Allan Peter Baker v Thiess Pty Ltd

[2014] FWC 8301

[2014] FWC 8301

FAIR WORK COMMISSION

DECISION

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

Allan Peter Baker
v
Thiess Pty Ltd
(U2014/7515)

Adrian Ward
v
Thiess Pty Ltd
(U2014/7518)

VICE PRESIDENT HATCHER SYDNEY, 11 DECEMBER 2014

Application for relief from unfair dismissal.

Introduction

[1] Mr Allan Baker and Mr Adrian Ward, the respective applicants in these two matters, both seek unfair dismissal remedies in relation to their dismissal from employment with Thiess Pty Ltd (Thiess) at the Burton Downs Open Cut Coal Mine in Queensland (Burton Mine) on 8 May 2014. Mr Baker was summarily dismissed, and Mr Ward was also dismissed with immediate effect but with the payment of four weeks’ pay in lieu of notice.

[2] The dismissals arose out of an incident which occurred during the night shift of 27-28 March 2014, when Mr Baker left work prior to the end of his shift. The reasons given for Mr Baker’s dismissal in the termination of employment letter issued by Thiess on 9 May 2014 were as follows (omitting formal parts):

“Re: Termination of Employment

I refer to the above and discussions that occurred on Thursday 8th May 2014 involving you, Theo Kummeling (Site Manager) and Liesl Nell (Senior HR Advisor).

The purpose of this correspondence is to confirm the verbal advice provided to you in that discussion that your employment with Theiss has been terminated with immediate effect for serious misconduct.

This decision relies upon the findings of an investigation into an incident involving a serious breach of your contract of employment and mine site procedures.

During the discussions referred to above you were afforded the opportunity to respond to the allegations.

The findings of the investigation as communicated to you in the meeting on Thursday 8th May 2014 include:

• You were responsible for a serious breach of your employment conditions.
• On the evening of the 27th of March 2014 you absented yourself from site without permission during a critical situation on site and discharged your obligations as a supervisor.
• Furthermore during the investigation it was established you were less than truthful in your version of the events of that particular evening.
• Your actions have led to a serious breach in the trust and confidence we place in members of our site leadership team to ensure that all procedures and safety measures are followed to deliver a safe and productive workforce.

It is crucial in Thiess’ assessment of the gravity of this incident that there is an expectation upon your role as a supervisor of Thiess at the Burton Mine that you will abide by the site procedures at all times. Procedures, which are well understood by you. Clearly you have failed to do this on this occasion.

In accordance with the findings of the investigation into this incident Thiess considers that your conduct in this instance constitutes serious and unacceptable misconduct. Thiess is of the opinion that dismissal is warranted in the circumstances.

Accordingly your employment with Thiess was terminated for serious misconduct with immediate effect and without notice from Thursday, 8th of May 2014.”

[3] Mr Ward’s termination of employment letter, also issued on 9 May 2014, stated the following reasons for his dismissal (omitting formal parts):

“Re: Termination of Employment

I refer to the above and discussions that occurred on Thursday 8th May 2014 involving you, Theo Kummeling (Site Manager) and Liesl Nell (Senior HR Advisor).

The purpose of this correspondence is to confirm the verbal advice provided to you in that discussion that your employment with Theiss has been terminated with immediate effect providing falsified statements in an investigation being conducted of another employee leaving site without permission.

This decision relies upon the findings of an investigation into an incident involving a serious breach of your contract of employment and mine site procedures.

During the discussions referred to above you were afforded the opportunity to respond to the allegations.

The findings of the investigation as communicated to you in the meeting on Thursday 8th May 2014 include:

• During the investigation it was established you were less than truthful in your version of the events of that particular evening.
• Your actions have led to a serious breach in the trust and confidence we place in members of our site leadership team to ensure that all procedures and safety measures are followed to deliver a safe and productive workforce.

It is crucial in Thiess’ assessment of the gravity of this incident that there is an expectation upon your role as a supervisor of Thiess at the Burton Mine that you will abide by the site procedures at all times. Procedures, which are well understood by you. Clearly you have failed to do this on this occasion.

In accordance with the findings of the investigation into this incident Thiess considers that your conduct in this instance constitutes serious and unacceptable misconduct. Thiess is of the opinion that dismissal is warranted in the circumstances.

Accordingly, your employment with Thiess was terminated for this breach of your contract with immediate effect and 4 weeks in lieu of notice will be provided to you inclusive of the 5th of June 2014.”

[4] Because their dismissals arose from a substantially common substratum of facts, their applications were heard together, and evidence in each matter was treated as also being evidence in the other matter.

Preliminary matters for determination

[5] Section 396 of the Fair Work Act 2009 (the Act) requires that four specified matters must be decided before the merits of the applications may be considered. There was no contest between the parties about any of those matters. I find that:

(a) Both applications were made within the period required by s.394(2);

(b) Mr Baker and Mr Ward were both persons protected from unfair dismissal;

(c) Thiess was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) neither dismissal was a case of genuine redundancy.

The evidence

[6] The critical factual issues in this matter were the events of the night shift of 27-28 March 2014, the subsequent investigation of those events which occurred from 30 April to 2 May 2014, and the process by which Mr Baker and Mr Ward were dismissed. Evidence about the first matter was given, on the applicants’ side, by Mr Baker, Mr Ward, and Mr Damien Hutley, who was rostered as Co-ordinator on the shift and who stepped up to the role of Supervisor in Mr Baker’s absence. Thiess called evidence from Mr Trevor Davis and Mr Darren Gwynne. Mr Davis was the Open Cut Examiner for the shift. Mr Gwynne was at the time the incident occurred substantively a Supervisor at the Burton Mine, but was stepping-up into the role of Superintendent. He was subsequently dismissed by Thiess because of a separate instance of misconduct. Thiess also relied upon various documents either separately tendered or annexed to the witness statements of other witnesses who gave evidence. Mr Peter Bell, an Information Communication Technology Service Engineer employed by Thiess, gave evidence concerning Mr Baker’s computer log-on and use during the 27-28 March 2014 night shift, and Mr Scott Triffett, IT Team Leader employed by Thiess, gave evidence about Mr Baker’s email usage during that shift.

[7] Evidence about the investigation and the termination meeting was given, on the applicants’ side, by Mr Baker, Mr Ward and Mr Hutley. Thiess called evidence from Ms Liesl Nell, its Senior HR Advisor at the Burton Mine, Mr Gus Jorquera, the Project General Manager and Senior Site Executive at the Burton Mine, and Mr Theo Kummeling, the Site Manager at the Burton Mine.

[8] Some general findings concerning the credit of some of the witnesses need to be stated at the outset. Mr Baker’s evidence was clearly coloured by the need to explain and defend the version of events he had given to Thiess during the investigation process concerning the night shift on 27-28 March 2014, namely that he left the Burton Mine site at approximately 2.30-2.45am on 28 March 2014. His position at the hearing was that his best recollection remained that he had left the site early in the morning of 28 March 2014 and, to the extent that facts disclosed by the evidence of other witnesses and the documents tended to indicate that he left much earlier than this, he claimed that he could not remember precisely when he left the site because so much time had elapsed before he was first called on to recall the events of that night.

[9] I do not accept his evidence in that respect. As will become clear, Mr Baker’s evidence concerning the time at which various events occurred during that shift was radically inconsistent with what was disclosed by other witnesses and the relevant documents and records. For reasons which will be explained, I do not consider that inconsistency of that degree can be explained by a simple difference in recollection, and that Mr Baker in giving evidence deliberately elongated the timing of events, and described himself as doing work he did not in fact do, in order to lend credibility to his earlier account of his departure time.

[10] I consider that Mr Ward’s evidence was, generally speaking, credible. Although he answered some questions in an overly defensive fashion, and was not as quick as he perhaps should have been to make reasonable concessions in his evidence, I consider that his account of events accorded reasonably well with the other evidence. Any inconsistencies are not significant and can reasonably be explained by a lack of recollection, noting that Mr Ward was not directly involved with Mr Baker’s departure from the site and therefore cannot be expected to have a precise recollection about it.

[11] I accept that Mr Hutley gave his evidence truthfully, and no submission to the contrary was made by Thiess. There were however some inconsistencies in his evidence which need to be resolved. I see no reason not to accept the evidence of Mr Davis. However, the evidence of Mr Gwynne was problematic. His evidence contradicted that of Mr Hutley about an important matter. As will be explained, there were significant inconsistencies attending Mr Gwynne’s version of events such that, where his evidence contradicted that of Mr Hutley, I prefer Mr Hutley’s evidence.

[12] Ms Nell and Mr Kummeling gave significantly inconsistent evidence concerning what occurred at the interviews with Mr Baker, Mr Ward and Mr Hutley during the investigation process. Those inconsistencies are largely explained by the lack of a proper contemporaneous record of those interviews, but in resolving them it has been necessary for some of Ms Nell’s evidence not to be accepted.

[13] Mr Jorquera, Ms Nell and Mr Kummeling gave evidence about the process by which it was determined to dismiss Mr Baker and Mr Ward. For reasons which will be explained, I do not accept one aspect of Mr Jorquera’s and Ms Nell’s evidence concerning the nature of the termination meetings on 8 May 2014.

[14] All evidence adduced in respect of each application has been treated as evidence in the other application. In setting out the relevant facts in these matters below, I have simply stated those facts which were not in contest or clearly established by the evidence. Where there was a serious contest as to the facts, I have set out the nature of the contest and my findings concerning those contested facts.

