| [2020] FWC 4949 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Lear
v
BHP WAIO Pty Ltd
(U2020/5943)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 25 SEPTEMBER 2020 |
Application for an unfair dismissal remedy – whether valid ground for dismissal.
[1] This decision concerns an application made by Mr Anthony Lear under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. BHP WAIO Pty Ltd (the Respondent) dismissed Mr Lear on 12 April 2020. He had worked for the company as a Production Technician for some seven or more years. The primary reason for Mr Lear’s dismissal was said to be his conduct. On two separate occasions in March 2020 at the Yandi Mine in Western Australia, he defecated in an active work area. On the first occasion, Mr Lear defecated down an active drill hole and, on the second, on the collar of an active drill hole. This conduct occurred, said the Respondent, against a backdrop of unsatisfactory workplace behaviour – which when considered with the incidents, led the Respondent to dismiss Mr Lear.
[2] Mr Lear contended that there was manifestly no valid reason for the termination of his employment. Principally, because he could not have reasonably acted differently on either occasion, when he defecated on 9 and 27 March 2020. Mr Lear gave evidence concerning the lack of toilet facilities at the relevant drill patterns.
[3] Concerning the events of 9 March 2020, Mr Lear, referring to the urge to defecate, reportedly said to his co-worker that it was sudden - ‘it’s just hit me like a samboy chip’, he said, when giving evidence. Mr Lear said there was no wind that night, he covered the faeces up straight away, treating it like a long drop. He said he primed the drill hole and no one else was involved.
[4] The incident, on 27 March 2020, involved the onset of urgent and explosive diarrhoea. Mr Lear described being in pain and suddenly feeling very ill. It was ‘something else’, he said. Mr Lear reported that he knew he was not going to make it anywhere. All he could do was get some rags from the ‘MPU’. He spotted ‘Kirsty’, who he said was a good girl, so he wasn’t going there - to defecate. Therefore, he went towards the darkness – heading east towards ‘poor Mr Jack Hughes’. Mr Hughes was about two or three drill holes away, said Mr Lear. Mr Lear purports having said to Mr Hughes, ‘I’m about to shit myself… turn around turn around’. Mr Lear volunteered, ‘it was disgusting’.
[5] Mr Lear secured a new job some six weeks after having been dismissed. He therefore sought compensation by way of remedy, rather than reinstatement. However, having taken into account each of the matters specified in s 387 of the Fair Work Act 2009 (Cth) (the Act), I am satisfied that, based on his conduct, the Respondent had a valid reason for dismissing Mr Lear. Further, Mr Lear’s dismissal was neither unjust, unreasonable nor harsh. It follows that Mr Lear’s application is dismissed. My reasons for dismissing his application follow.
Background
[6] The parties provided an extensive account of the background to this matter. The following is an amalgam of the evidence provided – it is not exhaustive. However, all evidence has been considered.
Charter Values and Code of Conduct
[7] The Respondent gave evidence that its Charter was described as the ‘single most important document at BHP’. 1 The Charter includes five key values, including ‘Sustainability’, ‘Respect’ and ‘Integrity’. Each value is defined respectively as:
(a) Putting health and safety first, being environmentally responsible and supporting our communities (Sustainability).
(b) Embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial (Respect).
(c) Doing what is right and doing what we say we will do (Integrity).
Roll of Drill and Blast at the Mine
[8] The Drill and Blast Department at Yandi are responsible for conducting controlled explosions of surface rock and soil to enable that surface material to be more easily cleared away, and the underlying iron ore exposed.
[9] Once it is determined that mining will take place in a particular area (or ‘pattern’), the Drill Team will, over the course of two to four days, drill holes across the surface of that pattern. These holes are generally 12m deep, approximately 25cm in diameter, and spaced between 3m and 8m apart (depending on the material being blasted). The Drill Team may drill up to 400 drill holes on each pattern.
[10] Once the Drill Team have completed this work, the Blast Crew is responsible for loading explosives into each drill hole. It may take up to four or five shifts to load all drill holes in a pattern, as the process has a number of steps to it:
(a) first, all holes are ‘primed’ (meaning they are loaded with the explosive and a detonator. Once lowered into the ground, the detonator is connected to the surface by a ‘lead wire’ that runs back up the height of the drill hole);
(b) second, all holes are filled with product (the material lowered on top of the explosive and detonator to ensure the explosive stays down the drill hole);
(c) third, all holes are filled with stemming (whereby loose dirt is packed into the top of each drill hole to close the hole and contain the blast); and
(d) fourth, a ‘bell wire’ is run between each drill hole and connected to the protruding ‘lead wires’ (the ‘bell wire’ connects each detonator to a circuit, and is the mechanism through which the sequencing of blasts is controlled. The ‘bell wire’ is connected to each ‘lead wire’ by hand during a process referred to as ‘stringing in’).
[11] Each Blast Crew is said to comprise of six members, overseen by a Shotfirer. The Shotfirer is the individual charged with responsibility for the explosives on a particular shift, as well as for delegating the completion of the abovementioned tasks to other members of the Blast Crew.
Bathroom facilities
[12] Witnesses for the Respondent provided consistent accounts that when accessing bathroom facilities, the arrangement is, and had always been, that the team member uses an available light vehicle to access the nearest bathroom facility.
[13] Bathroom facilities were said to be distributed across the Yandi Mine, and as a general rule the facilities were spaced at no more than 5-6 minute intervals.
[14] Regarding the incident on 9 March 2020 the bathroom facilities were said to be approximately five minutes away and for the incident on 27 March 2020, eight minutes away. Mr Lear gave evidence that sometimes timing was dependent on traffic or trucks.
