.

[306] In respect of ss.387(b)-(c) of the Act, BHP referred to my decision of Odgers v Central Queensland Services Pty Ltd, 128 which was released for publication around the time of the hearing of this matter. It was submitted that this was not a case in which the enterprise agreement prescribed compliance with the Just Culture Decision Tree or the Fair Play Guidelines, and that the Commission would fall into error if it considered evidence led in other proceedings as to the purpose of those documents.

[307] BHP made further submissions that it does not accept that the Just Culture Decision Tree is a relevant factor in for a consideration of ss.387(b)-(c) of the Act. The following was submitted: 129

Remedy

[308] BHP made the following submissions as to remedy, in the instance the Commission finds that the dismissal of Mr Boyle was unfair.

Reinstatement

[309] BHP submitted, with reference to Nguyen v Vietnamise Community Ethic School, 130 that the Commission should only order reinstatement if satisfied that it is was appropriate to do so.

[310] It was submitted that reinstatement is not appropriate, having regard to:

•  The making of the comment of 2 November 2018, which itself should lead to a finding that it is not appropriate for Mr Boyle to be reinstated;

•  The effect that Mr Boyle’s conduct had on his relationship with other employees;

•  The fact that Ms Barden and Ms Ramirez would not be comfortable to work with Mr Boyle again;

•  How Mr Craig was approached by multiple employees asking if there was going to be any action taken in response to Mr Boyle’s comment;

•  The fact that Ms Harper said she felt “uneasy” from Mr Boyle’s conduct at the meeting of 30 November 2018;

•  How Mr Boyle allegedly swore at Mr Craig during his last conversation with Mr Boyle; and

•  BHP’s loss of trust and confidence in Mr Boyles ability to comply with policies and procedures.

[311] BHP further submitted that to reinstate an employee in this circumstance, would be to send a message to the broader workforce that if you engage in sexual harassment at the workplace you can still keep your job.

[312] With reference to s.391(1)(b) of the Act and the proposition that Mr Boyle could be reinstated at other sites, BHP submitted that there is no basis for the Commission to make an order pursuant to s.391 of the Act without evidence in front of it about whether such position or arrangements are available within BHP’s workplace.

[313] It was also submitted that in the instance the Commission finds that reinstatement is an appropriate remedy, then the Commission should not make orders for back pay and continuity of service as to do so would be inappropriate and deprive Mr Boyle’s conduct of consequence.

Compensation

[314] BHP submitted that any order for the payment of compensation should be minimal having regard to (but not limited to):

•  The severity of Mr Boyle’s conduct;

•  That Mr Boyle was paid for the duration of the investigation;

•  That Mr Boyle was paid five weeks’ pay in lieu of notice; and

•  That Mr Boyle obtained other employment with Thiess, and the reasons that he no longer holds this other employment is because of misconduct.

Consideration

s.387(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)

[315] Mr Boyle was an employee with slightly more than seven years’ service with the Respondent at the time of his dismissal. He had been out of the workplace for nearly four years on unpaid personal leave on account of a personal illness or injury. It had been open to the Respondent to terminate Mr Boyle on account of him not being able to fulfil the inherent requirements of his role, but it had not undertaken that course of action. Surprisingly, the Respondent had overpaid Mr Boyle approximately $91,000, requiring him to repay the substantial sum.

[316] It was submitted by Mr Boyle that during his absence from the workplace, more females had been introduced to mining, and females now make up a greater proportion of employees (directly and indirectly) than when Mr Boyle first commenced at the mine. On the evidence before the Commission in this matter, this is true, as the Respondent has consciously moved towards increasing female participation at the Mine. That is not to say, however, that there were few females employed at the Mine two, three or four years earlier.

[317] I do not find that Mr Boyle’s conduct in expressing the crude joke can be mitigated by his explanation of his unfamiliarity with working with females. He did not give evidence that he has never worked alongside females in the workplace.

[318] The joke made by Mr Boyle is indeed crude. It is particularly vulgar and graphic, and may easily offend others. It would not, however, offend everybody. There are many people who would find the joke amusing, even if those persons were to admit that it ‘crossed the line’ and might be considered too much for a joke within the workplace.

[319] Ms Barden was most offended by the joke; extremely so. Ms Ramirez was offended too, but it would seem to me that she was less offended than Ms Barden. During my exchange with Ms Barden at [111], it is my impression that Ms Barden is offended by any sexual discussion in the workplace. Mr Morris, it seemed, provided a different offering as to what was said by Mr Boyle on 2 November 2018. Mr Morris stated that Mr Boyle had said that he’d get his “missus to suck it off”, whereas other accounts were that Mr Boyle would “offer to administer [his old fella] orally or anally.” It’s not clear if one account is more offensive than the other, but Mr Morris’ account was the one that appeared to have come to the attention of Ms Berrigan when she made inquiries of him. Mr Morris was quick, and correctly so, to point out that Mr Boyle had not made the suggestion to either Ms Barden or Ms Ramirez that they should do such act to him.

[320] I consider that in a modern workplace, there has been an improved culture as to what is tolerated and what is not. Compared to recent decades, there are far less slaps on the bottom, suggestive leering, unsafe initiations on apprentices and other new workers, and the removal of provocative posters. These are all positive steps taken in modern workplaces to reduce the risk to employees and visitors to the workplace of offensive material, actions and statements which may constitute sexual harassment.

[321] There will, however, in most workplaces, remain the right to have a sense of humour. A workplace devoid of some humour and the occasional joke is, I consider, to be a very sad, dull and oppressive workplace. For many employees spending approximately 38 hours per week at work, light-hearted bantering and the occasional joke will make their workplace, and for those within it, a better, more productive and fulfilling workplace.