Employment backgrounds of the applicants

[15] The facts concerning the employment backgrounds of Mr Baker and Mr Ward were not controversial. Mr Baker was first employed by Thiess in approximately January 1998. He was initially employed as an Operator, but was promoted a number of times. He worked at a range of different mines operated by Thiess, including for a year at Thiess’s Sangatta Open Cut Coal Mine in Indonesia. On 23 May 2013 Mr Baker was appointed to the position of Supervisor Mining at the Burton Mine. He had previously acted in the higher position of Mining Superintendent. In July 2013 Mr Baker was required to re-apply for his position in a competitive selection process because Thiess had too many Supervisor positions. He was successful in being re-appointed to his position. Prior to the incident on 27-28 March 2014, he had an unblemished employment record. At the time of his dismissal, Mr Baker’s gross annual remuneration package was $206,400.

[16] Mr Ward commenced employment with Thiess as an Operator on 23 March 2005, having worked for some years prior to this as an Operator for other employers at mines in the Bowen Basin area. He was promoted to the position of Production/Mining Coordinator in about 2006, and further promoted to the position of Supervisor Mining at the Burton Mine in August 2011. The only adverse matter that was identified in the evidence concerning Mr Ward’s employment record (by Mr Ward himself) was that he was warned about an incident which occurred when he was acting up in the position of Mining Superintendent in 2011. At the time of his dismissal, Mr Ward’s annual gross remuneration package was $193,000.

Operations at the Burton Mine

[17] The Burton Mine is located in the Bowen Basin area in Central Queensland approximately 160 kilometres from Mackay. Thiess operates the Burton Mine on behalf of Peabody Pty Ltd, and currently employs approximately 140 persons for this purpose. Employees at the Burton Mine generally work on a 5/4 roster, which requires them to work five shifts and then allows four days off. Day and night shifts are worked on a rotational basis. Thiess provides camp accommodation to employees near the mine site, allowing them to stay near the mine while working their “tour” and then return home during their days off. Both Mr Baker and Mr Ward utilised the camp accommodation while working, and returned to their residences in the Mackay area when not working.

[18] Mr Jorquera was at all relevant times the Project General Manager at the Burton Mine, and also Thiess’s nominated Site Senior Executive (SSE) for the mine, meaning that he has specific obligations prescribed by s.42 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) concerning the overall direction and management of the mine, including relating to health and safety matters. One of the obligations is to develop and implement a single safety and health management system (SHMS) for all persons at the mine.

[19] The staff structure at the Burton Mine has Mr Theo Kummeling as Site Manager directly below Mr Jorquera, and below him (in descending order) are the Superintendents, Supervisors, Co-ordinators and Operators. All staff have safety obligations under s.39 of the CMSH Act, including complying with procedures under the SHMS for the mine. There are also separate positions of Open Cut Examiners (OCEs), who report to the SSE. The OCEs perform a statutory safety function under the CMSH Act, and may issue directions and instructions to Supervisors.

[20] The Project General Manager, the Site Manager and the Superintendents are day workers. The remaining staff generally work shift work on the 5/4 roster. Night shifts generally have two Supervisors and two Co-ordinators allocated to them. One of the Supervisors performs the function of Field Supervisor, which generally involves overall responsibility for operational requirements, the organisation and management of the workforce on shift and the overall safe running of the shift, and the other performs the role of Dispatch Supervisor, which generally involves organising and booking equipment in the office. The Field Supervisor is the most senior employee on the shift. In the absence of a Supervisor, a Co-ordinator may be required to “step-up” in the Supervisor’s role.

[21] The Field Supervisor is specifically required, over the course of a shift, to carry out three inspections of the mine. Each one of these must involve an inspection of the ramps, the excavators, and the tip head and dumps. A Ramp Check Sheet, the Excavator Inspection Checklist and the Tip Head Dumping Check Sheet must be completed to evidence the completion of these inspections and to record the results.

[22] The Burton Mine suffers from geotechnical issues in that rain is liable to cause weaknesses in both the Highwall and the Low-wall, which increase the risk of failure (in the form of fissures, cracking or even a collapse of the wall). This is a critical safety issue at the Burton Mine, and requires constant monitoring. The risk of accidents is regarded as increased when it rains. Rain may cause the mine to be placed under Code Red (meaning that no vehicles may travel on any of the mine roads) or Code Yellow (meaning that only dozers, graders and four-wheel drive vehicles can use the roads). When it is raining, mining production usually stops, but some limited activity, such as rehabilitation work, may be carried out by dozers and graders under a Code Yellow. Staff not working while it is raining will generally undergo training. Before mining work can resume after an episode of rain, a Job Safety Evaluation Analysis (JSEA) must be completed assessing whether it is safe to resume work and, if so, the controls that need to be put in place.

Events of 27-28 March 2014

Background

[23] The night shift of 27-28 March 2014 was the last in Mr Baker’s tour before he was able to return home to Mackay. A night shift would usually require the Supervisor to be on the site by about 5.00pm and to continue working until about 6.30am the following morning. Mr Baker had previously arranged a medical appointment in Mackay at 9.00am on 28 March 2014 in order to have a skin cancer removed. He desired to leave work early to facilitate him attending this appointment, given that the drive from the Burton Mine to Mackay would take approximately two hours.

[24] It had been raining for a few days prior to Mr Baker and Mr Ward commencing shift on 27 March 2014, and there had been a heavy rain storm at about 4.00pm that afternoon. Production had been stopped, and there was a Code Yellow in place.

Initial events

[25] Mr Baker and Mr Ward, having had a meal, came on to the mine site at about 5.00pm in accordance with their usual practice. Mr Baker attended a handover with the Co-ordinator for the previous shift, which included an initial inspection driving around the Burton Mine with the outgoing Co-ordinator. He was informed that production had stopped and would be unable to resume for some time, and observed that conditions were poor, being very wet and muddy. Mr Ward completed the allocation of manning. Then both of them attended at the Common Start Point (CSP) at about 6.10pm to conduct the pre-start meeting with the in-coming crew rostered for the night shift. Mr Davis was also in attendance. At this meeting, a few operators were assigned to perform rehabilitation work with dozers.

[26] Mr Ward’s evidence was that the pre-start meeting usually only took about ten minutes, and he gave no indication that the meeting on 27 March 2014 was any longer than usual. Mr Davis’s evidence was that after the pre-start meeting he left to go to the crib hut (also referred to in the evidence as the Orica crib hut), saw Mr Baker there, and later left the crib hut at about 6.30-7.00pm to check the pit conditions and rehabilitation bulldozers. That evidence strongly suggests that the pre-start meeting could not have taken much longer than about ten minutes in accordance with what Mr Ward described as the usual practice. Mr Hutley said the meeting was over at about 6.20pm in accordance with usual practice. However Mr Baker said that he was approached after the end of the meeting by a number of crew members with inquiries of various kinds, which took him 30-45 minutes to deal with, with the result that the meeting did not end until 7.00pm or after. This evidence was not corroborated by any other witness. This appears to me to be the first attempt to elongate one of the night’s events, and I do not accept it.

[27] It was then arranged to transport the shift crew who had no duties they could perform at that time to the crib hut. Transport to this location for the crew was then organised. Once this had been arranged, Mr Baker drove with Mr Hutley to the crib hut in a light vehicle. Mr Davis, as earlier stated, made his way there separately. Mr Ward also made his way to the crib hut; the evidence is not clear but he appears to have travelled there separately. Mr Baker said that it took about 20 minutes to organise the transport for the crew and another ten minutes to travel to the crib hut, placing his time of arrival there at about 7.30pm. Thus on his version of events he was already up to one hour behind Mr Davis’s version in terms of timing. Even accepting that both witnesses were giving time estimates based on recollection, I consider that this difference is primarily explained by Mr Baker giving inflated time estimates for the events that occurred.

Permission from Mr Gwynne to leave early

[28] Mr Baker gave evidence that while driving from the CSP to the crib hut, he told Mr Hutley about his medical appointment in Mackay the following morning, and asked whether Mr Hutley could step up as Supervisor when he left for the appointment. Mr Hutley responded that he could. The evidence established that Mr Hutley had worked as a step-up Field Supervisor in a competent fashion on a number of occasions before, and Mr Baker said he was confident that Mr Hutley could fill the role appropriately, particularly as the wet conditions meant that there was very little work that had to be performed. Mr Baker said that he then pulled over the vehicle and rang Mr Gwynne on a mobile telephone that was docked in a hands-free docking station fitted to the vehicle. He said that he told Mr Gwynne about the conditions and identified hazards, and asked if he could leave early for the medical appointment, with Mr Hutley to cover for him. Mr Gwynne responded, according to Mr Baker, by saying that this was fine so long as he had arranged coverage and had done everything he had to do. There was, on Mr Baker’s evidence, no discussion of the time of departure.

[29] Mr Hutley corroborated Mr Baker’s account in all its essential aspects. He confirmed in his evidence that the telephone call had occurred on the way to the crib hut. He said that he had heard the telephone conversation with Mr Gwynne because the mobile telephone was being used in hands-free mode, and that Mr Gwynne had given Mr Baker the permission he requested without there being any reference to the time at which Mr Baker might leave.

[30] There are a couple of possible problems with Mr Hutley’s evidence. The first is that, according to the evidence of Ms Nell, Mr Hutley said during an interview conducted on 1 May 2014 as part of the investigation process that Mr Baker was driving when he made the call to Mr Gwynne and had the phone to his ear, with the result that he (Mr Hutley) could not hear what Mr Gwynne said during the conversation. Mr Hutley told Ms Nell, she said in evidence, that Mr Baker had reported to him after completing the call that Mr Gwynne had given him permission. However, this aspect of Ms Nell’s evidence was not raised with Mr Hutley in cross-examination, so that a resolution of this apparent conflict is not possible. Nor was Ms Nell cross-examined about her evidence in this respect. It is not clear that her evidence was consistent with the report she sent to Mr Jorquera on 2 May 2014, which relevantly stated:

“Damiean [sic] also stated that Allan [Baker] was driving during the first occasion and confirmed that he had a phone conversation with Darren [Gwynne] around 7.30 while driving - he knew that Allan was talking on the mobile phone during this and did not want to get him into trouble and was hesitant to say that the conversation was on speaker phone as this would then clearly have led to further questions as to Darren side [sic] of the conversation he would not have been able to answer.”

