Australian Maritime Officers' Union, The v Newcastle Port Corporation T/A Port Authority of New South Wales - [2023] FWC 2654

[2023] FWC 2654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australian Maritime Officers’ Union, The
v

Newcastle Port Corporation T/A Port Authority of New South Wales

(C2023/2136)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 12 OCTOBER 2023

Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement – final warning given to employee.

Introduction and background

The Australian Maritime Officers’ Union (AMOU) and the Newcastle Port Corporation t/a Port Authority of New South Wales (Port Authority) are in dispute about a final warning (Warning) issued to Mr Timothy Delves by letter dated 5 January 2023 (Dispute).

Mr Delves is a member of the AMOU. He is employed by the Port Authority as a Marine Pilot, conducting the navigation of commercial vessels within the compulsory pilotage areas of the port of Newcastle.

On 19 April 2023, the AMOU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute.

The Port Authority of New South Wales Marine Pilots Agreement – Newcastle 2019 -2023 (Agreement) applied to Mr Delves and the Port Authority at the time the final warning was issued to Mr Delves and when the Dispute arose.

I conducted a hearing in relation to the Dispute on 14 August 2023. The AMOU adduced evidence from Mr Timothy Delves, Marine Pilot, and Mr Richard Rouse, Marine Pilot. The Port Authority adduced evidence from Mr Peter Ernst, Head of Regional Ports, Mr Daniel Marks, Wharf Officer, and Ms Lesley Phillips, Senior Business Partner – People & Culture.

The Warning

The Warning is in the following terms:

“Final Warning
I am writing to you to inform you of the outcome of the findings of the investigation regarding the complaints raised against you by Mr Senczuk Krysztof, Master of MV Woodgate and Mr Daniel Marks, Wharf Officer, Port of Newcastle.
You were invited to a meeting on 15 December 2022 providing you with an opportunity to respond and provide feedback to allegations listed in a letter addressed to you on 12 December 2022. These concerns raised allegations of possible breaches of Port Authority’s Code of Conduct and Port Authority Values.
I can confirm a fact-finding investigation was conducted into the matters, including interviewing a key witness and reviewing VTS recordings and telephone recordings related to the complaints. I can now confirm the fact-finding investigation is complete.
The findings of the investigation are outlined below.

Allegation Finding

Allegation 1 – MV Woodgate

As you boarded the vessel, you were shouting at the deck crew, in particular, at the second officer who asked you if he could secure the gangway.

Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.

Allegation 2 – MV Woodgate

When you were with the Master on the bridge, you were raising your voice to him. You appeared annoyed that the crew were not wearing their face masks.

Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.

Allegation 3 – MV Woodgate

Whilst on the bridge with the Master, you asked about the operation of the horn and appeared to become annoyed and shouted at the Master and the crew when the Master deployed the horn to display its correct operation.

Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.

Allegation 4 – MV Woodgate

Whilst on the bridge, you laughed mockingly and in a condescending tone at the third officer when he provided his response to your query regarding the gyro compass error.

Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.

Allegation 5 – Port of Newcastle

1 December 2022 at approximately 0230. the vessel Global Bonanza was berthing at K8 piloted by you. The wharf officer was aware that the midship draught marks were going to be close to a fender once the vessel was in the marked position. Having worked alongside you on previous occasions, the wharf officer is of the opinion you typically do not acknowledge to the wharf officer when the ship is in position or ask if the wharf officers are happy with the bridge position. Therefore, the wharf officer felt it was necessary to make you aware of the proximity of the mid ship draught marks to the fender as they were unaware of when you are in the final position. The wharf officer called you on the radio when the vessel was along side and touching all fenders but with no lines ashore. His message was short and precise "Pilot wharf, midships is 2M fwd of the fender and closing". There was no immediate communication at the time between you and the tugs. You replied, to the effect, “The ship will stay where it is once on the mark". At 0300 the vessel was all fast and the wharf officer greeted you at the foot of the gangway. You put your hand on his shoulder and in a condescending tone said “You are obviously new and you should know that you never talk to me unless talked to first. l don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles".

Partially substantiated.