[322] I do not consider, in most circumstances, that an employee should lose their job on account of the telling of a single joke. As I put to Mr Craig, a senior manager may well tell a raucous, arguably offensive joke. Should that senior manager lose their job on account that somebody considered it to be offensive? That is not a proposition I would support, and if that proposition was adopted, there would be many, many employees in the workplace dismissed on account of mildly or even strongly offensive joke-telling, even if a first offence.

[323] I consider there to be some tolerance in modern workplaces to joke-telling and to some degree, larrikinism. In my view, it would be sad to completely lose Australian larrikinism, including in the workplace, so long as it does not seriously adversely affect others. To remove larrikinism would mean workplaces would be devoid of nicknames, which are often given on account of a person’s attributes or perceived attribute, and where the nickname is welcomed by the person so named. Mr Boyle’s nickname is “yappy” on account of him, I understand, yapping or talking all of the time. He considers himself to be a bit of a larrikin.

[324] Mr Boyle should not have made the joke in the workplace, but he did. He did so in front of two women that he did not know very well. He had experienced very few hours of work with Ms Barden and Ms Ramirez. He had not mixed with them socially, nor spent lots of time with either of them to have any understanding as to whether they would likely find such a joke amusing or offensive. He did not give any consideration to how they, or Mr Morris might feel hearing such a joke.

[325] It is not to say, however, that simply because Mr Boyle didn’t target his audience well, and if he had, his joke would be less offensive. Mr Boyle should not have said it at all. It might well be a joke worthy to be said in a pub among friends, but not in the workplace among workmates, friends or not.

[326] Given that it was said in the workplace, it was entirely reasonable for the Respondent to undertake an investigation. It is unclear why Mr Boyle was not asked to, within days of the incident, complete an event statement form. He was not asked to do so on 3 and 4 November 2018 when the allegation was coming to light, nor was he asked to do so on 14 November 2018 when he was stood down from work. His colleagues in the vehicle were approached to complete an event statement form.

[327] Mr Boyle was then asked questions during the meeting of 30 November 2018. He repeatedly informed the Respondent that the context in which he made the statement was made; that the women in the car had been discussing ‘rooting’ or using a headache as an excuse not to have sex with their husbands.

[328] During the meeting of 30 November 2018 he repeated the joke. He had earlier been asked to confirm that the joke contained the term “cock”, and he replied no, the term he used was “old fella”. Mr Boyle was asked, “Do you believe it was appropriate?”. Instead he answered by repeating the joke. Mr Craig and Mr Harper stated that they were offended.

[329] I find it quite extraordinary that such great offence was taken by Mr Craig and Mr Harper in Mr Boyle’s repetition of the joke. This ultimately formed a reason for the dismissal given by the Respondent. In my view, as an investigator of workplace conduct, it is an investigator’s role to be able to hear everything that is put without personally taking offence with what is said during the investigation. An investigator should be strong and impartial, not prone to being a wilting flower upon hearing difficult or potentially offensive matters during an investigation. If they are easily offended, they should not be in the role of investigator.

[330] The offence taken by Mr Craig and Mr Harper appears to me to be well overstated given their positions with the Respondent; Mr Craig as Superintendent Production Coal, and Mr Harper, Mining Supervisor. This is even more evident when Mr Harper’s evidence before the Commission is that he does not swear at work. Mr Craig’s evidence is that he has not heard Mr Harper swear at work, yet Mr Field-Akred stated he has heard Mr Harper swear using the word “fuck” in the workplace.

[331] Having had the benefit of observing Mr Craig during the hearing, I consider Mr Craig exaggerated the offence Mr Boyle’s repeating of the joke caused him. Mr Craig was repeatedly warned by me to speak up, as the hearing was conducted in a large court room in Mackay and he was, until my third warning, speaking with a very soft voice. I consider that he was purposely trying to demonstrate that he is somewhat timid, when I do not accept that to be the case. His evidence was later audible having been warned by me.

[332] I accept the contemporaneous notes of Mr Craig and Mr Harper relevant to the meeting of 30 November 2018 as true and accurate. I am certain that Mr Boyle was “carrying on” during the meeting of 30 November 2018. I find that Mr Boyle did announce that the best way to tell the joke is to use a croaky or creepy voice, and then a doctor’s voice towards the end. He then demonstrated it. Mr Boyle’s denial of this is not accepted.

[333] Mr Boyle did, during the meeting of 30 November 2018, genuinely consider that the joke was funny. He did not show any remorse. I accept Mr Craig’s evidence that Mr Boyle was looking for validation from Mr Harper that the joke was funny. Mr Boyle repeatedly stated the context of how the joke was made; that the women were talking about “rooting”. He was adamant about that.

[334] The evidence is clear that Mr Boyle knew, roughly, what the meeting of 30 November 2018 was about. He stated so in the meeting that people had been talking, and he knew that is why he had been stood aside. I do not accept Mr Boyle’s evidence that he didn’t know, and that it could have been about him hitting a kangaroo, for all he knew.

[335] Mr Prytherch was particularly upset, in deciding whether to dismiss Mr Boyle, that during the extensive period 2 – 30 November 2018, Mr Boyle still considered his joke to be funny, and he had sought validation of the joke when restating it. I accept the Respondent’s position on this point. Mr Boyle had with him a support person at the meeting of 30 November 2018, and it had been a considerable period of time for him to reflect on his conduct of 2 November 2018. That he thought his conduct on 2 November 2018 was still funny on 30 November 2018 is surprising, given the seriousness of having been stood down with pay for around a fortnight, since 14 November 2018.