[31] The second possible problem is that in the same interview, according to Ms Nell’s evidence, Mr Hutley told her that the telephone call took place “just after 7pm when they were out doing a first drive around the pit”. The “drive around the pit” referred to was a later event - that is, this version indicates that the phone call did not occur during the drive to the crib hut. The time does not match up either, since Mr Hutley indicated in his evidence that he and Mr Baker left the CSP to go to the crib hut at 6.35pm at the very latest. The version which Ms Nell said was conveyed to her may be consistent with Mr Baker’s mobile telephone records, which show that the only call which Mr Baker made to Mr Gwynne that evening was at 7.33pm. I note that Mr Baker initially told Ms Nell during the investigation process that the call occurred about 7.30pm. However this matter was again not raised with Mr Hutley in cross-examination.

[32] Mr Gwynne gave a quite different account. He said in his statement of evidence that, at approximately 5.30pm, Mr Baker approached him outside of the Supervisor/Co-ordinators’ office (Supervisors’ Office), which is located adjacent to the pit, and asked him for permission to leave early at around 4.00am to attend his doctor’s appointment. Mr Gwynne said that he gave him permission to leave at approximately 4.00-4.30am as long as there was sufficient coverage for his absence. Mr Gwynne said that he had in mind that, as he was rostered for the day shift the following day (28 March) and planning to attend for work at 4.00-4.30am, he himself would provide the appropriate coverage. He agreed that he had later had a telephone discussion with Mr Baker, but firmly denied that the issue of leaving early had been discussed in this telephone call.

[33] However a number of matters lead me to call into question the accuracy of Mr Gwynne’s evidence in this respect. He said he recalled the weather at the time of the alleged conversation with Mr Baker at the Dispatch Office as “fine”, which clearly could not be correct. When interviewed about the matter in May 2014, he said (according to Ms Nell) that the discussion occurred at the CSP, not the Supervisors’ Office. No witness suggested that Mr Gwynne attended the CSP when Mr Baker was there during the pre-start meeting; indeed Mr Hutley’s evidence was that there had been an arrangement to meet Mr Gwynne there to discuss a certain matter, but he did not show up. Mr Gwynne also said in his evidence that he did not have any recollection of a later telephone conversation with Mr Baker, but when interviewed in May 2014 he confirmed that this telephone call had taken place and that it had nothing to do with leaving early.

[34] Ms Nell, Mr Kummeling and Mr Jorquera seem to have taken it for granted during the investigation process that Mr Gwynne was giving an accurate and truthful account of the circumstances in which he gave permission to Mr Baker to leave early. I am not sure that that approach was wholly justified. In circumstances where Mr Baker’s absence from the site was regarded as being sufficiently serious to justify him being stood down and an investigation being undertaken, the conduct of Mr Gwynne in giving him permission called for serious scrutiny. If Mr Gwynne was lax in the way he dealt with Mr Baker’s request to leave early, he necessarily bore a degree of responsibility for what occurred. It is likely that Mr Gwynne understood this when he gave his version of events during the investigation.

[35] I conclude that, on the balance of probabilities, Mr Baker sought permission from Mr Gwynne to leave early in a mobile telephone call he made to Mr Gwynne from his vehicle at 7.33pm while Mr Hutley was present. This did not occur while they were driving from the CSP to the crib hut, but at a later time when Mr Baker and Mr Hutley were in a vehicle together. Mr Baker did not, in requesting permission, specify a time of departure, but simply requested to leave early, with Mr Hutley to cover for him. Mr Gwynne approved this on the condition that Mr Baker had arranged coverage and had done everything he had to do. Mr Gwynne may have had in his mind that “leaving early” meant leaving at about 4.00am, but I am satisfied that he did not actually say that to Mr Baker.

Work performed by Mr Baker prior to departure

[36] Upon arrival at the crib hut, Mr Baker, Mr Ward and Mr Hutley waited for some time to determine whether the weather conditions would improve. They eventually decided to prepare a JSEA for the resumption of work. The JSEA was prepared by them in conjunction with some other crew members. It was then read out by Mr Hutley to the rest of the shift crew waiting in the crib hut. This took about half an hour in total. Mr Hutley estimated that this task was completed by sometime between 7.00pm and 7.30pm. This broadly fits in with the timeframe that can be established for the whole of the night’s events. Mr Ward, in cross-examination, “guessed” it was at 8.00-8.30pm, but subsequent events make it clear that this cannot be correct.

[37] At some time after the completion of the JSEA, Mr Baker, Mr Ward and Mr Hutley went in a light vehicle to the areas they were permitted to access in order to inspect the work areas. Mr Hutley estimated that this took from about 30 to 45 minutes. During this inspection, it was observed that dozers were operating performing rehabilitation work. Mr Baker and Mr Hutley then returned to the crib hut, and Mr Ward drove to the Dispatch Office (which was located immediately adjacent to the Supervisors’ Office). When Mr Baker arrived at the crib hut, he told Mr Hutley that he was going to go to the Supervisors’ Office to finish some paper work, wash his car, and then leave the site. Mr Hutley did not see Mr Baker again during the course of the shift.

[38] At the Dispatch Office Mr Ward continued to monitor the weather conditions to determine whether and when grader crews could be sent out to open access to the mine roads. After a period, Mr Baker came in and said he was going to complete his shift paperwork and wash his vehicle. Mr Ward said in his evidence that at some time during the shift Mr Baker had informed him that he was going to leave the Burton Mine early, that he had received permission from Mr Gwynne to do so “as long as everything that he had to do had been done”, and that Mr Hutley would step-up as Acting Supervisor. He was not able to identify when or how this was communicated to him, but it appears that he was aware of this by the time Mr Baker arrived at the Dispatch Office. It should be noted at this point that, from Mr Ward’s perspective, there was no question of him replacing Mr Baker as Field Supervisor and Mr Hutley replacing him as step-up Dispatch Supervisor because, as Mr Ward explained, Mr Hutley was unable to perform the data-entry function of the Dispatch Supervisor. 1 Mr Ward was further aware that Mr Hutley had stepped-up to replace Mr Baker on a number of previous occasions.

[39] Mr Baker then went to the Supervisors’ Office to do his paperwork. The evidence allows for the time at which this occurred to be estimated with reasonable accuracy. Mr Davis’s evidence was that he went to the crib hut at about 8.15-8.30pm to look for Mr Baker, because he needed him to accompany him on an inspection of the site to determine whether the Code Yellow could be lifted. He said that Mr Baker was not there, and that Mr Hutley told him that Mr Baker was in the workshop. Mr Bell’s analysis of the Thiess computer system showed that Mr Baker logged on to the system at 8.06pm. I would infer from this evidence that Mr Baker left the crib hut at or before 8.00pm, and had spoken to Mr Ward in the Dispatch Office and then gone to the Supervisors’ Office to do his paperwork by 8.06pm.

[40] What work was then performed by Mr Baker on the computer in the Supervisors’ Office was a matter of controversy. Mr Baker was, at the least, required to fill out the Ramp Check Sheet, the Excavator Inspection Checklist and the Tip Head Dumping Check Sheet in order to document the inspection he had carried out with Mr Ward and Mr Hutley. Mr Baker said that his usual practice was to prepare these using templates on the computer system, print them out, and put them in a tray to be sent off to the Burton Mine’s head office. His evidence was that he had done this.

[41] However Mr Bell’s analysis of the computer system did not support this. He examined the system in order to locate all documents that were created and/or modified by Mr Baker during the night shift on 27-28 March 2014. The documents he located as a result of that were annexed to his statement of evidence. They were as follows:

(1) Three Ramp Check Sheets dated 25 February, 25 March and 26 March 2014 respectively were opened and recorded as modified. It is not possible to identify that any of these were populated with any information relevant to the 27-28 March 2014 night shift.

(2) One Excavator Inspection Checklist dated 25 March 2014 was opened and modified. It does not appear to contain any information relevant to the 27-28 March 2014 night shift.

(3) Two Tip Head Dumping Check Sheets dated 25 March and 26 March 2014 respectively were opened and modified. They do not appear to contain any information relevant to the 27-28 March 2014 night shift.

(4) A Pre-Shift Information Sheet dated 26 March was opened and modified, and a Pre-Shift Information Sheet dated 27 March was created. It can be inferred from these documents that Mr Baker accessed the Pre-Shift Information Sheet for 26 March 2014, added some information relevant to 27 March 2014, and then saved it as a new Pre-Shift Information Sheet for 27 March 2014. The added information was limited: the words “same as last shift” were added to the existing answers to two questions, and “Return to work JSEA all to read and sign” was added in the space for the Supervisor’s comments.

[42] Thiess searched its records to find any paper copies of reports which Mr Baker had completed for the 27-28 March 2014 night shift. The only report that was located was the Pre-Shift Information Sheet dated 27 March 2014. That is consistent with the computer records - that is, the only report for the 27-28 March 2014 night shift that was found to have been prepared on the computer system was also the only report able to be found in hard copy.

[43] Mr Baker insisted in his evidence that he had prepared and completed all the required reports. He said that there had been past problems in the process by which paper copies of reports were meant to be transferred from the Supervisors’ Office to the main office, and suggested that it was possible that reports he had prepared on 27 March 2014 and on earlier occasions had gone missing. His counsel also seized upon evidence given by Mr Bell to the effect that an event recorded in the system as an “App-Crash” occurring at 8.06pm might suggest that there was an application crash on the computer at that time, and submitted that this might mean that documents prepared by Mr Baker on the computer system had been lost.