[15] The Respondent provided evidence that it does not facilitate training on what to do at remote sites or settings where no toilets are provided on the site. However, the evidence led by the Respondent was such that workers do not defecate on the blast pattern, and the practice first and foremast was to utilise the designated bathroom facilities. If unable to utilise those facilities, then one moves off the blast pattern away onto surrounding land. While Mr Hughes, a Production Technician, gave evidence that people urinate on or off the shot all the time, this practice was not, contended the Respondent, analogous to defecating.
Witnesses
[16] Mr Lear gave evidence, in addition to his other witnesses:
(a) Mr Heath Thompson, former Technical Engineer with the Respondent; and
(b) Mr Terry Townley, former Supervisor with the Respondent.
[17] Witnesses for the Respondent included:
(a) Mr Jack Hughes, Production Technician at Yandi Mine;
(b) Mr Joel Garner, Shotfirer at Yandi Mine;
(c) Mr Joel Silbert, Specialist in Occupational Medicine; and
(d) Mr Lear’s Supervisor - Drill and Blast.
Incident of 9 March 2020
[18] Mr Garner was working the night shift on 9 March 2020. 2 Midway through the shift, said Mr Garner, the crew took their 30 minute meal break and left Mr Lear behind to supervise the drill pattern.3 Later in the shift, after he had returned from his meal break, he was walking around the pattern with Mr Lear when Mr Lear threw a rock down a drill hole.4 Mr Garner said that the rock made the unmistakeable sound of hitting a ‘gas bag’ (a gas bag being a bag with an expanding air cylinder placed inside a drill hole to fill any cavities in that hole).5
[19] Mr Garner said that he asked Mr Lear why there was a gas bag down the hole and Mr Lear replied, ‘I took a shit down the hole’. 6 Mr Garner said he asked Mr Lear why he would do that and Mr Lear said to him that it was all good as it was covered with the gas bag.7 Mr Garner gave evidence that he asked about the sides of the drill hole, noting that unless it was a straight drop, it would hit the sides. To which, Mr Lear is reported to have said, ‘Oh well, as long as I don’t have to load it, all good’.8
[20] Mr Garner said that on 95% of shifts, he is the one that is left behind to supervise the drill pattern whilst the rest of the crew goes for their meal break (because he is a Shotfirer). However, he had not once, in the hundreds of occasions he had been left to supervise the drill pattern, defecated at the site. 9 Mr Garner expressed the view that if Mr Lear had in fact no option, he should have at least moved off the work pattern and gone at a windrow or in a patch of vacant land – which would have been far better than Mr Lear going in an area where the crew were still working and down a hole which crew still needed to attend.10 Mr Garner said that he did not see any rags marking the hole down which Mr Lear defecated.11
[21] Mr Lear provides a different account to that of Mr Garner. He said that while working on ‘W3’ the others went on break. 12 He found that he needed to go to the toilet and could not wait.13 Mr Lear said that he moved to another sink hole (not where the crew was working at the time – about 100 metres away) and quickly went to the toilet.14 He said, thereafter, he covered the site with a large amount of clean soil.15
[22] In his supplementary witness statement, Mr Lear said that he showed Mr Garner the exact location where he defecated. 16 He explained that he did this by marking the collar with rags, so he could easily locate it.17 Mr Lear stated that he put soil and a gas bag down the hole above the matter, to eliminate all possible avenues of people coming into contact with any of the matter.18 He denied saying ‘[O]h well, as long as I don’t have to load it, all good’, and did not make light of the incident.19
[23] The Supervisor interviewed a Mr Nathan Davis during his enquiries into the two incidents. Mr Davis was not called to give evidence. However, tendered into evidence was a file note which appeared to have transcribed answers Mr Davis had provided in response to questions asked. The file note read, ‘[P]robably 23:00 from memory, Anthony Lear approached me, said he couldn’t wait to go to the toilet and has taken a No.2 down a blasthole towards the end of the pattern and had put a gas bag down the hole, to cover it’. The file note traverses that Mr Davis responded along the lines of ‘disgusting, and he should have at least gone outside the pattern, where no one is working’. 20
[24] There are several accounts, including that of Mr Lear himself, that refer to a gas bag having been deposited down the drill hole. Yet, when giving oral evidence, Mr Lear appeared to change his story about the gas bag – denying its placement. When this was brought to his attention, he noted that he was unsure and that he didn’t believe he did (referring to the placement of the gas bag). Not long after having said that, Mr Lear acknowledged he had made a mistake and stated, ‘I own that’.
Incident of 27 March
[25] On 27 March 2020, Mr Hughes was rostered to work the night shift with Mr Lear. 21 He said that not long after starting the shift (perhaps around 8pm), he was filling out a pre-start book for a lighting plant when he saw Mr Lear some 30m to 40m away from him.22 At hearing, Mr Hughes stated that when Mr Lear saw him, it appeared to him that Mr Lear deliberately walked toward him. Mr Lear purportedly said to him that he ‘needed to take a shit’.23 Mr Hughes gave evidence that Mr Lear was holding a bundle of loose rags in both his hands.
[26] Mr Hughes stated that he replied ‘ok’ in response to Mr Lear. He expected, he said, that Mr Lear was going to get into his vehicle and drive to the nearest bathroom facility. 24 Mr Hughes said that he continued with his work.25 However, shortly after, he detected a bad smell, and turned to seek Mr Lear squatting on a blast collar some 4-6m away from him, defecating on the ground.26 Mr Hughes said that the following exchange took place:
Mr Hughes: What are you doing? Why are you shitting on a collar?
Mr Lear: I couldn’t hold it.
Mr Hughes: The windrow is not that far away mate! 27
[27] According to Mr Hughes, Mr Lear did not appear to be in a rush or panic before defecating in the work area. He had casually walked some 30m in the direction of Mr Hughes to let Mr Hughes know that he was going to ‘do a shit’. 28 Mr Hughes formed the view that Mr Lear’s conduct was disgusting.29 Mr Hughes said that he had never heard of anyone else defecating in a work area at Yandi.30 The practice when members of the Drill and Blast crew needed to defecate was, and always had been, to drive to the nearest toilet.31 Mr Hughes gave evidence that the nearest bathroom from where they were working would have been no more than 5-6 minutes away.