[336] I find that Mr Boyle did say during the meeting that he works at a mine as an attempt to downplay what he said on 2 November 2018. I have found the notes taken to be contemporaneous. I do not accept Mr Boyle’s evidence in writing, or during the hearing that he did not make that statement.

[337] I accept that Mr Boyle had an obligation to meet BHP’s Code of Conduct and Charter Values. They are in place for an honourable reason, and they are helpful tools to ensure the workforce understands its responsibilities to each other, the Respondent and to others. The Code of Conduct and Charter Values are not terribly onerous. There will, however, always be varying degrees of compliance with each of the documents.

[338] I find that Mr Boyle was appropriately trained in both the Code of Conduct and the Charter Values. They have been in place for a considerable period of time and are well advertised throughout the Mine. Mr Boyle is not a stranger to them. He has had ample opportunity to familiarise himself with them, and if he did not read them as thoroughly as he should have, his failure to do so should not be borne by the Respondent.

[339] While it is true that Mr Boyle carried on during the meeting of 30 November 2018, and made a very poor impression on Mr Craig, I do not consider it inappropriate for him to have restated the joke. I have stated that I considered Mr Craig and Mr Harper to be over-dramatasizing the effect the repetition of the joke had on them. However, the manner in which Mr Boyle repeated the joke, using the croaky voice and the doctor’s voice was, quite simply, idiotic. He had not used that voice when he made the statement on 2 November 2018, and it makes little sense why he thought it a good idea to do so on 30 November 2018 in assisting with his explanation as to why the joke was funny.

[340] I find that between 30 November 2018 and his letter of 4 December 2018, Mr Boyle received advice from his union, and he quickly smartened his position on the issues. He was apologetic and remorseful. He stated that he understood that his behaviour on 2 November 2018 was not appropriate. He appropriately said all of the things he should have said. However, he still maintained his earlier position as to context, and what he alleged the women had said to find him making the joke that he did.

[341] Mr Boyle’s letter of 4 December 2018, together with the statements made by him on 30 November 2018 caused the Respondent to seek further information from Mr Morris, Ms Barden and Ms Ramirez as to the context of the discussion before the making of the joke. Mr Rake rang Mr Morris in early December 2018, and Mr Morris said words to the effect, “I can’t remember exactly was conversations were being had but I do remember something about sex, Panadol, headaches and may have been about partners, but what I do remember is that the two ladies that were in the car laughed at the comments that were made by Kevin Boyle”. Ms Barden and Ms Ramirez flatly denied the context attributed to them, and denied that there was any discussions involving sex or ‘rooting’, or using a headache as an excuse from having sex with their husband.

[342] I find that Ms Barden and Ms Ramirez’s account is a far more accurate account in December 2018 that that of Mr Morris. Mr Boyle’s joke was indeed about sex, Panadol, headaches, and about a partner. During the hearing the highest he took his evidence was to the women supposedly discussing wearing the pants in their respective relationships. I am not critical of Mr Morris’ account in early December 2018, but I do not accept that it correlates that he agreed that Ms Barden and Ms Ramirez were discussing having sex with their husbands, or withholding sex from their husbands by using a headache as an excuse.

[343] Having observed Mr Boyle during the hearing, and even taking into account the effluxion of time, and reflecting on the varying accounts at [341], I am compelled to find that Mr Boyle inappropriately and undeservingly made improper and false accusations against Ms Barden and Ms Ramirez as to the discussion they were having in the vehicle which led to him making the joke. It is an extraordinary slur against the women, maintaining during the investigation that they had been discussing ‘rooting’ or withholding sex from their husbands. Mr Boyle was adamant throughout the investigation process, and I have no doubt he would have, if asked by any other person during the investigation, repeated his assertion that the women said these things.

[344] His evidence during the hearing was that there wasn’t that discussion as such; rather, there was some discussion about the women ‘wearing the pants’ in the relationship. It was submitted that if that statement was said, which I accept was not said, that it is a form of innuendo. As I put during closing submissions, if it had been said by Ms Barden that she wears the pants in the relationship, or even that she had a headache, it does not correlate to the women discussing ‘rooting’ or withholding sex on account of the excuse of a headache.

[345] Despite Ms Barden’s hazy recollection, I find that she did make a reference to a headache in the discussion in the vehicle. I have no hesitation whatsoever in finding that Ms Barden did not engage in any sexualised discussion or innuendo. Her tolerance for workplace behaviour of others is, on the evidence before me, prudish.

[346] I find that Mr Boyle took a reference to a headache in a non-sexualised way and saw it as an appropriate segway to introduce his joke. As I have said above, many people have told a crude joke in the workplace, and I do not consider it appropriate that it should necessarily result in a loss of employment, even if it is in breach of a company’s workplace policies, code of conduct or charter values. A one-off joke should be appropriately dealt with, and appropriate warnings implemented. Termination for a single offence is, in these circumstances, far too harsh a punishment.

[347] The Respondent’s finding that Mr Boyle’s repetition of the joke on 30 November 2018 during the investigation meeting also warranted dismissal is completely disproportionate to the conduct, and an extraordinary position to take. I find that the position taken by Mr Craig from that point forward was prejudiced. The offence said to have occurred as a result of the repetition of the joke on 30 November 2018 was fanciful. Of further concern is the evidence given by Mr Prytherch during the hearing that seemed to me, to suggest that the Respondent did not make a finding on this issue forming the reasons for the dismissal, when clearly it did.