[44] I do not accept Mr Baker’s evidence, and find that the only report actually completed by him in the Supervisors’ Office for the 27-28 March 2014 night shift was the Pre-Shift Information Sheet. The fact that this was the only report which both existed on the computer system and could be located in a paper copy strongly suggests that it was the only report prepared. The explanation that a computer application crash might possibly have caused a loss of documents prepared on the computer does not make sense, because the “App-Crash” event was recorded as occurring at 8.06pm - the same time as Mr Baker logged on. Any work that he did would have been done after this time and would not have been affected by any computer application crash. Mr Baker did not suggest in his evidence that he encountered any difficulty in using the computer system. The possibility that the paper copies of work Mr Baker had done might have been lost is no more than speculation.

[45] It is also significant that Mr Bell’s analysis of the computer system showed that the last time at which any document was accessed or modified was at 8.23pm. Mr Triffet’s analysis of Mr Baker’s email mailbox showed that the last email sent by Mr Baker during that shift was at 8.27pm. The inference I draw from that is that Mr Baker ceased his work on the computer at about 8.27pm. That means he only used the computer for approximately 20 minutes (contrary to Mr Baker’s evidence that he spent about an hour in the Supervisors’ Office). That short space of time makes it highly unlikely that Mr Baker prepared all the reports that he said in his evidence that he prepared.

[46] I therefore find that Mr Baker did not complete a number of fundamental tasks he was required to perform prior to leaving the site.

Mr Baker’s departure time

[47] Mr Ward’s evidence was that after working in the Supervisors’ Office for some time, Mr Baker came into the Dispatch Office, said goodbye, and said he was going to go to the workshop to wash his vehicle. Mr Ward did not see Mr Baker again during the shift. Mr Ward was also the last person to see Mr Baker on the site during the shift. Mr Baker gave evidence which was broadly consistent with Mr Ward’s. Because the computer records indicated that Mr Baker finished his work in the Supervisor’s Office at about 8.27pm, it is likely this event occurred very shortly afterwards at about 8.30pm. Mr Baker’s estimate was that this occurred fairly soon after 9.30pm. That cannot be correct, because it leaves a period of an hour not accounted for.

[48] Mr Baker said that he then went to the workshop to wash his vehicle, which was covered in mud, and that this took about 30-45 minutes. His evidence was that after he had done this “There was no more work that was required to be performed” and he left the site. He said that he did not recall when this was, although even on his chronology of events it could not be after 10.30pm.

[49] Mr Baker’s mobile telephone billing records indicated a much earlier departure time. These records identify for most but not all calls the receiver tower which transmitted the call. It is not clear why for some calls no transmitter tower is identified. For example, the call to Mr Gwynne made at 7.33pm does not identify the transmitter tower. However the records show that at 8.57pm Mr Baker made a call that was identified at “Burton Mine”. A large number of calls on the billing record are listed as being at “Burton Mine”, indicating calls that were made on the mine site. At 9.04pm and 9.05pm respectively, two calls are identified as “Hail Creek”, and at 9.37pm, a call is identified as “Nebo”. The Hail Creek and Nebo transmitter towers are passed on the route back to Mackay. Ms Nell gave evidence that when she drove from Mackay to the Burton Mine or vice versa, these locations would appear on her billing records in respect of mobile telephone calls she made en route.

[50] Although there was an attempt by Mr Baker to cast some doubt about the conclusions that could be drawn from the telephone records, I consider that they indicate that Mr Baker had by very shortly after 9.00pm already left the Burton Mine. That conclusion fits comfortably with the chronology of earlier events already described. If Mr Baker left the Dispatch Office after speaking to Mr Ward at about 8.30pm, it would allow a period of approximately 30 minutes for him to wash his vehicle before he left.

[51] I therefore find that Mr Baker left the Burton Mine at about 9.00pm on 27 March 2014, approximately 9½ hours before he would normally have finished his work. That departure time meant that Mr Baker would have arrived home at about 11.00pm. Mr Baker said in his witness statement that on 28 March 2014 he woke up at about 6.30am and got his children ready for school before attending his medical appointment. If so, Mr Baker would have been able to have a normal night’s sleep.

Events after Mr Baker’s departure

[52] The weather had significantly improved by the time that Mr Baker left the Burton Mine. Mr Davis directed that road recovery work commence. Mr Ward in conjunction with Mr Hutley made arrangements for some graders to access the rehabilitation dozers, as they required fuel, and then road recovery work began. It should be noted at this point that one thing that Mr Ward and Mr Hutley both clearly remembered was that Mr Baker had left before the graders started operating. The Open Cut Data Capture (OCDC) Report on Thiess’s computer system showed that the graders started operating at about 10.00pm. During the course of the shift, Mr Davis and Mr Hutley conducted two further joint inspections of the site. Mr Davis observed during the shift that Mr Hutley was doing the work of the Field Supervisor, but did not ring Mr Baker to find out where he was, and was not informed by anyone else that Mr Baker had left the site and that Mr Hutley was stepping up in his place. Production on three out of the four circuits resumed on the morning of 28 March 2014 before the end of the night shift, and the fourth circuit was ready to resume production by the time the day shift commenced work. Mr Ward and Mr Hutley finished work at about 6.30am on the 28th.

The investigation

[53] It was only belatedly and by accident that Thiess management at the Burton Mine became aware of Mr Baker’s early departure on 27 March 2014. Mr Davis, although clearly concerned by the fact that he could not find Mr Baker during the shift, did not report the matter. However, in a discussion some weeks later with a Superintendent, Mr Rick Barbeler, concerning the installation of tracking devices in vehicles, Mr Davis made a remark to the effect that the devices were necessary so that Thiess could track Mr Baker’s movements. Mr Barbeler decided that the matter required a formal investigation. Mr Barbeler in the first instance requested that Mr Baker’s mobile telephone records be obtained, and the view was quickly formed on the basis of those records that Mr Baker had left the Burton Mine site at about 9.00pm on 27 March 2014.

[54] On 30 April 2014, Mr Baker was rostered to work a night shift as the first shift in a tour. As he was driving to the Burton Mine, he was rung by another Superintendent, Mr Bill Messervy, and told to meet with him at 4.00pm prior to starting work. Mr Baker did so, and was told that he was stood down for leaving the site early on 27 March 2014. The evidence did not make it clear whose decision it was to stand Mr Baker down. Accordingly, and with Mr Messervy’s permission, Mr Baker left the Burton Mine and drove back to Mackay. On his return journey, he was called by Mr Messervy and requested to make a “statement” about the events of 27-28 March 2014. Mr Baker said he then rang Mr Ward, who was also rostered to work that night, and told him that he would not be working that night because he had been stood down for leaving the site without permission.

[55] Mr Ward said that shortly after commencing his shift on 30 April 2014 and during the handover, Mr Messervy approached him and asked him to provide a “statement about what had happened on the night of 27 March 2014 regarding Mr Baker leaving site”, and in doing so asked him to identify the time when Mr Baker left. There was no instruction for him not to speak to anyone else about the matter.

[56] Mr Baker and Mr Ward both said in their statements of evidence that they had a discussion that same afternoon/evening about the time when Mr Baker had left the Burton Mine site on 27-28 March 2014. There was initially some confusion in the evidence about whether this had been part of the telephone conversation in which Mr Baker told Mr Ward that he had been stood down, but Mr Ward in cross-examination eventually clarified the position when he said it was a separate and later conversation. Mr Ward said that after he had been requested by Mr Messervy to make a statement and identify Mr Baker’s time of departure, he rang Mr Baker to discuss it because he could not recall and “really had no idea” what the time of departure was. Mr Ward’s evidence was to the effect that Mr Baker said that he thought he had left the site at about 1.00am on the 28th, and after they discussed the sequence of events Mr Ward agreed that “it made sense that it was around 1 o’clock when he would have left”. I consider, for reasons which will be explained in greater detail later in this decision, that Mr Baker knew full well at the time of this conversation that he had left the site much earlier than 1.00am. However, I do not consider that Mr Ward’s participation in the conversation is to be given the sinister interpretation advanced by Thiess. The evidence of Mr Ward, which I accept, is that having been asked to identify Mr Baker’s time of departure and not knowing or being able to recall what that was, he rang Mr Baker and asked him. That did not involve any knowing participation on his part in a dishonest scheme to align his story with that of Mr Baker.

[57] During the course of the night shift that followed, Mr Ward and Mr Hutley also had a discussion about the matter, including about the time at which Mr Baker left the site on 27-28 March 2014. Neither had a clear recollection, but they both came to the conclusion that it was at about 1.00am on the 28th (Mr Ward’s version of the conversation) or in the early hours of the 28th or around midnight (Mr Hutley’s version). Again, I do not think there is anything sinister about this. They had been asked, and were trying to recall, when Mr Baker left the site.

[58] Mr Ward made the requested statement in the form of an email which he sent to Mr Messervy on 30 April 2014 at 10.16pm. The email read as follows:

“Bill,

As per our discussion regarding Allan Baker leaving site. On D crews last shift of the tour on the 27th of march Allan had called acting mining superintendent Darren Gwynne to ask for permission to leave early as we had received heavy rain during the day and showers into the evening and were only doing clean up works maybe later during the night and were not looking like running at all, Allan had a doctor’s appointment the following morning so he discussed with the superintendent him leaving early which he was granted permission as myself and Damiean Hutley where both on site to finish the shift. Allan, Damiean and myself had a detailed drive through the pit so we were all clear on hand over information for the oncoming shift change over the next morning. Allan left the dispatch office at approx. 1am to finish of paperwork and wash his car before leaving site.”

[59] Except for the reference to 1.00am, the contents of this statement are broadly consistent with what actually occurred on 27-28 March 2014.