[28] Mr Lear gave evidence that on 27 March 2020, at approximately 8pm, he was working onsite when he realised that he needed urgently to go to the toilet. 32 He said that he rushed to the truck to get some rags and realised that he was not going to make it very far.33 Mr Lear said that he ran as far as he could to get out of the bright lights (illuminating the shot pattern) and tried to make it into the darkness. He said that he ‘had just run past Jack Hughes – a supervisor – who was maybe 15 metres away (in the light)’.34 Mr Lear also gave evidence that he ran in the direction of Mr Hughes as there was a female worker in the other direction.
[29] Whilst not included in his witness statement, Mr Lear gave evidence that he said to Mr Hughes, ‘I feel bad, I feel crap, I’m going to shit myself’. Mr Lear reports that Mr Hughes replied ‘just shit your pants’. Mr Lear said that he was two or three drill holes away and he said to Mr Hughes words such as ‘I am about to shit myself’ and ‘turn around’. 35
[30] Mr Lear noted that he and Mr Hughes did not get on. Mr Lear’s evidence went so far as to suggest that Mr Hughes would have submitted a complaint about him and the incident. This, said Mr Lear, was because he had put in a complaint about Mr Hughes’ mate, who, said Mr Lear, was clearly coming down on site from amphetamine use. There was no evidence adduced to support the contentions made.
[31] Mr Hughes gave evidence that he never said to Mr Lear - ‘shit your pants’. Mr Hughes said that this statement was a blatant lie. With respect to covering over the faecal matter, Mr Hughes said Mr Lear never asked him to cover it up with the stemming loader. Mr Hughes gave evidence that he did not report the incident to management as he did not want anyone to lose their job.
[32] When Mr Lear was informed at hearing that Mr Hughes had not reported the incident, he acknowledged the information, and thereafter continued to press that Mr Hughes was very influential and would have spoken to one of the guys to organise it. Presumedly, he meant reporting, when referring to organise ‘it’. Mr Lear then proceeded to cast aspersions about Mr Hughes’ conduct and illicit drug taking. Again, there was no evidence adduced to support the contentions.
[33] Mr Garner was also working on the night shift on 27 March 2020. 36 He gave evidence that he was operating the stemming loader, and earlier in the shift Mr Lear approached him and asked him to put some stemming on a hole.37 Mr Garner said that he asked Mr Lear why, and was informed that it was because Mr Lear ‘took a shit on it’.38
[34] Mr Garner said that he collected some stemming and Mr Lear directed him to where he had defecated. 39 Mr Garner said that it was right next to a lighting plant and was on the collar of the drill hole, no more than half a meter from the hole opening and right where a member of the Blast Crew would stand when working on that hole.40 Mr Garner said that after telling Mr Lear that he thought him a grub, he put a meter high pile of stemming on the top of the collar so that no one would go near it.41
[35] Mr Lear said that he asked Mr Hughes to stem around the drill hole, where he had defecated, but Mr Hughes refused to use the loader to do so.
General – performance and conduct issues
[36] While the Respondent did not rely upon Mr Lear’s performance as a basis for his dismissal, in the circumstances, it is relevant to traverse Mr Lear’s placement on a performance improvement plan (PIP) in early 2020.
[37] On arriving at Yandi Mine, Mr Lear said he was stripped of his Shotfirer title. He said over an 18 month period, he had watched numerous people come from contractors to fill appointed Shotfirer positions instead of him. 42 Mr Lear stated, that at this stage, he lost total faith in the Respondent’s management within Drill and Blast – which is why he applied to transfer elsewhere.43 Mr Lear said his shot firing ticket was expiring in October and he needed three blasts to retain his ticket. 44 He stated that his Supervisor said that by going on the PIP, it would guarantee him getting his ticket, if he followed the rules.45 Mr Lear said that he agreed to the PIP because prior to arriving at Yandi Mine, he was an appointed Shotfirer at Eastern Ridge.
[38] Mr Lear explained further, that he had said to his Supervisor that he would do anything required of him to be appointed as a Shotfirer. 46 His Supervisor purportedly informed him that the only way to achieve this was to go on a PIP for six months. Mr Lear said that the PIP was a developmental measure to achieve promotion, as there were no performance issues or incidents that led to him being on a PIP.47
[39] Mr Lear gave evidence he was told by his Supervisor that the PIP was a template, a lot of the content did not apply to him, and he was to sign it. 48
[40] Mr Lear’s Supervisor gave a very different account regarding the impetus for the PIP. It appeared that throughout 2020, Mr Lear had become increasingly vocal in his criticisms of the Mine’s operations and his desire to be relocated to BHP’s Port Hedland site. 49 His Supervisor had facilitated a seven day visit to the Port Hedland site (paid but not required to perform work). However, according to his Supervisor, Mr Lear continued to ‘bag’ the Mine in front of others.50 Mr Lear’s Supervisor gave evidence that in February 2020, Mr Lear approached him, in front of a number of trainees, and said words to the effect, ‘[my] development plan isn’t worth the paper it’s written on, I wouldn’t even wipe my arse with it’.51
[41] The Supervisor stated that following this, he decided to place Mr Lear on a PIP. 52 He chose the PIP over a disciplinary process in the hope of bringing about a positive change in Mr Lear’s behaviour and attitude.53 The Supervisor stated that any suggestion that Mr Lear had initiated the PIP, was ridiculous.54
[42] Evidence was given that Mr Lear was provided with a letter on 3 March 2020 that confirmed the PIP arrangements. 55 Mr Lear denied having received the letter. The letter that was tendered into evidence was dated 23 July 2020, which was after Mr Lear was dismissed and was one day prior to the signature date on the Supervisor’s witness statement.