[348] For the above reasons, I do not find that there was a valid reason for the dismissal for the reasons given by the Respondent; the telling of the joke on 2 November 2018 and Mr Boyle’s conduct during the meeting of 30 November 2018.

[349] I do find, however, that Mr Boyle’s assertions relevant to the context of the conversation were false, and made by him in an effort to substantiate why he made the joke. Throughout all of the investigation period he maintained the line that Ms Barden and Ms Ramirez had been engaging in sexualised talk. On the evidence before the Commission, I do not accept this to be true, and I consider that Mr Boyle falsely led the Respondent on a wild goose chase in an attempt to downplay his misconduct.

[350] I consider this purported slur against Ms Barden and Ms Ramirez to be most foul. They appear to me to be women who have earned their job at the Mine, employed by Workpac and not directly. They are working in what was once only a man’s world. They deserve much more than a false accusation that they were engaging in sexualised talk. They did not deserve to be so unfairly maligned by Mr Boyle’s false assertions.

[351] Even though it was not the reason provided by the Respondent as a reason for the dismissal, I find that Mr Boyle’s false assertions against Ms Barden and Ms Ramirez constitutes a valid reason for the dismissal.

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

[352] Mr Boyle was notified of the reasons given by the Respondent for the dismissal. He was informed in the Show Cause Letter that the findings made put the context of the discussion framed by Ms Barden stating that she had a headache. The Respondent did not directly state to Mr Boyle that it did not accept his assertions that the women had been engaged in sexualised talk. Mr Craig and Mr Prytherch had the benefit of Ms Barden’s and Ms Ramirez’s statements where they denied (from December 2018) having engaged in sexualised talk. It was not directly put to Mr Boyle that there had been a firm denial by the women.

[353] I accept Mr Boyle’s submissions that Mr Prytherch, the decision maker, in written correspondence to Mr Boyle did not make him aware of all of the matters under consideration by him. At no time did Mr Prytherch inform Mr Boyle that he and Mr Craig considered his written correspondence relevant to his remorse and the apologies offered to be non-genuine.

[354] In fact, when Mr Boyle did all that could be expected of him, in expressly stating his remorse for his conduct on 2 November 2018, unbeknownst to him, his correspondence was treated with contempt. He was not believed. He was also tarred with his conduct being a regular occurrence. Whilst the statement that Mr Boyle’s conduct was a regular occurrence was noted by Mr Craig, I consider that it was adopted by Mr Prytherch. When asked during the hearing what that meant, he considered that it also meant Mr Boyle’s conduct on 30 November 2018. I do not accept that evidence, and I am of the view that Mr Craig adopted Ms Ramirez’s account that Mr Boyle had made a similar joke on the bus the morning of 30 November 2018. I consider that Mr Prytherch adopted Mr Craig’s finding.

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

[355] Mr Boyle was provided with an opportunity to respond to the reasons provided by the Respondent; the conduct of 2 November 2018 and 30 November 2018. He did so with the assistance of his union representatives. In the correspondence sent by him, he maintained the context of the discussion occurred as he had stated earlier; that there had been sexualised talk by the two women.

[356] Mr Boyle was not provided with an opportunity to address Mr Craig or Mr Prytherch on their common belief that his remorse was disingenuous as nobody from the Respondent had held that discussion with him or communicated such a finding.

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

[357] There was no refusal for Mr Boyle to have a support person present at all meetings held with management.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[358] Mr Boyle was dismissed for misconduct, and accordingly this is not a relevant consideration.

s.387(f) - Whether BHP’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[359] The Respondent is a very large organisation with a dedicated HR and employee relations team. I do not consider that this is a relevant consideration, although I make appropriate criticisms below in my consideration of other matters.

s.387(h) - Other matters

[360] I have, in several earlier decisions unrelated to Mr Boyle’s application, been critical of the Respondent and associated entities relevant to the Fair Play Guidelines and the Just Culture Decision Tree. Very disappointingly, it is again necessary to castigate the Respondent for the manner in which it applies the Fair Play Guidelines and Just Culture Decision Tree.

[361] Mr Prytherch’s evidence was that he considered the Fair Play Guidelines to be a company policy that he could follow, but was not obliged to follow. Even following the dismissal, and answering questions during the hearing, he stated that he had contacted BHP’s HR team and been advised that the Fair Play Guidelines did not have strict application on the work performed by Mr Boyle, because they were not referenced in the enterprise agreement applying at the Mine.

[362] If Mr Prytherch had reviewed the latest version of the Fair Play Guidelines when he completed the Just Culture Decision Tree, he would have read that they have application at the Mine. It is incomprehensible that in Mr Prytherch’s position, he did not know prior to the dismissal, nor after the dismissal that BHP had in place a long-standing policy that expressly stated its application to the Mine. It is therefore clear that Mr Prytherch has had no regard to the necessary application of the Fair Play Guidelines to the Mine for the period he has been Manager Production Coal at the Mine.

[363] During the evidentiary case, Mr McLean was unsure as to the application of the Fair Play Guidelines at the Mine, and offered up a view that because they were not referenced in the enterprise agreement, they did not apply. It was only at the Commission’s request that the latest Fair Play Guidelines be produced that it was discussed during oral closing submissions that they indeed have application on account of being within the Respondent’s policy.