[60] Mr Hutley was also asked to make a statement about the matter at some stage on 30 April 2014. His statement, made the same day, was as follows:

“Statement of Dameian Hutley

On the 27.03.2014 I was present in the vehicle when my supervisor Alan Baker Called up superintendent Darren Gwynn by phone in regards to taking off early as he had to attend a doctor’s appointment in mackay that morning. Darren advised Alan that this was ok. Alan Had previously asked me if I could fill in for him to cover this period. We conducted an indepth pit drive around and had accurate information for the oncoming shift, came back to the dispatch office around 1am, Alan said he was going to do his paper work and then wash his car, if I had any questions to see Adrian Ward.”

[61] Mr Hutley’s statement is inaccurate in one significant respect apart from the reference to 1.00am, in that it suggests that Mr Hutley was present at the Dispatch Office when Mr Baker said he was going to do his paperwork and then wash his car. There was no evidence that this was the case.

[62] Mr Baker supplied Thiess with a more detailed one-page handwritten statement the following day (1 May 2014). In this statement he described himself as having completed his paperwork at about 1.15am, and then said:

“On the 27.3.14 I was on night shift the last shift of that tour, we were pulled due to rain all crew members were instructed to stay at the CSP. At approx mid night myself and Wardy (supervisor) and Hatto (co-ordinator) decided to do another pit inspection to make sure all plant and equipment were safe and sound. While doing inspections I explained what prioritys we had in the pit and planned dirt move and dumping. At the time it was still raining so said to the guys we will go to the site office and I would complete my outstanding paperwork: - inspections, handover, and other JSEA’s, current plan etc for the new on coming crew for day shift. It was approx 1.15 am by the time I had completed the task and it was still drizzling rain so I said to Wardy that I might as well wash my car and head for home he did not have a problem with this. I had spoken with Darren Gwynne early that shift about wanting to go a bit early due to an appointment with a skin cancer doctor at 9.30am. This was the only oppitunity [sic] to have suspect spots cut out and tested for melanoma. Skin scan Mount Pleasant. Darren said provided every thing was completed and safe and the boys had the information on the pit it would be ok to go early. This was all covered in the drive around and paper work so I headed to the wash pad washed my ute tagged off and left site at approx 2.30-2.45am. I do not understand what the issue is as I have followed procedure gaining permission from my line manager (Darren) and handed all information over relergating my resopserbility [sic]. I rang Hatto at approx 7.00am to see how it all went and he stated all good and they cranked over around 5.00am.”

[63] Mr Davis was also asked to supply a statement. He provided a very detailed four-page handwritten statement on 1 May 2014.

[64] By 1 May 2014, Mr Kummeling and Ms Nell had taken charge of the investigation. They arranged to separately interview Mr Baker, Mr Ward and Mr Hutley during the course of 1 May 2014. A second interview was conducted with Mr Hutley on 1 May 2014, and second interviews with Mr Baker and Mr Ward were conducted on 2 May 2014. Mr Kummeling did not attend the second interview with Mr Ward on 2 May 2014; his place was taken by Mr Messervy, who did not give evidence. No proper notes were taken of these meetings, or of subsequent meetings with Mr Baker and Mr Ward conducted during the investigation/disciplinary process. Ms Nell made some informal notes on some of the documents relevant to these meetings, and she also wrote a report to Mr Jorquera on 2 May 2014 setting out some conclusions she had reached about the matter based upon those meetings. Beyond this, there is no contemporaneous record of what occurred at each of the meetings. Mr Kummeling and Ms Nell (as well as Mr Baker, Mr Ward and Mr Hutley) gave evidence of the meetings they participated in. As a result of the lack of a proper contemporaneous record, the evidence they gave appears to have largely been based on their recollection of the meetings some months after the event. This meant, not surprisingly, that there are some striking differences between the versions of events given by Mr Kummeling and Ms Nell. That creates some difficulties in determining what happened.

[65] One thing I consider to be reasonably clear is that, having seen Mr Baker’s mobile telephone records, Mr Kummeling and Ms Nell had prior to the interviews already concluded that Mr Baker had left the Burton Mine at about 9.00pm on 27 March 2014, and that Mr Baker, Mr Ward and Mr Hutley had not told the truth about Mr Baker’s departure time in the statements that they had given about the matter and had fabricated their stories. That predisposition appears to have coloured their perspective of everything that followed.

[66] Mr Hutley was the first person interviewed. According to Ms Nell, he was asked whether he had spoken to Mr Baker or Mr Ward about the time Mr Baker left the site, and he said he had not. Mr Kummeling and Ms Nell indicated that a number of matters suggested that, contrary to Mr Hutley’s statement, he and Mr Baker could not have conducted a pit inspection at about 12.30am and that Mr Baker did not leave the site at about 1.00am. Ms Nell’s evidence was that Mr Kummeling said to Mr Hutley that he knew he was lying and that he had to come clean. The meeting concluded with Mr Hutley being told that he should think about the events, and that there would be a further meeting with him later.

[67] Mr Kummeling and Ms Nell then met with Mr Ward. In relation to this meeting, there are some critical difference between the evidence of Mr Kummeling and Ms Nell. Ms Nell said (in her statement of evidence in Mr Ward’s matter):

• Mr Ward was asked whether he had discussed the time of Mr Baker’s departure with Mr Baker or Mr Hutley, and he said he had not;

• clarification was sought from him as to the time when pit inspections took place and the time that Mr Baker left the site;

• she made Mr Ward aware of Mr Baker’s telephone records; and

• Mr Ward did not change his statement, and he was advised at the end of the meeting that his version of events did not match the information they had, and that there would be a further meeting with him.

[68] Mr Kummeling however said that the extent of the information they had in their possession was not revealed by them (which suggests that Mr Baker’s telephone records were not mentioned). He also said in his witness statement that the following occurred:

“Adrian was adamant that Allan had left the site about 1.00am. He said words to the effect that Allan would not lie to him and therefore I asked him why he was so sure that Allan had left the site at 1.00am. Adrian said words to the effect that Allan had told him he had left at 1.00am.”

[69] In cross-examination, Mr Kummeling confirmed that he had a clear recollection of this occurring. When this matter was raised with Ms Nell in cross-examination, she said that she could not recall it. Mr Ward described the meeting as a short one, lasting only about ten minutes. He said he told Mr Kummeling and Ms Nell that he could not recall exactly what time Mr Baker had left the site because the incident in question had occurred some five weeks before, but believed that it was during the early morning of 28 March 2014.

[70] I accept Mr Kummeling’s evidence as to what occurred. He did not attend the second meeting with Mr Ward, so that he could not have confused what happened at the two meetings. His account of what Mr Ward said at this meeting was quite different to the responses he described for the meetings with Mr Hutley and Mr Baker, and it is clear that he had a distinct recollection of the aspects of the meeting he described.

[71] Ms Nell’s description of Mr Ward’s responses, by contrast, are very similar to her description of Mr Hutley’s response at his first meeting. I consider that it is likely that Ms Nell has conflated in her memory Mr Ward’s first interview and Mr Hutley’s. As to her evidence that she asked Mr Ward whether he had discussed the time of Mr Baker’s departure with Mr Baker or Mr Hutley and he said he had not, it may be noted that in the course of cross-examination, she modified her evidence in that she said the question she asked was: “Did you guys discuss your statements with each other and what you put in your statements?” That is a very different question. There is no evidence to suggest that any discussion of this nature occurred between Mr Baker, Mr Ward or Mr Hutley, so that if Ms Nell asked that question and Mr Ward replied “no”, I consider that would have been a truthful answer. I also accept Mr Ward’s evidence that he said that he could not remember the exact time that Mr Baker had left the site.

[72] Some important conclusions arise from these findings concerning Mr Ward’s conduct at this first meeting:

• Mr Ward, far from denying that he had spoken with Mr Baker about his time of departure, volunteered that he had done so. This is inconsistent with there having been a prior secret arrangement between Mr Baker, Mr Hutley and Mr Ward to align their stories.

• Mr Ward effectively made it clear that the source of the 1.00am departure time identified in his statement was not his own memory but Mr Baker’s, and that he relied on his belief that Mr Baker would not lie to him about it.

• Mr Ward had not been confronted with the evidence of Mr Baker’s telephone calls when he made these disclosures.

[73] Mr Kummeling and Ms Nell also met with Mr Baker on 1 May 2014. Mr Baker essentially repeated the version of events described in his statement. Ms Nell accused him of being a liar and fabricating his version of events, and revealed that his account of events was inconsistent with information that they had. He was invited to think about the timeline, and told there would be a further meeting the next day.

[74] There was then a second meeting with Mr Hutley on 1 May 2014. He was taken to the details of Mr Baker’s mobile telephone records, as well as the OCDC report showing that the graders started work at 10.00pm on 27 March 2014. Mr Davis’s differing account of events was also described to him. Mr Hutley said he was clear that Mr Baker had already left when the graders started work, and that if they started work at 10.00pm, then Mr Baker must have left at about 9.00pm. He said that he might have confused events of that night with that of the night before. On that basis, he was asked to make a second statement, which he did later that day. This statement was similar to the first, except that it identified the mine inspection involving himself, Mr Baker and Mr Ward as occurring at about 9.00pm, with Mr Baker leaving to do his paperwork and wash his car when that was completed.

[75] On 2 May 2014 there was a second meeting with Mr Ward, although as earlier stated Mr Messervy attended with Ms Nell instead of Mr Kummeling. It commenced at about the time Mr Ward was due to commence the night shift he was rostered to work on that day. There was a discussion about when the graders started operating, with Ms Nell saying that Mr Ward could have accessed the data on the Thiess computer system which showed the graders starting work at about 10.00pm. Mr Ward said that he thought the inspection of the mine he had carried out with Mr Baker and Mr Hutley had occurred between 9.00pm and 10.00pm, but that he could not recollect any specific details of it. He confirmed that there had only been one pit inspection involving Mr Baker. Ms Nell told him about the information in Mr Baker’s mobile telephone records, but these were not shown to Mr Ward.