[43] Mr Lear gave evidence that it was one hundred percent correct that he had been generally negative about the operations at Yandi and had disparaged the mine systems in front of trainees. When questioned about the comment regarding that he ‘wouldn’t wipe his arse on his development plan’, Mr Lear replied to the effect, it was ‘honest’. When it was suggested that this was disrespectful, Mr Lear contended that it was disrespectful how other people were treated at the location, including him.
[44] Reference was made to two formal warnings that Mr Lear had received in 2015, in addition to four separate coaching notes to address perceived shortcomings. Mr Lear’s Supervisor observed that Mr Lear had received two recognition awards whilst employed (Mr Lear asserts there were more).
Workplace enquiry
[45] Mr Lear’s Supervisor gave evidence that on 29 March 2020, a trainee, a Mr Drew Dunstan, approached him and told him that Mr Lear had defecated near the collar of a drill hole, on 27 March 2020, on night shift. 56 Mr Dunstan informed the Supervisor to speak to Mr Davis, if he wanted to know more.57 Mr Lear’s Supervisor gave evidence that he had met with Mr Lear the day prior, and Mr Lear had made no mention of the incident.58
[46] On 30 March 2020, the Supervisor interviewed Mr Davis, who confirmed that he had heard discussion about Mr Lear defecating on the pattern, on 27 March 2020, and suggested that Mr Jack Hughes may have been present and may be able to provide further information. 59 Mr Davis was also said to have informed the Supervisor that Mr Lear had separately claimed to have also defecated down a drill hole on 9 March 2020.60 Mr Davis purportedly informed the Supervisor that when Mr Lear had told him what he had done, Mr Davis responded with words to the effect that it was ‘disgusting and he should have at least [have] gone outside the pattern where no one is working’. The Supervisor attached a file note of the discussion held with Mr Davis to his witness statement.
[47] The Supervisor said that he intended to speak to Mr Lear that day (30 March 2020), but Mr Lear had reported himself as unwell and so he decided not to speak to him. 61 Mr Lear departed site on 31 March 2020. The Supervisor proceeded to interview Mr Garner and Mr Hughes on 31 March 2020.
[48] On 9 April 2020, Mr Lear returned to site for his next rostered shift. The Supervisor said that he contacted Mr Lear and asked him to attend a meeting that afternoon with him and Mr Tony Rudd, another supervisor. The Supervisor said that he invited Mr Lear to bring a support person, but Mr Lear said he did not require one. 62
[49] Mr Lear was asked a series of questions at the meeting about the incident on 27 March 2020. After discussing those events, Mr Lear’s Supervisor asked Mr Lear whether ‘this’ (presumedly meaning defecating on an active work site) had occurred in the past, to which Mr Lear responded, ‘no’. 63 The Supervisor said that the following was said:
Supervisor: Can you recall a colleague having a discussion with you about you previously defecating on the pattern?
Mr Lear: Before? No, not off the top of my head.
Supervisor: So you’ve never told Nathan Davis you defecated down a drill hole?
Mr Lear: Oh, yes, sorry I forgot about W3. 64
[50] The Supervisor said, following the meeting, he decided Mr Lear should be ‘stood aside’ while the Respondent gave further consideration to Mr Lear’s conduct. 65 The Supervisor stated that later in the afternoon of 9 April 2020, he presented Mr Lear with a letter advising he would be stood aside on full pay pending an investigation into allegations that he had defecated in an active work area.66 The Supervisor acknowledged that the reference to an incident that occurred on 27 April in the letter, should have refereed to an incident of 27 March 2020.
[51] The Supervisor stated he met with Mr Hughes again and asked him further questions in light of Mr Lear’s claim that he had been unwell on 27 March 2020. 67
[52] Having considered all the information available to him, the Supervisor said he formed the view that Mr Lear should be asked to show cause why his employment should not be terminated. On 11 April 2020, he called Mr Lear and asked him to attend a meeting on the following day to discuss the outcome of the Respondent’s enquiries and implications for his employment. 68 A support person was again offered.
[53] On 12 April 2020, the Supervisor said that he met with Mr Lear, with Mr Rudd present. He read from a document he had prepared in advance, and covered:
(a) …the Company had completed its investigation and found:
i. on 9 March 2020 at approximately 11pm, Mr Lear defecated down a drill hole in an active work area – one that Blast Crew members were still required to work near; and
ii. on 27 March 2020, at approximately 8pm, Mr Lear had been seen by a fellow employee defecating near a drill hole in an active work area – again, in an area that Blast Crew were still required to work near. 69
[54] The Supervisor said that he made it clear to Mr Lear that his conduct was inconsistent with the Charter, it was particularly concerning in a climate of Covid-19, and throughout the investigation he had failed to demonstrate accountability for his actions or an appreciation for the potentially serious consequences of his conduct. Mr Lear was informed that the Respondent was considering terminating his employment and he would be provided with an opportunity to provide any further information.
[55] Mr Lear had provided a written response that addressed both the incident on 9 March 2020 and that of 27 March 2020. He expressed remorse in the written response and was apologetic. Mr Lear noted that the Respondent had not provided toilets on the shot and the closest toilet was roughly 8 minutes away by vehicle. However, even if in a vehicle, said Mr Lear, he would have had to pull over.
[56] The Supervisor was quite adamant when providing his oral evidence that Mr Lear had demonstrated no remorse. This was contrary to the evidence of Mr Lear, and the Supervisor had been provided with Mr Lear’s written response. The Supervisor was asked by the Representative of Mr Lear, to read out parts of Mr Lear’s written response at hearing. It was evident that the Supervisor had some difficulties reading aspects of the written response. His evidence, however, was that Mr Lear had expressed, with regard to defecating, that ‘he would do it in the town hall if he had to…’.