The two-way radio audio recordings show no evidence of the communication between the wharf officer, Mr Marks and Mr Delves. However, Mr Delves admitted he took Mr Marks aside after he disembarked & had a conversation relating to his communication of “radio silence on the wharf". Mr Delves admitted saying, “You called me when I was about to berth. l need you to refrain from calling the pilot until the pilot calls you". Mr Delves admitted to stating "he must be new". to placing his hand on Mr Marks’ shoulder at the end of the conversation & to discussing 'training',

Mr Delves denied making the statement, "I don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles" although it must be noted that both parties’ version of events referenced ‘training’.

After careful consideration of the facts, I have determined that your behaviour is in breach of Port Authority’s Code of Conduct & Values, specifically:

Code of Conduct
·     treat people fairly, courteously and with respect and dignity;
·     I collaborate with our colleagues and where appropriate, our customers and stakeholders;
·     we share the responsibility of creating a safe and healthy workplace;

Values
Care: We care for each other, our customers, stakeholders and communities. We care about what we do and about getting the right outcomes.
Accountability: We take responsibility for our actions and are accountable to deliver.
Integrity: We are open, honest and act with integrity.
Collaboration: We actively exchange ideas and collaborate with others internally and externally to achieve the best outcomes.
A reasonable person would have considered the interaction between yourself and Mr Marks to be intimidating. You removed him to a separate area to speak, did not remove your mask or flight helmet and even though you admitted you believed Mr Marks ‘to be new’, did not introduce yourself nor ask his name. I consider your admission that Mr Marks ‘looked anxious & fearful’ & ‘was shaking’, to be of great concern as it would be reasonable to ascertain Mr Marks was clearly suffering emotionally and physically. It is my expectation that you would have used sound judgement and ceased the conversation with Mr Marks, however you chose to continue, having little consideration for Mr Marks’ emotional well being. Further, at your own admission ‘you gave Mr Marks ‘two soft pats on the shoulder’. I consider your actions to be inappropriate and not in line with my expectation of creating a safe and healthy workplace.
Of particular concern is your admission to contacting a former Newcastle Port Corporation employee to ascertain the identity of Mr Marks. In the absence of a witness statement from the former employee I am not able to determine if a breach of confidentiality occurred, however you were made aware of the confidentiality requirements of the investigation in a telephone call with Mrs Phillips on 12 December 2022 and in the allegation letter, dated the same. I consider your action to be inappropriate.
Although the investigation proved Allegations 1-4 to be unsubstantiated, I can not dismiss the seriousness of the situation. The fact that the Master made a complaint about your behaviour indicates there is enough concern with your communication style to warrant counselling. Port Authority expects its employees to collaborate with all our partners and conduct themselves professionally and respectfully at all times. Your actions did not meet these expectations.
As a result of not complying with Port Authority Code of Conduct Policy and Values, you are receiving a final warning which will be placed on your personnel file.
Should there be any further occurrences, your employment with Port Authority will be reviewed, up to and including termination.
We recognise that this may be a stressful time for you and remind you that the Port Authority Employee Assistance Program is available to you if you require support during this process. The contact number is 1800 554 654, If you have any questions. please do not hesitate to contact me.
Yours sincerely
Peter Ernst
Head of Regional Ports
5 January 2023”

The Dispute

The Dispute was relevantly described in the following way in the application filed by the AMOU in the Commission:

“20.On 20 January 2023, Mr Delves met with Ms Phillips and Mr Ernst and was provided a letter (dated 5 January 2023) advising the outcome of the investigation, to the effect that:

(a) allegations 1, 2, 3 and 4 (concerning the MV Woodgate) were found to be unsubstantiated;

(b) allegation 5 (concerning MV Global Bonanza and interaction with Mr Marks) was found to be partially substantiated (the Finding);

(c) Mr Delves had breached the Respondent’s Code of Conduct & Values;

(d) a final warning would be placed on Mr Delves’ personnel file (Final Warning);

(e) Any “further occurrences” would result in Mr Delves’ employment being reviewed and may result in disciplinary action up to and including termination.

…
22.The Applicant and Mr Delves contend that the Finding and the Final Warning are unjust and unreasonable, and as a consequence should be retracted by the Respondent. The parties are in dispute as to that issue.”