[76] Mr Ward also said in his evidence that he told Ms Nell and Mr Messervy that:

• he had no reason to fabricate a story, because it made no difference to the running of the pit whether Mr Baker was there or not because Mr Baker had received permission from Mr Gwynne to leave the site early and had arranged for Mr Hutley to step-up;

• he did not recall the exact time Mr Baker left because it happened five weeks ago and his memory in respect of what appeared to him to be a “non-issue” was vague; and

• he had had personal issues over the five week period since the incident which had required him to take leave the week prior to the meeting in order to take a strong course of medication for symptoms of depression.

[77] Mr Ward was initially told during the meeting that he was going to be stood down. However in his witness statement he said that there was a five minute break in the meeting, and that when the meeting resumed, Ms Nell said: “OK, you are not stood down. We can see that this is a mistake on your part”. Ms Nell did not contradict this in her witness statement. Mr Ward then returned to work. At no stage had it been suggested to him that he was the subject of a disciplinary process or an investigation; as far as he knew, he was being interviewed as part of an investigation into Mr Baker’s conduct.

[78] Mr Baker was also interviewed again on 2 May 2014 by Mr Kummeling and Ms Nell at about 5.15pm (it is not clear whether this was before or after Mr Ward’s interview). There was again a discussion about the events of 27-28 March 2014, and Mr Baker essentially re-iterated what he had said in the first meeting. The mobile telephone records were raised with him, as well as the fact that the graders had started work. The position that Mr Baker expressed was that it didn’t matter what time he left because he had permission from Mr Gwynne to leave early. Ms Nell’s evidence, which I accept, was that she said words to the following effect to Mr Baker during the meeting:

“... it was a stretch of the imagination for him not to remember the time when there was such a difference between a leaving time of around 2.30am and 9.00pm. Particularly as his focus was to get home and have some sleep before his medical appointment. ... you would remember if you had arrived at 4.00am that morning ... or whether he arrived home at 11.00pm that night having left site at 9pm because there’s clearly a huge difference in the amount of sleep he would have been able to have, prior to his appointment.”

[79] The meeting concluded with Mr Baker being informed that Mr Kummeling and Ms Nell would be in touch, and that he remained stood down.

[80] Ms Nell then prepared a written report which was sent to Mr Jorquera on the evening of 2 May 2014 and copied to Mr Kummeling and a Mr Adrian McCowan. The first paragraph of the report read as follows:

“As per our verbal discussion this morning, below summary of the current status regarding the investigation surrounding the allegation that Allan Baker (Mining Supervisor) left site in a manner that does not meet out requirements and expectations. This would be recommended as a termination on the grounds of serious misconduct for Allan Baker. A further recommendation was to also terminate Adrian Ward as he was the senior supervisor on site on the night of question and he was happy to allow a reasonable inexperienced Co-ordinator to run the pit during wet weather which was considered one of the most dangerous times in the Burton pit. This needs to still be determined as an appropriate level of outcome as there are some aspects of the investigation to finalise - see actions going forward below.”

[81] It is apparent that the “verbal discussion” referred to in the report occurred before the second interviews with Mr Baker and Mr Ward, and a view had been formed that they should both be dismissed. The recommendation concerning Mr Ward appears anomalous, since to that point he had not been told that he was subject to any investigation, and the reason given for his proposed dismissal had not been discussed with him. I would infer that this recommendation was not that of Ms Nell herself, but rather that of Mr Jorquera and/or Mr Kummeling, because towards the end of her report she stated her own recommendations as follows:

“Recommendations as we currently stand:

• Termination for Allan Baker - the integrity of his statement is very suspect, trust is broken, serious misconduct. I do believe he left site significantly earlier than permitted and then covered it up.



• Potential suspension??? / FWW for Adrian Ward - senior supervisor in dispatch and during wet weather and most dangerous time in a pit lets an inexperienced co-ordinator manage activities alone down in the pit. I have to admit I am a bit fuzzy on this one and Theo and I do not necessarily agree and it might be because I do not have a full appreciation for all the aspects in the pit. I am happy to discuss and be guided on this one.



• Verbal counselling, potentially written warning for Damiean Hutley”.

[82] On 3 May 2014, at the commencement of his night shift, Mr Ward was required to meet with Mr Messervy. Mr Messervy informed him that “upper management had reviewed the OCE’s statement again and had decided that I was now stood down pending a re-interview in relation to supervision on the night of 27 March 2014”.

The dismissals

[83] Mr Jorquera clearly identified himself as the decision-maker concerning the disciplinary action taken against Mr Baker, Mr Ward and Mr Hutley, although it had been necessary for him to obtain approval for the dismissals higher up Thiess’s management chain. In respect of Mr Baker, he said he agreed with Ms Nell’s recommendation that Mr Baker “should be asked to show cause as to why his employment should not be terminated” (noting that the recommendation was simply to terminate him, consistent with the view formed before the investigation was over). His conclusions about Mr Baker were as follows:

• Mr Baker did not leave the Burton Mine site at 2.30-2.45am, but at about 9.00pm;

• he did not carry out the inspections that he said he carried out and was required to carry out, and he did not document the inspection he did carry out;

• he did not inform the OCE, Mr Davis, where he was;

• Mr Baker lied about the time he left the site;

• he did not tell the truth during the course of the investigation;

• although Mr Hutley was perfectly competent to step-up, he was inexperienced, and the decision to leave him to step-up during wet conditions when a Code Yellow was in place was a poor choice between prudent management of risk and personal convenience;

• leaving the site at 9.00pm did not constitute leaving early (as distinct from leaving the site a few hours before the end of the shift), so that whether Mr Baker had permission or not was not the issue; and

• he had lost trust and confidence in Mr Ward.

[84] Mr Jorquera said that at the show cause meeting that he contemplated, Mr Baker had an opportunity to “retrieve the situation” by retracting his statement, admitting he left the site at 9.00pm and stating his reasons for doing so. His evidence was that if Mr Baker had done this at the show cause meeting, he might not have decided to dismiss him. He would still have gone through Thiess’s Accountability and Personal Conduct (APC) process, and may have only received a final written warning.

[85] In relation to Mr Ward, Mr Jorquera said he did not accept Ms Nell’s recommendation “that he should be given a final written warning”, and determined that he should be terminated “unless he was able to convince Liesl [Nell] and Theo [Kummeling] otherwise”. His reasons were:

• Mr Ward’s statement was false, and he was “lying to cover for his mate”;

• his response was “odd” because he was usually meticulous when it came to recording dates and times, and it was “not acceptable” that he could not recall the time when Mr Baker left because this meant that he did not know when Mr Baker had handed over his responsibilities to Mr Hutley or when crucial inspections were conducted;

• after Mr Baker left, Mr Ward was the next senior person on site, and he should have swapped places with Mr Hutley rather than let the less experienced co-ordinator to go on site and get things back up and running;

• Mr Ward had been given several opportunities to tell the truth and did not;

• Mr Ward had impeded the investigation; and

• Mr Jorquera had lost trust and confidence in him.

[86] Mr Jorquera does not seem to have been made aware of Mr Ward’s personal issues which required him to take strong anti-depression medication shortly before the commencement of the investigation process.

[87] A different course was taken with Mr Hutley. Mr Jorquera said that his position was different because he was placed in the position he was on 27-28 March by two experienced Supervisors, that he was inexperienced and influenced by his superiors, and that he “eventually told the truth”.

[88] Thiess’s APC process involved the completion of an “Accountability and Personal Conduct Toolkit”. This was a form which required an assessment of an employee’s “Behaviour, Action, Breach or Unsatisfactory Performance” on the basis of five criteria: intent, knowledge, mitigating circumstances, severity/potential and standard of direction/instruction. Culpability under each criterion was to be given one out of four possible grades, with each grade attracting specified points. A total score was then produced, and a table in the toolkit then set out a guideline for the action required. Thus, for example, a high score of 17-18 led to a termination or suspension, a score of 15-16 led to a final written warning, and lower scores led to less serious penalties.

[89] Meetings with Mr Baker and Mr Ward were arranged to be held on 8 May 2014 at Thiess’s office in Mackay. Prior to the meetings, Ms Nell removed the personal belongings of Mr Baker and Mr Ward from their camp accommodation at the Burton Mine, placed them in plastic garbage bags, and transported them in her vehicle to the Thiess office in Mackay.

[90] The first meeting was with Mr Baker. Ms Nell and Mr Kummeling attended on behalf of Thiess. Mr Baker brought his wife to the meeting to act as his support person. He had been told by Ms Nell in advance that the meeting was a disciplinary one and would involve going through the APC process, but he was not told that he would be required to show cause as to why he should not be dismissed. Ms Nell outlined to Mr Baker the conclusions reached as a result of the investigation, and some additional questions were asked. Mr Baker reiterated that he had permission to leave early, that the inspection reports were on the computer system, and that he had not rehearsed the contents of his statement in the matter with Mr Ward and Mr Hutley but had merely checked his recollection against theirs. Ms Nell then warned him that “it was a very serious incident and he could be terminated, and that he needed to convince me that the outcome should be different”. As Mr Kummeling and Ms Nell determined that Mr Baker had not provided any “new information”, they completed the APC Toolkit. Mr Baker was scored at 17. He was then advised that his employment was terminated with immediate effect on the basis of serious misconduct. They did not revert to Mr Jorquera before announcing this. Mr Baker then collected his personal belongings from Ms Nell’s vehicle and left.