Termination of employment
[57] Mr Lear was provided with a letter of 12 April 2020, notifying him of his termination of employment with four weeks’ pay in lieu of notice (the Letter). The Supervisor said that he prepared the Letter based upon a template. The Letter spoke of the 9 March 2020 incident, citing:
Breach of Sustainability, Integrity and Respect – 9 March at approximately 11:00pm, you approached a work colleague, and told him that you could not wait to go to the toilet, and you defecated down a drill hole. Again, it was identified that it was an active work area on the drill pattern, near where personnel were still required to work.
[58] The Supervisor explained that this paragraph of the Letter did not mean that someone had seen Mr Lear defecate, but rather Mr Lear had informed someone at around 11pm he had defecated down a drill hole. Mr Lear interpreted the paragraph to mean that someone had seen him or interacted with him prior to defecating, or during defecation.
The evidence of Mr Thompson and Mr Townley
[59] Mr Thomson was a former employee of the Respondent, having been dismissed for breaching safety obligations – namely, speeding in a light vehicle. He had previously brought a claim against the Respondent, having considered that he was unfairly dismissed. That claim was later discontinued.
[60] Mr Thompson gave evidence that he was aware of plenty of workers who had done what Mr Lear had done and no disciplinary action had ever been taken. 70 He said that he has seen both workers and supervisors doing the same thing, and that it had happened to every Blast member on the site.71 Mr Thompson reported having had to do a poo on the shot due to uncontrolled bowel movements, and having reported it to Mr Rudd; there was no consequence, said Mr Thompson – save some laughing.72
[61] Mr Townley provided evidence that the same situation which had occurred with Mr Lear had happened to other workers, and he had never known it to be a disciplinary situation resulting in dismissal. 73
Evidential matters
[62] Regrettably, I have little confidence that the evidence of Mr Lear was always truthful.
[63] First, Mr Lear gave evidence he had approached his Supervisor about how he could be promoted to the level of Shotfirer (a position previously held). Mr Lear said he was told the only way to achieve this was to go on a PIP for six months. Mr Lear’s account was that his Supervisor had said that by going on the PIP, BHP had promised to appoint him (presumedly to the position of Shotfirer).
[64] However, the Supervisor gave a very different account as to why the PIP was established. The Supervisor said that it was implemented in response to Mr Lear’s attitudinal or behavioural issues – the example provided was disparaging the Respondent in front of trainees (which Mr Lear conceded he did do). Further, the Respondent submitted that it was the Supervisor that had initiated the PIP process, not Mr Lear.
[65] Although the Supervisor conceded he had informed Mr Lear that if he succeeded on the PIP, he would be put forward as a Shotfirer; Mr Lear’s characterisation of the PIP as a developmental measure to achieve a promotion is a falsehood. Mr Lear gave oral testimony that having been presented with the PIP he went onto SEEK that same night. The next day he applied for a role with Maca Mining because he knew what was coming up, he said. If it were the case that the PIP was a measure to achieve promotion, as Mr Lear purports, it seems highly irregular for Mr Lear to have ascertained he must look for a new job that night and apply for one the next day. It was patently obvious that Mr Lear had sought to downplay the reason why the PIP was introduced – namely, to address his poor behaviour. To characterise the PIP in the manner that he did, and to suggest it was implemented as a development measure, was entirely disingenuous.
[66] Mr Lear provided inconsistent evidence about having dropped a gas bag into the drill hole on 9 March 2020. While his witness statement refers to this having occurred, at hearing he initially denied it until reference was made to his own witness statement. Mr Davis purports having been told by Mr Lear that he put a gas bag down the hole to cover it, and Mr Garner similarly gave evidence that having heard a bang and having questioned Mr Lear about it, Mr Lear admitted him that he had defecated down a drill hole and covered it with a gas bag.
[67] Mr Lear purports having been embarrassed about the incident on 9 March 2020. Perhaps understandably, he informed Mr Garner about the events when put on the spot about the sound made when the rock was kicked into the drill hole. But it is difficult to comprehend why Mr Lear would subsequently divulge that information to Mr Davis – when there appeared to be no need. Mr Davis was not his supervisor – and there seems to have been no reason to have shared the information. To say one is embarrassed about an incident, only then to share information about that incident with another voluntarily, seems at odds with the embarrassment and disgust Mr Lear expressed at hearing. It is open to find that he drew attention to the first incident, rather than seeking to limit the details of the same, to those he was obliged to inform.
[68] Whilst giving his evidence, Mr Lear made several attempts to portray Mr Garner and Mr Hughes as his Supervisors. The evidence simply did not support such a contention and it was abundantly clear that they were not Supervisors appointed by the Respondent. However, Mr Lear’s fixity on the point served only to highlight that the contention was most self-serving – as he sought to establish, he had complied with process or procedures by reporting the incidents of 9 March and 27 March 2020 to Supervisors on both occasions.
[69] For these reasons, except where I indicate otherwise, where Mr Lear’s evidence conflicted with Mr Garner’s account, the Supervisor’s, or Mr Hughes’, their evidence is to be preferred.
[70] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Lear’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2) of the Act. Second, Mr Lear was a person protected from unfair dismissal, as he earned less than the high income threshold (s 382). Third, Mr Lear’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arises.
Unfair dismissal
[71] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (per s 385(b)).
[72] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 74
[73] In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. It is convenient to use those criteria set out in s 387, to outline my consideration of the matter. However, before doing so I note that s 387 contemplates the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
[74] While the Commission is obliged to take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct, 75 this provision should not be construed as requiring there to be a valid reason. Although, whether there is a valid reason or not will have bearing on the decision reached.
[75] To explain further, ‘valid’ in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. 76 The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.77
[76] In the context of termination of employment related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice, 78 and numerous subsequent decisions of the Full Bench of the Commission.79
[77] It is not in dispute that Mr Lear defecated down an active drill hole on 9 March 2020 and defecated on the collar of an active drill hole on 27 March 2020. However, Mr Lear has argued that he could not have reasonably acted differently on either 9 March 2020 or 27 March 2020.