[364] In my view, the Respondent expects its employees to abide by the Respondent’s numerous policies, but its own senior management have a complete lack of knowledge as to the application of the Fair Play Guidelines, a policy of the Respondent’s creation. The hypocrisy is astounding and unacceptable. It is not even a terribly complex issue to address. Simply, all sites where the Fair Play Guidelines are stated to apply by virtue of it being within the site’s enterprise agreement, or by statement of scope and application within the Fair Play Guidelines, should promulgate its existence at those sites and train the relevant personnel. It is my observation that in a number of unfair dismissal matters that have come before me on this issue with the same Respondent or associated entity, there is ignorance as to the application of the Fair Play Guidelines. There has been no satisfactory explanation provided to me as to why the Respondent and its associated entities are not able to properly address this issue.

[365] Mr Craig’s completion of the Just Culture Decision Tree was made on 16 January 2019. He expressed a view that Mr Boyle’s conduct was intentionally deviant, he had engaged in similar conduct, and Mr Boyle did not accept that he had breached the Respondent’s policies.

[366] Clearly Mr Craig’s completion of the Just Culture Decision Tree was incorrect. Mr Boyle had, by as early as 4 December 2018, acknowledged the breach. He said as much by expressly stating that he accepts that the statement was not appropriate, and he apologised. He offered to revisit the Code of Conduct and considered further training might be beneficial. These concessions were ignored by Mr Craig in his completion of the Just Culture Decision Tree.

[367] Further, it is noted that the latest version of the Fair Play Guidelines, with a date of 15 June 2018 states the following:

“10.2 Prior to commencement of the Just Culture process, an objective investigation should be conducted to gather the facts necessary to complete the Just Culture Decision Tree. [it is noted this should be labelled 9.2 and not 10.2]

10. Just Culture Tree

The Just Culture Tree form is a 7 part process used to determine whether an already investigated event or breach was intentional or unintentional.

This process is not the investigation. The following form should only be utilised where an objective investigation reveals a breach/infringement of a policy, procedure, process or contractual arrangement (safety or non-safety related). “

[368] Appendix 2 is the Just Culture Decision Tree Form. The latest version states the following in bold:

“Has an investigation been completed in regards to this event/incident YES/NO

If yes, please complete all 7 parts on this form. If No, please ensure you complete an investigation prior to proceeding with this form.”

[369] The Just Culture Decision Tree completed by Mr Craig on 16 January 2019 was an old version of the form and did not contain the statement above at [368]. It is not evident how old the form Mr Craig used, or which version of the form. It is apparent to me that the additional words have been inserted to ensure that the Just Culture Decision Tree is completed at the conclusion of an investigation and not beforehand.

[370] The investigation into Mr Boyle’s conduct was not concluded on 16 January 2019. In fact, the Respondent considered it necessary to discover further information. Most importantly, given there was a disparity between the witnesses and Mr Boyle as to what was said by him on 2 November 2018, a letter was sent by Mr Prytherch on 5 February 2019 titled “Ongoing investigation into allegations about your conduct”. The letter stated that the investigation was ongoing and no findings had been made about the allegation.

[371] It is apparent that if Mr Prytherch had not made findings as of 5 February 2019, Mr Craig had. He had determined that Mr Boyle’s conduct was intentionally deviant. This had not, however, been put to Mr Boyle. Mr Boyle was not informed that the Just Culture Decision Tree had been completed by Mr Craig.

[372] Mr Boyle provided a further response on 6 February 2019. This response was utilised to assist the Respondent in making findings as to the words used by Mr Boyle on 2 November 2018. The Respondent decided to accept Mr Boyle’s account as to the words used by him, rather than the other, various accounts.

[373] Mr Prytherch reviewed Mr Craig’s completed Just Culture Decision Tree on 18 February 2019. I have no criticism of the date on which this occurred, given the investigation was, by this stage, finalised, and the Show Cause Letter issued the following day on 19 February 2019. I am, however, extremely critical of Mr Prytherch’s decision to adopt Mr Craig’s completed Just Culture Decision Tree and simply add a box of comments adverse to Mr Boyle.

[374] Mr Craig was not the ultimate decision maker; it was Mr Prytherch. Mr Craig’s completion of his version of the Just Culture Decision Tree was made prematurely, and in breach of the Fair Play Guidelines by having been completed before the investigation had been completed. I am satisfied that Mr Prytherch’s consideration of the matter was infected by Mr Craig’s premature and unfair views of Mr Boyle’s conduct. I consider that there was substantial unfairness and prejudice to Mr Boyle on account of this course of action.

[375] There is no factual evidence that Mr Prytherch took into account any of Mr Boyle’s written statements of 4 December 2018 and 6 February 2019, where he made appropriate concessions and apologies and expressed remorse. I find that Mr Prytherch did not turn his mind at all to Mr Boyle’s correspondence. Mr Prytherch allowed Mr Craig’s erroneous findings that Mr Boyle did not agree with the breach to stand.

[376] It was not ever submitted by BHP that the steps within the Fair Play Guidelines need not be followed on account of the conduct engaged in by Mr Boyle constituting serious misconduct as detailed in the Fair Play Guidelines at [22]. Throughout the proceedings, BHP has detailed Mr Boyle’s conduct as a serious breach of it policies, the Code of Conduct and its Charter Values. Nowhere in the Show Cause Letter or Termination Letter is it stated that he was dismissed for serious misconduct. Further, Mr Boyle was paid five weeks’ notice on termination, with the Termination Letter stating that he was being paid that in accordance with the enterprise agreement. The enterprise agreement provides that if an employee has been terminated for serious misconduct, there is no obligation to give notice or a make a payment in lieu of notice.

[377] Without the Respondent asserting that the dismissal was for serious misconduct, I consider it necessary for the Respondent to have followed the Fair Play Guidelines.