[91] Mr Ward was next. He attended with a support person, Mr Don Moxham. Ms Nell informed him that the investigation had found that he had colluded with Mr Baker to cover up Mr Baker’s early departure from the site, and had not told the truth during the investigation. Ms Nell also said that Mr Ward could have checked when the equipment (that is, the graders) was running, but had chosen not to do this. Mr Kummeling also emphasised that as the senior employee on site he “expected him to take control of the situation, rather than let an inexperienced coordinator commence start-up in adverse conditions”. Mr Ward apparently gave little response to this: he said in his evidence, and I accept, that he was so shocked at his impending termination that he “switched off for the majority of the meeting”. On the basis that Mr Ward had given no new information, and after a short break, Mr Ward was informed that his employment was terminated. There was, again, no reversion to Mr Jorquera. Mr Ward was allowed to collect his belongings from the back of Ms Nell’s vehicle and depart. Curiously the APC Toolkit was never completed by Ms Nell and Mr Kummeling, and accordingly Mr Ward’s conduct was never scored in accordance with the established APC process.

[92] At a date which was not clearly identified in the evidence, Ms Nell and Mr Kummeling had a further meeting with Mr Hutley. He was informed that he was demoted to the position of Operator, and was given a final written warning.

Events since the dismissals

[93] Mr Baker obtained alternative employment as a casual Plant Operator with BRW Transport & Quarries Pty Ltd in June 2014, and was still in that employment as at the date of the hearing. He works approximately 50 hours per week and earns about $1000.00 gross per week.

[94] Mr Ward obtained alternative employment with a mining contractor, One Key Resources, in June 2014. He worked for this business as a casual Operator at the Capcoal Mine, and was paid $44.00 per hour gross. He resigned from this employment on 15 August 2014, and then commenced with another mining contractor named Workpac on 20 August 2014. Workpac employed Mr Ward as an Operator on a casual basis at the Hail Creek Open Cut Coal Mine on a pay rate of $49.00 per hour gross. Mr Ward remained in that employment at the time of the hearing.

[95] In August 2014 Thiess made approximately 350 positions at the Burton Mine redundant. Mr Hutley was one of the employees who were retrenched.

Whether Mr Baker was unfairly dismissed

[96] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in relation to Mr Baker’s application in turn below.

Paragraph 387(a)

[97] I consider that there was a valid reason for Mr Baker’s dismissal, in two respects. Firstly, Mr Baker left the Burton Mine site on 27 March 2014 without proper permission. I have previously found that the permission which Mr Baker obtained from Mr Gwynne was that he could leave early provided that he had arranged coverage and had done everything he had to do. I do not consider that on any reasonable view leaving at about 9.00pm on 27 March 2014, when Mr Baker’s normal finishing time would have been about 6.30am on 28 March 2014, could constitute “leaving early”. This departure time meant that Mr Baker worked less than a quarter of the shift he was rostered to work. Mr Baker’s request to Mr Gwynne to leave early did not, in that context, represent an honest statement of his intentions. I have not accepted Mr Gwynne’s evidence that the permission was requested and given by reference to a departure time of 4.00am, but I do accept that 4.00am would represent a reasonable approximation of the timeframe for “leaving early” ahead of a normal finishing time of about 6.30pm and represents the likely way in which Mr Gwynne would have comprehended Mr Baker’s request. Nor, to be clear, do I think this was a case of Mr Baker and Mr Gwynne being at cross-purposes; I consider that Mr Baker well understood that permission to leave at 9.00pm or thereabouts would not have been granted if it had been requested in those terms.

[98] Mr Gwynne’s proviso that Mr Baker do everything he had to do before leaving the Burton Mine site confirms the position in that respect. Mr Baker, as the Field Supervisor, was required to physically conduct three inspections of the site each shift, and then document each of those inspections in three different reports. That was an essential part of what he had to do each shift. It is reasonably apparent that in requiring Mr Baker to do everything he had to do before leaving, Mr Gwynne must have had in mind that Mr Baker would stay long enough on the site to perform the fundamental requirements of his position. It could never have been the case that Mr Baker could have performed those tasks and left as early as he did. That supports the conclusion that the permission granted by Mr Gwynne could not reasonably have been understood, and was not in fact understood, as allowing a departure as early as 9.00pm.

[99] Mr Baker’s response to this - that Mr Hutley, as step-up Supervisor, was covering for him in the performance of these tasks - does not withstand analysis. Although the terms of Mr Gwynne’s permission required him to obtain coverage, and Mr Hutley was identified as the person who would provide such coverage, it nonetheless remained the case that Mr Gwynne required Mr Baker himself, not the person who was covering for him, to do everything that had to be done before he left. In any case, Mr Baker did not even complete the work he could have completed before he left. As I have found, he failed even to complete the three reports documenting the one site inspection which he actually carried out.

[100] Secondly, Mr Baker did not tell the truth about the time of his departure in the statement he provided to Thiess about the incident or in the interviews that were conducted about it. I am comfortably satisfied that this was not simply a failure of recollection on his part. Although he was not first asked about the incident until about four and a half weeks after it occurred, the difference between what he described as happening and what actually happened is too great to be explained by a failure of memory. I accept as correct the position put by Ms Nell to Mr Baker at the 2 May 2014 meeting which I have quoted above. The actual 9.00pm departure time allowed Mr Baker to return home and have a full night’s sleep before he attended his medical appointment. However, the 2.30-2.45am departure time alleged by Mr Baker would, taking into account the two-hour drive home and his evidence that he awoke at about 6.30am, have allowed two hours’ sleep at the very most. I conclude that Mr Baker would have been able to recall which it was, notwithstanding the passage of time. Further, Mr Baker was never at any time able to recount a credible timeline of events which could fill the period from the start of shift until 2.30-2.45am, demonstrating that he was dissimulating about the matter. Persistent dishonesty from so senior an employee about such a significant matter provided a reasonable basis for Mr Baker’s dismissal.

[101] For completeness, it is necessary for me to deal with a submission made by Mr Baker that Thiess management knew at the time Mr Baker was dismissed that a large numbers of redundancies were impending, and that the real reason for the dismissal was to avoid having to make Mr Baker redundant and pay him redundancy pay. It is sufficient to dispose of this submission to say that there was no evidence to support it.

Paragraphs 387(b) and (c)

[102] Mr Baker was, in formal terms, notified at the 8 May 2014 meeting in Mackay of the reason for his dismissal prior to being informed that he was to be dismissed, and given an opportunity to respond. However, I do not consider that the 8 May 2014 meeting was, as a matter of substance rather than form, a genuine attempt to afford procedural fairness to Mr Baker. The decision to dismiss him had already been made by Mr Jorquera and approved higher-up in the Thiess organisation. Mr Baker’s belongings had already been collected from the Burton Mine site to be given to him upon communication of the dismissal decision. Given the conclusions that Mr Jorquera had formed about Mr Baker’s conduct, there was never any realistic possibility that there was anything that Mr Baker could say to alter the position. The fact that Ms Nell and Mr Kummeling did not need to refer back to Mr Jorquera - the person advanced as the decision-maker in the proceedings - before informing Mr Baker of his dismissal demonstrates that the decision had been made prior to the 8 May 2014 meeting. The score of 17 produced by the completion of the APC Toolkit by Ms Nell and Mr Kummeling at the meeting did not itself require dismissal, since the APC Toolkit as earlier discussed allowed for suspension as an alternative option for such a score. The fact that this alternative was not considered at the 8 May 2014 meeting further demonstrates that the decision to dismiss had already been made by Mr Jorquera and was never going to change.

Paragraph 387(d)

[103] Mr Baker was not prevented from bringing a support person of his choice to the meeting on 8 May 2014 at which he was dismissed.

Paragraph 387(e)

[104] Mr Baker’s dismissal was on the basis of serious misconduct, not unsatisfactory performance, so the issue of prior warnings does not arise.

Paragraphs 387(f) and (g)

[105] Thiess is a business of substantial size, and has dedicated human resources management specialists and expertise. There is no reason therefore why appropriate procedures in effecting Mr Baker’s dismissal which afforded him procedural fairness could not have been followed.

Paragraph 387(h)

[106] There are a number of relevant factors which, considered alone, would weigh in favour of a finding that Mr Baker’s dismissal was harsh, unjust or unreasonable. These are his length of service, his unblemished record prior to the incident which caused his dismissal, the fact that he was denied procedural fairness in the dismissal process, the very significant loss of income he has suffered as a result of his dismissal, and the diminished prospects of him obtaining permanent employment in the coal mining industry because of the current downturn in that industry.

[107] If Mr Baker had simply been a base-level employee, these factors might have caused me to conclude that dismissal was too harsh a sanction for a single instance of absenteeism. However, Mr Baker was the Field Supervisor. He was a highly paid employee, and bore important responsibilities that were commensurate with his salary. He was the most senior person on site, and had prime responsibility for the safe management of the Burton Mine, during the night shift of 27-28 March 2014. The fact that during that shift the Burton Mine went through the difficult process of transitioning from wet conditions with a complete stoppage of production and a Code Yellow in place at the beginning of the shift to an almost full resumption of production at the end of the shift made his safety management responsibilities all the more critical. By leaving his shift after only three hours and by not performing his fundamental responsibilities as the Field Supervisor, Mr Baker abrogated those responsibilities. His subsequent dishonesty about this incident constituted further conduct that was incompatible with the senior position which he held.

Conclusion

[108] I conclude that Mr Baker’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.

Whether Mr Ward was unfairly dismissed

[109] The matters identified in s.387 are dealt with in relation to Mr Ward’s application in turn below.

Paragraph 387(a)

[110] The reason for dismissal given in Mr Ward’s termination letter, and relied on at the hearing, was that he had provided “falsified statements” and been “less than truthful” in the course of the investigation concerning Mr Baker’s departure from the site on 27 March 2014. I am satisfied that Mr Ward was not in fact dishonest during the course of the investigation. It is certainly the case that he identified a time of departure (1.00am) in the written statement he prepared at Mr Messervy’s request on 30 April 2014 that was incorrect, but I do not consider that in doing so Mr Ward was being deliberately untruthful in order to cover up for Mr Baker. My reasons for this conclusion are as follows:

(1) Unlike Mr Baker, Mr Ward was not the person directly involved in the night’s events. He was not present when Mr Gwynne was requested and gave permission for Mr Baker to leave the site early. He continued to work the entire shift performing his duties as normal. Although he was present when Mr Baker left the Dispatch Office to wash his car, he did not actually see him leave the site. There was no particular reason why, four and a half weeks after the event, he could be expected to have a clear recollection of the timing of the night’s events.