[78] Turning to 9 March 2020, I am unable to agree that Mr Lear could not have reasonably acted differently. While Mr Lear spoke of an urgency to defecate, the scenario he recounted was not akin to that which he faced on 27 March 2020 – where he was faced with explosive diarrhoea. I accept that the usual practice was to utilise the toilet facilities that were located in the vicinity of the drill pattern. Those same facilities were only some five to eight minutes away. It was, however, the case that Mr Lear was by himself and unable to leave the active pattern whilst others were on break. Yet, it is difficult to comprehend that Mr Lear was unable to await their return prior to defecating.
[79] However, Mr Lear purports that the urge to defecate came upon him quite suddenly. However, he speaks of moving to another sink hole and notes that this particular sink hole (drill hole) was some 100 plus metres away, with the location of the explosives still within his sight. The evidence of the Respondents’ witnesses is that Mr Lear should have defecated away from the active work area or off the blast pattern away onto surrounding land. Mr Townley gave evidence that the usual practice is to move away, as far away from the work area as is practicable.
[80] Mr Garner expressed the view that if Mr Lear had in fact no option, he should have at least moved off the work pattern and gone at a windrow or in a patch of vacant land – which would have been far better than Mr Lear going in an area where the crew were still working and down a hole which the crew still needed to attend. 80 I agree.
[81] Mr Lear sought to draw attention to a training deficiency, noting he had not received training on where to defecate when an urge overtakes oneself and the bathroom facilities cannot be readily accessed. First, I am unpersuaded that the Respondent was obliged to provide, or otherwise should have provided, such training. I consider it self-explanatory that defecating in an area where people are working is completely unacceptable and demonstrates a lack of respect for both co-workers and the Respondent company.
[82] In my view, Mr Lear’s behaviour was inexcusable. There were standard practices to be adopted when defecating, which he did not do. All that was required was for him to move off the work pattern to an area of vacant land. Further, the account provided by Mr Garner was compelling. While Mr Lear ran an argument that he had done the right thing by reporting the incident to a Supervisor, he had not. Mr Garner was not a Supervisor and I consider the Respondent’s contention, that Mr Lear only revealed the incident after having to provide an explanation for the ‘bang’, holds merit.
[83] The circumstances regarding 27 March 2020 are somewhat different. Mr Lear says he was overcome by sudden pain and an onset of extreme diarrhoea. The evidence of Mr Lear and Mr Hughes was similar in that he defecated the other side of lighting – so that he was in the dark. While Mr Hughes appeared to be suggesting that Mr Lear intentionally walked toward him to thereafter defecate, in the circumstances, I consider that Mr Lear’s choice to defecate in the darkness was plausible. Further, I note that Mr Hughes recalled that Mr Lear stated, ‘I couldn’t hold it’, when asked why he was ‘shitting on a collar’. I agree with Mr Hughes that it would have been preferable for Mr Lear to have defecated in an area some 40m away, that was covered with windrows, rather than in the middle of an active work area. However, I am content to find that such defecation in that particular location was unavoidable.
[84] There are, however, aspects of the incident on 27 March 2020 which are troubling. Mr Lear states that Mr Hughes told him to ‘just shit his pants’. Having heard the evidence of the two, I am not satisfied that occurred, and I am unpersuaded that Mr Lear asked Mr Hughes to cover his faecal matter or arrange for it to be covered. Mr Lear made regrettable assertions about Mr Hughes’ character, which were unfounded by any evidence. Further, Mr Lear appeared convinced that Mr Hughes was implicated in the reporting of the incidents to the Supervisor. Again, there was no evidence advanced to show that this was the case. Mr Lear’s remarks about Mr Hughes were, in my view, a self-serving and unsophisticated attempt to discredit Mr Hughes, yet in the process the only person Mr Lear did a disservice to was himself.
[85] Another argument pressed was that people urinate on or off the shot all the time, and therefore, it followed (presumedly), there was no difference between urinating and defecating. I am reluctant to explore such an argument because Mr Lear did not urinate, he defecated – not once, but twice, in the space of a month. Without stating the obvious, the two acts differ. One involves, as Dr Silbert kindly informed, the excretion of a sterile substance (urine), and the other, the excretion of a bacteria laden substance which is usually malodorous. Mr Lear characterised both incidents as disgusting, Mr Hughes referred to the incident on 27 March 2020 as disgusting, and Mr Garner referred to Mr Lear’s conduct on 9 March 2020, as grubby. Had urine been involved – the descriptions used likely would have differed. But I consider little turns on this point, and the comments made are observations only. While some may urinate in the active work area all the time, it does not render the conduct acceptable by the Respondent, nor does it in turn give rise to acceptance of this as a practice as mandating a similar practice for defecation.
[86] The Respondent attributed to Mr Lear the making of several comments that were disparaging of the Respondent and were said with trainees in earshot. Mr Lear admitted to the same, noting it was an honest statement to say that he ‘wouldn’t wipe my arse with my development plan’. Mr Lear submitted that it was disrespectful, but how he and other people were treated at the location was similarly disrespectful.
[87] I am of the view that Mr Lear harboured a palpable lack of respect for the Respondent. So much was evident from the incident of 7 March 2020, his comments said to his Supervisor in front of the trainees, and his response to his Supervisor when questioned about whether he had ever defecated before on site (in circumstances where he had been questioned about 27 March 2020). Mr Lear responded ‘No’, until he was reminded about having spoken to Mr Davis about defecating down a drill hole. Only then did he reference the incident.
[88] Mr Lear was placed upon a PIP because of his attitudinal issues – not for any other reason.
[89] Mr Lear’s conduct constituted a breach of his obligation to act with respect and integrity. He did not do what was right, was not forthcoming in his interview on 9 April 2020 about the incident on 9 March 2020 and made comments about the Respondent to his Supervisor in front of trainees, which demonstrated clearly the breakdown of trust. In short, Mr Lear’s attitude towards the Respondent was poor and unacceptable.