[378] It appears to me that there was a lack of procedural fairness afforded to Mr Boyle by the refusal to provide to Mr Boyle a copy of the completed Just Culture Decision Tree. He requested it and was not provided it. At the conclusion of the investigation, and when the Show Cause Letter was put to Mr Boyle, he ought to have been entitled to understand all of the matters in the minds of the decision-makers, not just what is put in the Show Cause Letter. There is no sound reason to keep the completed Just Culture Decision Tree from the affected employee. The employee ought to know the decision maker’s determination of the conduct. The decision maker ought to inform the relevant employee, in this case, that the decision maker is treating the conduct as intentionally deviant.

“With a head like that, it should ache”

[379] Mr Prytherch has stated that he did not have regard to the purported statement of “With a head like that, it should ache” and any reference that it might have been stated by Mr Boyle about Ms Barden. There is no written material to demonstrate that Mr Prytherch was informed of this issue prior to his decision to terminate Mr Boyle’s employment.

[380] It is clear, however, that Mr Craig and Mr Prytherch had conversations leading up to the decision to dismiss Mr Boyle. There is insufficient evidence before the Commission to made a determination that Mr Craig influenced Mr Prytherch relevant to this purported statement referencing Ms Barden.

[381] Having heard all of the evidence from the parties, and having regard to Mr Field-Akred’s contemporaneous notes, I am not satisfied that Mr Boyle made this statement relevant to Ms Barden. Mr Field-Akred did not note that it was made about Ms Barden, and I would expect that if had positively been said about Ms Barden, the notes would reflect it so. I consider that Mr Craig and Mr Field-Akred’s impression that it was made in reference to Ms Barden is incorrect, and not maliciously so; just simply incorrect.

Length of service

[382] Mr Boyle had approximately seven years’ service as a Mine Employee at the Mine. I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd. 131 His Honour determined at [140]:

“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”.

[383] While seven years’ service at Mr Boyle’s age is a reasonable period of time, it is noted that nearly four years of that period was on leave without pay, and accordingly his service is closer to approximately 3.5 years’ service which is not a considerable period of time.

Previous health concerns

[384] It was submitted that the Commission should, in considering whether the dismissal was harsh, unjust or unreasonable, have regard to Mr Boyle’s previous health concerns. Whilst it was not within the knowledge of the Respondent at the time of the dismissal, Mr Boyle has been able to successfully find alternative employment in a relatively short period since the dismissal. Accordingly, I place little weight on the submission that the Respondent ought to have had regard to his previous health concerns in its consideration of the disciplinary action it was prepared to undertake.

Money owed by Mr Boyle to the Respondent

[385] I am satisfied that Mr Craig had sufficient awareness of the substantial size of the overpayment made to Mr Boyle, and the preparedness of the Respondent to assist Mr Boyle to make repayments. I am not, however, satisfied that Mr Prytherch gave this issue appropriate consideration. There was no specific mention of the large debt owed in any of the correspondence exchanged between the parties, nor any express regard to it within the termination letter as being purposely considered.

Length of time to complete investigation and made decision

[386] Mr Boyle asserted during the investigation, and in the proceedings before the Commission that the length of the investigation adversely affected him. Whilst I accept that the investigation took a period of nearly four months until the decision to dismiss was made, I do not accept that Mr Boyle was prejudiced. Part of the reasons for the duration were of his doing, and some of the Respondent. He was receiving payment on account of being on paid suspension during this time. When all is said and done, the length of the investigation was of some benefit to Mr Boyle given the likely conclusion of dismissal, with Mr Boyle receiving payment without having to attend for work.

Vicarious liability

[387] There is no evidence before the Commission that prior to the dismissal the Respondent gave any meaningful thought to the potential for the Respondent to be held vicariously liable in the event of any of the employees in the vehicle on 2 November 2018 making a relevant claim. There is no evidence that any of the employees suffered any lost time injury, or that appropriate inquiries were made to Ms Barden or Ms Ramirez’s employer, Workpac.

[388] Whilst I accept that the Code of Conduct and Charter Values are appropriate policies in place at the workplace, and they should be enforced to ensure, as much as is possible that people are not affected by sexual harassment in the workplace, there is no evidence that the Respondent’s decision to dismiss Mr Boyle was on account of its well-considered view that it might be held vicariously liable for his conduct.

Stand down without pay

[389] Clause 3 of the enterprise agreement affords the Respondent the right to stand down an employee without pay in the event of misconduct. It is an unusual feature within an enterprise agreement, and I suspect that it has been agreed between the parties as an alternative to termination, and on account of the high remuneration received by employees to satisfy the Act’s better off overall test. It reads as follows:

“Stand Down

(a) The Company may stand down an Employee for:

(1) part or all of a shift in the following circumstances:

(A) Refusal of duty; or

(B) Neglect of duty; or

(C) Misconduct; or

(2) part or all of a shift or shifts if the Employee cannot be usefully employed in the Employee’s usual classification because of industrial action.

(b) In addition to the circumstances outlined above, where a disciplinary procedure provides for a suspension period as part of the range of penalties available, this sub-clause does not limit the Company's ability to stand down an Employee for the duration specified in the relevant disciplinary procedure.

(c) The Company may stand down an Employee during any period in which the Employee cannot usefully be employed because of one of the following circumstances:

(1) a break down of machinery or equipment that has lasted for more than four consecutive working days, if the Company cannot reasonably be held responsible for the break down; or

(2) a stoppage of work for any cause that has lasted for more than fourteen consecutive working days for which the Company cannot reasonably be held responsible.