The application filed by the AMOU sought the following relief:

“The Applicant seeks:
1. a determination that the Final Warning was unjust and/or unreasonable;
2. that the respondent be required to:
(a)substitute the Finding with a finding that allegation 5 is not substantiated; and
(b)retract the Final Warning

3. such other relief that the Commission thinks appropriate.”

Jurisdiction

The dispute settlement procedure in clause 15 of the Agreement applies to disputes between the “Port Authority and a Marine Pilot”. If a “matter remains unresolved after” preliminary steps have been undertaken, “then the matter may be referred by either party to the Fair Work Commission for conciliation and/or arbitration”.[1] For completeness, clause 15 in its entirety is set out below:

“15. DISPUTE SETTLEMENT PROCEDURE
Should a dispute exist between Port Authority and a Marine Pilot, including a dispute in connection with the NES, this clause sets out procedures to settle the dispute:
a) An Employee who is party to the dispute may appoint a representative for the purposes of the procedure.
b) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussion between the Employee(s) and the Harbour Master – Newcastle.
c) If the discussions at the workplace level do not resolve the dispute, then the Employee(s) may refer the matter to an elected employee representative who may be an officer of the AMOU for discussion with management.
d) If the matter is still not resolved, then the matter shall be referred to the elected representative, the AMOU, the Chief Operating Officer – Newcastle and a Human Resources representative.
e) If the matter remains unresolved after steps a), b), c), d) above, then the matter may be referred by either party to the Fair Work Commission for conciliation and/or arbitration.
f) Each Party will accept the decision subject to any appeal rights.
g) During steps a) through to e) work will continue on the basis that it was before the dispute commenced.
h) The parties to the dispute may agree to select a Mediator/Facilitator to assist the parties in reaching agreement on the matter, prior to going to the Fair Work Commission.”

Following an unsuccessful conciliation, I issued directions preparing the Dispute for arbitration. In accordance with those directions, the parties agreed on the following questions for arbitration (Questions):

“With reference to the Final Warning dated 5 January 2023 issued to Mr Tim Delves, was it reasonable and just in the circumstances for the Respondent to:
(a) substantiate allegation 5 against Mr Delves; and
(b) issue the disciplinary action of a final warning to Mr Delves.”

There is no dispute between the parties that I have jurisdiction to arbitrate the Dispute under clause 15 of the Agreement.

Preliminary issue – evidence to be considered by the Commission

The nature and extent of the evidence adduced in the hearing before the Commission travelled well beyond the material that was before the Port Authority at the time it decided to issue the Warning to Mr Delves. For example, although the Port Authority had a copy of a short email written by Mr Marks on 1 December 2022 in relation to what he says happened during his interaction with Mr Delves earlier that day,[2] Mr Marks was not interviewed by the Port Authority before it issued the Warning to Mr Delves. Mr Marks did, however, give oral evidence before the Commission, as well as provide a witness statement[3] which was filed and served as part of the Port Authority’s evidentiary material. There is no doubt that the evidence given by Mr Marks orally and in his witness statement was more extensive than his short email written on 1 December 2022. Neither party objected to the evidence adduced from Mr Marks on the basis that it extended beyond that which was available to, and known by, the Port Authority at the time the Warning was issued to Mr Delves.

AMOU’s submissions

Notwithstanding the fact that no objection was taken to the admission of evidence before the Commission that extended beyond that which was available to, and known by, the Port Authority at the time the Warning was issued to Mr Delves, in final closing submissions the AMOU contended that it would be impermissible for the Commission to have regard to any material which was not before the Port Authority at the time it issued the Warning to Mr Delves. In support of this submission, the AMOU relies on the following passage of a decision of Deputy President Asbury (as she then was) in CFMMEU v BHP Coal Pty Ltd (BHP Coal):[4]

“[158] The question for determination in this case, requires me to make a finding as to whether it was reasonable, in all the circumstances, for BHP to conclude that Mr Robertson engaged in the alleged conduct. In its oral submissions, BHP suggested that the question of whether Mr Robertson engaged in the conduct the subject of allegation 2, should be determined based on the material before BHP, when it made the decision to discipline him, and not by the Commission conducting a hearing de novo and making findings based on new or other information. This approach, which is also consistent with the MEU’s submissions, is in my view, correct.”