[90] The Supervisor expressed that in the preliminary interview with Mr Lear on 9 April 2020, Mr Lear had a dismissive attitude to the Respondent’s concerns, and maintained an attitude that there was nothing problematic with his defecating on a work pattern and that he would do the same thing again in the circumstances. The evidence was compelling, and believable.
[91] There was a valid reason for Mr Lear’s dismissal – which of course is a very important consideration in any unfair dismissal case. 81 However, it is not the only factor that must be considered by this Commission.
[92] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made, 82 and in explicit,83 plain and clear terms. It is accepted that this is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.84
[93] It is an indubitable fact that Mr Lear received a ‘Stand Aside Notification’ on 9 April 2020. That ‘Notification’ clearly references the wrong date of the second incident. Instead of reading 27 March 2020, it refers to 27 April 2020. Further, the first paragraph of the ‘Notification’ is poorly drafted. However, it can be discerned that the Respondent is investigating the incident regarding the defecation on the drill hole collar, and the letter refers to another incident of defecation identified in the preliminary investigation/interview with Mr Lear.
[94] There was an argument advanced that the Respondent had not provided Mr Lear with the allegation concerning 9 March 2020, in writing. The Act does not stipulate such requirement and, as it is, the ‘Notification’ refers to such an incident. In Mr Lear’s written response to the Notification, which he prepared prior to the meeting on 12 April 2020, Mr Lear referred to both incidents (9 March 2020 and 27 March 2020). Evidently, Mr Lear was aware of the two allegations.
[95] Before any decision was made to dismiss Mr Lear, he was clearly informed at the ‘Show Cause’ meeting of the Respondent’s findings concerning 27 March 2020 and 9 March 2020 and was again provided with the opportunity to respond to the same.
[96] Mr Lear contended that his dismissal had been pre-determined before he had provided a response, because the time-frame to produce the Letter was short, when one considered the travel the Supervisor had to embark upon, in addition to the length of the Letter. Therefore, according to Mr Lear, the Letter had to have been prepared for the meeting on 12 April 2020, and it followed that the decision to dismiss had already been made.
[97] The Supervisor gave evidence that a template document had been utilised and he had simply completed the missing parts, after the first meeting on 12 April 2020. Given the standard of drafting concerning the second allegation and the confusion that was caused because of the sequencing in that paragraph, the Supervisor’s explanation is most plausible.
[98] I am satisfied that Mr Lear was afforded the opportunity to provide a response to the allegations prior to a decision about his employment being made. He did so both in writing and verbally. He was not denied procedural fairness.
[99] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
[100] Mr Lear declined to have a support person present on 9 April 2020 and 12 April 2020. The factor is a neutral one.
[101] I am satisfied that the dismissal was not related to unsatisfactory performance. The allegations Mr Lear faced sat squarely under the remit of misconduct, not unsatisfactory work performance. As such, prior warnings about performance are irrelevant.
[102] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[103] The Respondent has internal capability to deal with industrial and human resource issues. Its size and internal capability provide no basis for the employer to provide anything other than substantive procedural fairness to its employees. In the circumstances of this case, I am of the view that Mr Lear was provided with procedural fairness. However, I speak further of this issue at paragraphs [105] to [113].
[104] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission is obliged to take into account any other matters that it considers relevant.
[105] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation 85 the Full Bench stated that:
That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable. 86
[106] The Representative for Mr Lear sought to impugn the integrity of the Respondent’s investigation. The Representative contended that one could not overlook the gaping holes in the investigation process that had been followed. There were, said the Representative, significant and fundamental errors made by the Respondent. Namely, the failure to detail the 9 March 2020 incident in the ‘Notification’, and the errors in the Letter which included incorrect details regarding one of the two incidents, for which Mr Lear’s employment was being terminated.
[107] It was contended that the details about the incident on 9 March 2020 had, in every way, been incorrectly reported in the Letter. The Representative advanced that Mr Lear’s evidence was that he was entirely alone when he defecated, but the Letter referred to Mr Lear approaching a colleague, telling him he could not wait to go to the toilet, and then having defecated down a drill hole. The Letter arguably could be read in that way. However, there are no express words used to indicate that the colleague was present. While the syntax of this particular paragraph is poor, it does not in turn mean that the investigation was deficient in the manner contended.
[108] There were submissions made concerning Mr Garner having made no mention of the incident on 9 March 2020 in his interview with the Supervisor (as evinced in the file notes) - however, for the purpose of this application, Mr Garner had provided evidence about the incident on 9 March 2020. Evidence was led that the Supervisor interviewed Mr Garner on 31 March 2020. At that time, the focus was on the incident of 27 March 2020, although the Supervisor acknowledged that Mr Davis had informed him on 30 March 2020, that Mr Lear had claimed to have defecated down a drill hole on the night shift of 9 March 2020. The Supervisor explained he wanted to put to Mr Lear the allegation concerning 9 March 2020 and had relied on the evidence given by Mr Davis and Mr Lear – not Mr Garner.
[109] Mr Lear’s contentions concerning the integrity of the investigation are absent foundation. However, the Representative for Mr Lear, was right to identify her misgivings about the Supervisor’s literacy skills. The Supervisor had noted in cross examination that Mr Lear expressed no contrition. However, in Mr Lear’s written response, the first paragraph stated ‘[F]irst and foremost I am truly remorseful of what has transpired’. When asked to read out the first two paragraphs of the written response, it was obvious that the Supervisor had trouble reading. This does not however detract from my conclusion that procedural fairness had been afforded. Mr Lear was provided with ample opportunity on 9 April 2020 and 12 April 2020 to provide his account of what occurred. Further, the Supervisor gave evidence that at the meeting on 12 April 2020, Mr Lear read out the written response he had prepared in advance of the meeting. It was open to the Supervisor to conclude that Mr Lear demonstrated a lack of remorse, given Mr Lear purportedly said he would do the same thing again, including doing it in the town hall if he had to, and that the Supervisor acknowledged that having listened to Mr Lear reading the written response, there was a brief indication he was now remorseful.