(2) Mr Ward identified that in the period between the night shift of 27-28 March 2014 and 30 April 2014, when he was first asked about the incident, he had had personal issues which required him to take strong anti-depressant medication and take time off work, and said this affected his capacity to remember what had happened. He was not challenged in cross-examination about this. It is clear that, as at 30 April 2014, what happened on 27-28 March 2014 was very far from the forefront of Mr Ward’s mind.

(3) Mr Ward’s evidence was that, when he prepared his statement on 30 April 2014, he could not remember exactly when Mr Baker had left the site. He asked Mr Baker, who told him that it was about 1.00am. Mr Ward agreed with this and put it in his statement, presumably on the basis that he assumed that Mr Baker had an accurate recollection and was telling him the truth. When he was asked to prepare the statement, Mr Messervy did not tell him that he was prohibited from talking to anyone else about the matter. Thiess’s assumption that any conversation between Mr Ward and Mr Baker about the time of departure necessarily meant that Mr Ward had agreed to fabricate a story to support Mr Baker was not supported by the evidence.

(4) At the first meeting on 1 May 2014, the day after Mr Ward made his statement, Mr Ward clearly disclosed (in a meeting that only lasted about ten minutes) that it was Mr Baker who was the source of the 1.00am time in his statement, and that it was his belief that Mr Baker would not lie to him that gave him some confidence that Mr Baker’s departure time was about 1.00am. This disclosure cannot be reconciled with Thiess’s proposition that Mr Ward was deliberately concealing, in concert with Mr Baker, the true time of departure.

(5) At the second meeting on 2 May 2014, Mr Ward further made it clear that the personal issues earlier referred to, the fact that the incident was five weeks ago, and that he had regarded it as a “non-issue” at the time, meant that his memory was vague about the matter. I consider that to be both a reasonable and truthful proposition, and there was no reason why it should not have been accepted by Thiess.

[111] This is not to say that Mr Ward’s conduct during the investigation was beyond criticism. That is a matter to which I will return later in this decision. But any shortcomings in his conduct were not of such a nature as to constitute a valid reason for the ultimate step of dismissal.

[112] There appears to have been two other reasons for Mr Ward’s dismissal which featured in Mr Jorquera’s decision-making, although they were not stated in the termination letter and were only tentatively relied upon by Thiess at the hearing if at all. The first was that it was “not acceptable” that Mr Ward could not recall the time when Mr Baker left because this meant that he did not know when Mr Baker had handed over his responsibilities to Mr Hutley or when crucial inspections were conducted. This is, with respect to Mr Jorquera, a non sequitur. The fact that Mr Ward could not remember on 30 April 2014 or afterwards when Mr Baker left the site does not mean that he did not know this on 27 March 2014. The evidence demonstrated that Mr Ward knew roughly when Mr Baker left, because Mr Baker saw him at the Dispatch Office to say goodbye and tell him he was going to wash his vehicle. The arrangement for Mr Hutley to step-up in his place, and Mr Gwynne’s approval of this, had already been communicated to him by this time.

[113] The other reason was that after Mr Baker left the site, Mr Ward as the senior remaining person at the Burton Mine should have swapped places with Mr Hutley and stepped in as Field Supervisor, rather than leave the less experienced Mr Hutley with the responsibility of overseeing the resumption of production at the Burton Mine. Because this concern was never actually raised with Mr Ward prior to his dismissal, he was never able to give the response to it which he gave at the hearing, namely that Mr Hutley had not been trained to do the data entry required of the Dispatch Supervisor’s position, so that a swap was not possible. This response was not challenged or contradicted by Thiess at the hearing. Further, although Mr Hutley was undoubtedly less experienced than Mr Baker or Mr Ward in discharging the role of a Field Supervisor, he had filled this role for entire shifts competently before 27 March 2014 and continued to do so afterwards prior to his demotion. There was therefore nothing inherently alarming about Mr Hutley stepping-up to replace Mr Baker. Accordingly these additional matters did not, either considered alone or cumulatively, constitute a valid reason for Mr Ward’s dismissal.

[114] I do not consider that there was a valid reason for Mr Ward’s dismissal.

Paragraphs 387(b) and (c)

[115] There was a failure to provide procedural fairness to Mr Ward that was more egregious than in the case of Mr Baker. Mr Ward was, in formal terms, told of the official reason for his dismissal - namely that he had been dishonest in the investigation process - prior to being dismissed, and was given an opportunity to respond to this. For the same reasons as already stated in relation to Mr Baker, Mr Ward was not afforded procedural fairness in substance, because the decision to dismiss him had already been taken by Mr Jorquera before the 8 May 2014 meeting and was not going to change. That was all the clearer in Mr Ward’s case as demonstrated by the fact that Ms Nell and Mr Kummeling did not bother to fill in the APC Toolkit. Additionally, and as earlier discussed in relation to s.387(a), there were two other reasons why Mr Jorquera decided to dismiss Mr Ward which were never raised with him during the 8 May 2014 meeting, nor at any earlier stage in the investigation process.

Paragraph 387(d)

[116] Mr Ward was not prevented from bringing a support person of his choice to the meeting on 8 May 2014 at which he was dismissed.

Paragraph 387(e)

[117] Mr Ward was not dismissed on the basis of unsatisfactory performance, so the issue of prior warnings does not arise.

Paragraphs 387(f) and (g)

[118] Thiess is a business of substantial size, and has dedicated human resources management specialists and expertise. There is no reason therefore why appropriate procedures in effecting Mr Ward’s dismissal which afforded him procedural fairness could not have been followed.

Paragraph 387(h)

[119] Mr Ward’s nine years of service, his good employment record, the significant financial loss he has suffered as a result of his dismissal, and the fact that he has only been able to secure casual alternative employment, are relevant matters which weigh in favour of a conclusion that his dismissal was harsh, unjust or unreasonable. I also consider it relevant that Thiess’s own APC procedures were not followed in relation to its dismissal of Mr Ward.

Conclusion

[120] I conclude that Mr Ward’s dismissal was harsh, unjust and unreasonable. There was no valid reason for his dismissal, he was in a substantive sense denied procedural fairness, he had a good employment record during a period of service in excess of nine years, the economic consequences of his dismissal were serious, and Thiess did not follow its own established procedures concerning disciplinary action in dismissing Mr Ward.

Mr Ward - Remedy

[121] Mr Ward seeks the remedy of an order for reinstatement to his former employment with Thiess under s.391 of the Act, together with ancillary orders to maintain the continuity of his employment and to compensate him for the remuneration he has lost.

[122] Reinstatement is the primary remedy provided for in respect of unfair dismissals under the Act, in the sense that there must be a finding that reinstatement is inappropriate before any power exists to make an order for compensation. 2 Accordingly, in respect of remedy, the primary issue which must be considered is whether it would be appropriate to make an order for Mr Ward’s reinstatement.

[123] Thiess submitted that Mr Ward should not be reinstated because there had been a loss of trust and confidence in him. However, as is clear from Mr Jorquera’s evidence, that loss of trust and confidence was founded on the view that Mr Ward had been dishonest during the investigation process into Mr Baker’s departure from the site on 27 March 2014 in order to cover up for Mr Baker. I have already found that Mr Baker was not in fact dishonest. In the light of that finding, there is no objective basis for Thiess’s case against reinstatement. The position here is the same as that described by the Industrial Relations Court Full Court (Wilcox CJ, Marshall and North JJ) in Perkins v Grace Worldwide (Aust) Pty Ltd 3:

“It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[124] Thiess did not submit that reinstatement would be impracticable for any business or operational reason. Accordingly I consider that reinstatement is the appropriate remedy, and I will order that Mr Ward be reinstated to the position in which he was employed by Thiess immediately before his dismissal. I also consider it appropriate to make an order under s.391(2) to maintain the continuity of Mr Ward’s employment and the period of his continuous service with Thiess.

[125] However I decline to make any order for lost remuneration under s.391(3). Although I have found that there was no valid reason for Mr Ward’s dismissal, I consider that Mr Ward’s conduct in the investigation process was less than satisfactory. Although he was not dishonest, I consider that he took insufficient care to ensure that the information he gave in his statement on 30 April 2014 and in the subsequent interviews was accurate. While accepting that Mr Ward could not at that time actually remember when Mr Baker left the Burton Mine site, nonetheless if he had checked the OCDC report and reminded himself when the graders started working it is likely that he would have been able to give a much more accurate estimate of the time of Mr Baker’s departure. Instead he simply asked Mr Baker what the departure time was and accepted what he said. This was foolish and naive, given that he knew that Mr Baker had been stood down and therefore that Thiess was treating the matter very seriously. Mr Ward’s conduct in this respect may have called for some form of disciplinary action short of dismissal, including suspension. My refusal to award Mr Ward the lost remuneration he has suffered since his dismissal is intended to acknowledge this and to signal to Mr Ward that he was not entirely free of responsibility in the whole affair.

Orders

[126] In matter U2014/7515, the application is dismissed.

[127] In matter U2014/7518, a separate order will be issued reinstating Mr Ward to the position in which he was employed by Thiess immediately before his dismissal.

VICE PRESIDENT

Appearances:

A. Forsyth of counsel with J. Short solicitor for the applicants.

G. Sheahan of counsel with C. Brattey solicitor for the respondent.

Hearing details:

2014.

Mackay:

7-10 October

 1   Transcript PNs 1509-1512

 2   Melanie Millington v Traders International Pty Ltd[2014] FWCFB 888 at [66]

 3 (1997) 72 IR 186 at 191-2

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558019>