(d) The Company will take all reasonable steps to minimise the need for standing down Employees under these circumstances, including where practical, carrying out training.

(e) The Company is not required to pay an Employee whilst they are stood down.”

[390] The Fair Play Guidelines nominate a period of up to 21 calendar days where an employee may be stood down without pay where the Respondent takes a Step 3 action.

[391] It was open to the Respondent to stand Mr Boyle down without pay for up to 21 calendar days. The Respondent witnesses stated that they gave this matter consideration but decided against it. It appears that the provision is rarely used, and in fact was first used at the Mine following Mr Boyle’s dismissal where other employees were involved in a near miss relevant to a safety incident.

[392] I find it surprising that the Respondent did not utilise the Step 3 procedure within the Fair Play Guidelines. The Step 3 procedure also allows for a final warning to be issued with the unpaid suspension. Relevant to the findings made by the Respondent as to Mr Boyle’s conduct on 2 and 30 November 2018, it might have sent an appropriate message that on account of telling a vulgar joke in the workplace, employees might expect to receive a final warning and an unpaid suspension of up to 21 calendar days.

Conclusion

[393] I have determined that the two reasons provided by the Respondent as the reasons for the dismissal are not valid reasons for the dismissal. Further, I have detailed my serious concerns relevant to the investigation and findings made by the Respondent, particularly what I consider to be a flawed and prejudicial application of the Fair Play Guidelines and completion of the two Just Culture Decision Trees.

[394] I do not accept that the decision maker made a holistic evaluation of Mr Boyle’s conduct and subsequent remorse over the incident, and did not afford to Mr Boyle a fair go all around. I find that Mr Craig’s prejudiced findings before the investigation was completed resulted in Mr Prytherch’s decision making being infected.

[395] I have also considered that there were alternatives to dismissal available to the Respondent. An appropriate course of action with the information before the Respondent might have been a final warning and an unpaid suspension in accordance with the enterprise agreement.

[396] However, the issue of Mr Boyle’s repetitious slur against Ms Barden and Ms Ramirez has weighed heavily on my decision in this matter. In an attempt to explain and downplay his conduct, Mr Boyle was, in my view, prepared to take Ms Barden and Ms Ramirez with him ‘under the bus’. He ought to have known that his repeated assertions against them would cause the investigation to be extended, allowing for further statements to be made. As I have stated above, the slur on the women that they were discussing sexual matters when they were not, is completely unfair. It is abhorrent that Mr Boyle would make such false assertions against the two women.

[397] If Mr Boyle had not been dismissed, and some other sanction had been imposed upon him such as an unpaid stand down, I have little doubt that he would still be asserting that the women had contributed to the conversation when I have found this not to be true. This would be unfair to the women involved, who have a right to now distance themselves from this unfortunate event, and not be forever remembered at the Mine as the women who were discussing ‘rooting’, resulting in Mr Boyle receiving a final warning and an unpaid stand down.

[398] Mr Boyle did not withdraw his assertions against the context of the discussions. I have determined that his assertions are not true.

[399] Accordingly, I find that Mr Boyle’s conduct breached BHP’s Code of Conduct, by engaging in a course of action throughout the investigation that would have the effect of being insulting, malicious and humiliating towards Ms Barden and Ms Ramirez. He did not treat them with respect, nor conduct himself with integrity, in spite of the Charter Values. Even without the Code of Conduct or Charter Values applying, I would find Mr Boyle’s conduct relevant to the false assertions to be reprehensible.

[400] I have also had appropriate regard to the sizeable debt owed by Mr Boyle to the Respondent and the financial difficulty the dismissal caused to Mr Boyle and his family, together with his other submissions relevant to his connection to the community.

[401] Having regard to all of the circumstances, the evidence and the submissions before me, I am satisfied that Mr Boyle’s termination was not disproportionate to the conduct engaged by him. I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair. The application is dismissed.

Other matters

[402] Given the factual context before me on post-employment alleged conduct, I wish to state that if it had been necessary to determine these issues in deciding an appropriate remedy for Mr Boyle, I would have found as follows:

•  Mr Boyle did state to Mr Craig over the telephone words to the effect, “You fucking cunts won’t let me get a job anywhere”; and

•  Mr Boyle did not harass Ms Ramirez near the ANZ ATM in Dysart and I consider that she has mistaken Mr Boyle for another person.

[403] For the sake of clarity, I have not had regard to the findings that I would make if it were necessary to do so. I made this very clear to the parties and to witnesses during the hearing that these issues canvassed in post-employment alleged conduct do not go towards the Commission’s consideration at s.387 of the Act, and would only be a necessary consideration if a remedy to an unfair dismissal was being considered. I considered it important to make the above statement to ensure that Mr Boyle was not unfairly portrayed as a person who has harassed Ms Ramirez in a public place.

COMMISSIONER

Appearances:

Anderson R, Construction, Forestry, Maritime, Mining and Energy Union, for the Applicant.
McLean J, BHP Legal Pty Ltd, for the Respondent.

Hearing details:

27 August 2019, Mackay.
28 August 2019, Mackay.
16 October 2019, Brisbane.

Final written submissions:

Closing submissions of the Applicant, 19 September 2019.
Closing submissions of the Respondent, 3 October 2019.
Closing submission of the Applicant in Reply, 11 October 2019.

Printed by authority of the Commonwealth Government Printer

<PR717094>

 1   PN3064.

 2   PN3283.

 3   PN3323.

 4   PN3345.

 5   Statement of Mr Kevin Boyle, 14 June 2019, Exhibit A1; Statement in reply of Mr Kevin Boyle, 6 August 2019, Exhibit A2.