[110] By way of observation only, I make the following comments. If the Respondent places upon its operational supervisory staff the responsibility for drafting disciplinary correspondence and requires those supervisors to consider the written responses of employees in disciplinary matters – at the very least, it should assess they have the requisite literacy skills to perform such work, and if they do not, then the appropriate support structures should be put in place to assist them.
[111] The Respondent does a disservice to its own employees and places them in the most unenviable of positions, to have them give evidence before this Commission in the absence of providing information to my Chambers and the other party, that one of its witnesses requires support when reading. It was not the case that the Supervisor could not read at all, and I am in no way suggesting that the Supervisor was not competent and capable at undertaking his role. But evidently, he would have benefited from support or assistance having been put in place, when asked to read passages of text, in a public forum. The Commission was unable to provide such support because this information had not been imparted. It should be a salient lesson for those involved in the case. Particularly, in circumstances where witness statements are relied upon, as are annexures. As it is, the Supervisor’s oral evidence was consistent with the substance of his written account.
[112] The Representative for Mr Lear submitted that Mr Lear had not received a copy of the PIP and the letter that was said to have accompanied the PIP appeared to have been dated post Mr Lear’s dismissal, and one day prior to the date of the Supervisor’s witness statement. Mr Lear was not dismissed on the basis of poor performance and therefore little turns on these points. However, of significance, was the impetus for the PIP’s establishment. Namely, Mr Lear’s poor attitude as evinced by the disparaging comment made. It was that disparaging comment that formed part of the basis for the conclusion reached that there was a valid reason for dismissal.
[113] Mr Lear was asked to provide any information he wished for the Company to consider. He played a video from his phone concerning his role in an Anzac Day ceremony. Mr Lear was clearly proud of being an ex-service person. Further, he had served the Respondent for some seven years.
[114] However, it was not the case that Mr Lear had an unblemished employment record. While two written warnings dated back to 2015, there had, more recently, been separate coaching notes to address perceived shortcomings and call out unacceptable conduct. I acknowledge that Mr Lear disputed the veracity of such coaching notes, but there was no evidence led that he had formally disputed them.
[115] Whilst I appreciate the impact the dismissal has had on Mr Lear, I am unpersuaded that the mitigating factors presented give rise to a conclusion of harshness.
[116] Having taken into account all of the circumstances and the considerations in s 387, I can only but conclude that Mr Lear’s dismissal was not unfair.
DEPUTY PRESIDENT
Appearances:
Ms A Millar of Australian Dismissal Services for the Applicant;
Mr J McLean for the Respondent.
Hearing details:
2020:
Perth (by video);
September 16 and 17.
Printed by authority of the Commonwealth Government Printer
<PR722791>
1 Witness Statement of Mr Nuno Pestana [6].
2 Witness Statement of Mr Joel Garner [4].
3 Ibid [5].
4 Ibid [6].
5 Ibid [6].
6 Ibid [7].
7 Ibid [7].
8 Ibid [7].
9 Ibid [10].
10 Ibid [11].
11 Ibid [12].
12 Statement of Mr Anthony Lear [15].
13 Ibid [16].
14 Ibid [16].
15 Ibid [16].
16 Supplementary Witness Statement of Mr Anthony Lear [55].
17 Ibid [55].
18 Ibid [55].
19 Ibid [55].
20 Witness Statement of Nuno Pestana, Annexure NP6.
21 Statement of Mr Jack Hughes [4].
22 Ibid [5].
23 Ibid [5].
24 Ibid [6].
25 Ibid [6].
26 Ibid [7].
27 Ibid [7].
28 Ibid [9].
29 Ibid [8].
30 Ibid [8].
31 Ibid [8].
32 Statement of Mr Anthony Lear [22].
33 Ibid [22].
34 Ibid [23].
35 Ibid [40] – [ 43].
36 Witness Statement of Mr Joel Garner [14].
37 Ibid [15].
38 Ibid [15].
39 Ibid [15].
40 Ibid [16].
41 Ibid [16].
42 Supplementary Witness Statement of Mr Anthony Lear [26].
43 Ibid [27].
44 Ibid [30].
45 Ibid [30].
46 Statement of Mr Anthony Lear [13].
47 Ibid [13].
48 Supplementary Witness Statement of Mr Anthony Lear [24].
49 Witness Statement of Mr Nuno Pestana [13].
50 Ibid [13].
51 Ibid [13].
52 Ibid [13].
53 Ibid [13].
54 Ibid [13].
55 Ibid [13].
56 Ibid [26].
57 Ibid [26].
58 Ibid [26].
59 Ibid [27].
60 Ibid [27].
61 Ibid [28].
62 Ibid [31].
63 Ibid [32].
64 Ibid [32].
65 Ibid [34].
66 Ibid [34].
67 Ibid [37].
68 Ibid [44].
69 Ibid [45].
70 Witness Statement of Heath Thompson [11].
71 Ibid [11].
72 Ibid [11].
73 Witness Statement of Terry Townley [11].
74 (1995) 185 CLR 411, 463.
75 Fair Work Act 2009 (Cth) s387(a).
76 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
77 Potter v WorkCover Corporation (2004) 133 IR 458, and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].
78 (1999) 169 ALR 89, 92.
79 King v Freshmore (Vic) Pty Ltd, Print S4213, Ross VP, Williams SDP, Hingley C
80 Witness Statement of Mr Joel Garner [11].
81 Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243 [24].
82 Trimatic Management Services Pty Ltd v Bowley [2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
83 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Previsic v Australian Quarantine Inspection Services Print Q3730.
84 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.
85 (2013) 238 IR 1.
86 Ibid 41.