 6   Transcript of proceedings, 27 August 2019, PN71 – PN116.

 7   PN484 – PN538; PN557 – PN558.

 8   PN587 – PN602.

 9   PN456 – PN464.

 10   PN560 – PN586.

 11   PN585 – PN586.

 12   PN631 – PN708.

 13   PN714 – PN735.

 14   PN21 – PN23.

 15   PN823 – PN827.

 16   PN762 – PN771.

 17   PN188 – PN191.

 18   PN209 – PN220

 19   PN169 – PN173.

 20   PN1048 – PN1080.

 21   PN1098 – PN1111.

 22   PN2069 – PN2077.

 23   PN2087 – PN2097.

 24   PN2087 – PN2144.

 25   PN2078 – PN2079.

 26   Statement of Mr Daryl Morris, undated, provided on 19 July 2019, Exhibit A3.

 27   PN995 – PN997.

 28   PN993 – PN994.

 29   PN982 – PN985.

 30   PN913.

 31   PN923 – PN924.

 32   PN921 – PN922.

 33   PN948 – PN952; PN974 – PN979.

 34   PN966 – PN972.

 35   PN929 – PN935.

 36   Statement of Ms Janet Barden, 25 July 2019, Exhibit R4.

 37   PN1495 – PN1499.

 38   PN1550 – PN1582.

 39   PN1507 – PN1512.

 40   PN1752 – PN1759.

 41   PN1520 – PN1521.

 42   PN1525 – PN1537.

 43   PN1693 – PN1694.

 44   PN1585 – PN1590.

 45   PN1793 – PN1810.

 46   PN1812 – PN1818.

 47   PN1594 – PN1649; PN1713 – PN1722.

 48   PN1650 – PN1654.

 49   PN1705 – PN1707.

 50   PN1741 – PN1748.

 51   PN1503 – PN1505.

 52   PN1708 – PN1712.

 53   PN1669 – PN1691.

 54   PN1730 – PN1737.

 55   PN1749 – PN1751.

 56   PN1538 – PN1541.

 57   PN1776.

 58   PN1760 – PN1764.

 59   PN1764 – PN1774.

 60   Statement of Ms Emma Ramirez, 24 July 2019, Exhibit R3.

 61   PN1243 – PN1245.

 62   PN1191.

 63   PN1234 – PN1242.

 64   PN1151 – PN1153; PN1261 – PN1265.

 65   PN1208.

 66   PN1212 – PN1219.

 67   PN1220 – PN1230.

 68   PN1177 – PN1186.

 69   Statement of Ms Emma Ramirez, 24 July 2019, Exhibit R3, Annexure ER-1.

 70   PN1248 – PN1256.

 71   PN1267 – PN1269.

 72   PN1270 – PN1294; PN1346 – PN1408; PN1456 – PN1457.

 73   Email between Workpac and BHP, Exhibit R6.

 74   PN1146 – PN1150; PN1163 – PN1173; PN1429 – PN1430.

 75   Statement of Mr Charlie Craig, 25 July 2019, Exhibit R7.

 76   PN2183 – PN2186.

 77   PN2169 – PN2178.

 78   PN2263.

 79   PN2281.

 80   PN2957.

 81   PN3120.

 82   PN2952.

 83   Statement of Mr Brad Prytherch, 25 July 2019, Exhibit R9.

 84   PN3316.

 85   PN3356.

 86   PN3398.

 87   PN3426 – PN3427.

 88   PN3447.

 89   PN3465.

 90   PN3490.

 91   PN3508.

 92   PN3679.

 93   PN3526.

 94   PN3616.

 95   Statement of Mr Kyle Harper, 24 July 2019, Exhibit R5.

 96   PN1893 – PN1902.

 97   PN1879 – PN1885; PN1916 – PN1918.

 98   PN1910 – PN1914.

 99   PN1952 – PN1958.

 100   PN1944 – PN1950; PN1982 – PN1992.

 101   PN1960 – PN1964.

 102   PN1976 – PN1980.

 103   PN1937 – PN1941.

 104   Statement of Mr Douglas Field-Akred, 24 July 2019, Exhibit R8.

 105   PN3236 – PN3239.

 106   PN3214 – PN3235.

 107   PN3242 – PN3249.

 108   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 109   Annetta v Ansett Australia Ltd (2000) 98 IR 233, [10].

 110   Edwards v Justice Giudice [1999] FCA 1836, [6] – [7]; King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [24].

 111   PN2515, PN2539 – PN2541.

 112   Macklin v BHP Coal Pty Ltd [2018] FWC 7429, [498].

 113   Ibid.

 114   [2007] NSWIRComm 33.

 115   Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186, 191 – 192.

 116   PN3526.

 117   PN276 – PN287.

 118   PN910; PN989 – PN990.

 119   PN1754 – PN1755.

 120   [2001] FMCA 6.

 121   PN831.

 122   Closing submissions of the Respondent, 3 October 2019, Paragraph [104(b)].

 123   [2001] FMCA 6 at [97]-[108].

 124   (1996) 142 ALR 681 per Moore J.

 125   Transcript of proceedings, 16 October 2019, PN183 – PN 184, PN205.

 126   16 October 2019, PN244 – PN 245.

 127   [2010] FWA 1822.

 128   [2019] FWC 7150.

 129   Transcript of proceedings, 16 October 2019, PN303 – PN327.

 130   [2014] FWCFB 7198.

 131   [2010] FWA 4342.