BHP Coal concerned a warning given to Mr Robertson. The CFMMEU contested the warning on behalf of Mr Robertson and lodged an application in the Commission for it to deal with the dispute pursuant to the dispute resolution procedure in clause 37 of the BMA Enterprise Agreement 2018. The parties agreed that the question for determination by the Commission was as follows:

“Was it reasonable, in all the circumstances, for the Respondent to issue a Level 3 Final Warning to Mr Robertson?”

Clause 37 of the BMA Enterprise Agreement governs a wide range of disputes, including disputes “arising in the course of employment”. Where such disputes have been dealt with in accordance with the preliminary steps set out in clause 37, the Commission is empowered to “conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter”.[5]

The AMOU submits that the scope of the Commission’s jurisdiction to arbitrate a dispute by agreement is limited to the terms of the relevant enterprise agreement, as explained by the Full Court of the Federal Court in Endeavour Energy v CEPU (Endeavour Energy):[6]

“… s 739 is concerned with the role of the Commission under a dispute-settling term in an enterprise agreement. Although the grammatical reading of subs (3) presents difficulties, the Explanatory Memorandum to the relevant Bill makes the meaning clear:
Where such a term requires or allows [the Commission] to deal with a dispute, it can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 (see subclause 595(4)), unless those powers are limited by the term (subclause 739(3)).

That is to say, if the term places limits on the powers that may be exercised by the Commission in settling disputes, the Commission must remain within those limits.” [emphasis added]

The AMOU submits that, applying the principles explained by the Full Court in Endeavour Energy to the present matter, clause 15 of the Agreement provides that “the matter may be referred by either party to the Fair Work Commission for conciliation and/or arbitration”; therefore, the Commission’s power is limited to the terms of that referral, being the Questions for arbitration as agreed by the parties.

It is contended by the AMOU that, properly construed, the Questions direct the Commission’s attention to the decision by the Port Authority to partially substantiate allegation 5 against Mr Delves, and the decision to impose the Warning. The Commission is, so the AMOU contends, effectively focused on the Port Authority’s decision-making and determining whether to interfere in that decision making; it is not conducting that process itself afresh. The reference to “in the circumstances” in the Questions is, so the AMOU submits, a reference to those circumstances that were before the relevant decision maker at the time of making the decision. It is submitted by the AMOU that the Questions do not, and should not, call for a consideration of whether, based on new material led in the hearing, the Warning is fair or just.

The AMOU also relies on the decision of the Full Bench of the Commission in CFMMEU v Wagstaff[7] (Wagstaff). The applicable enterprise agreement in Wagstaff empowered the Commission to “review” a site allowance determined by the Victorian Building Industry Disputes Panel.

The AMOU also relies on other decisions of the Commission where the applicable enterprise agreement empowered the Commission to “review” a decision made by or on behalf of an employer: Gonzalez v ACT Community Services Directorate;[8] Towns v Community Services Directorate ACT Government;[9] and Brewer v AR.[10]

The AMOU acknowledges that in the present matter the parties have not conferred on the Commission the power to conduct a “review”, however it says they have agreed to precise Questions for arbitration which direct the Commission’s focus on the decisions made by the Port Authority. The AMOU submits that the inquiry must be directed to the material that was before the decision-maker, Mr Ernst, and the process by which he arrived at that decision. In that context, it is submitted that there would seem to be very little if any distinction between this case and one requiring a “review”.

The AMOU submits that the question before the Commission is not: What occurred in the incident in question, should disciplinary action be imposed on Mr Delves for what occurred in light of the evidence led by the parties in the hearing, and if so what action?

The AMOU’s primary submission is that the referral for the Commission to conduct dispute resolution, brought about by the Questions, either:

(a)precludes the Commission from accepting new evidence as that evidence could not be relevant; or
(b)in the alternative, as a matter of discretion, means it is not appropriate for the Commission to consider that evidence.

Port Authority’s submissions

The Port Authority relies on the following passage from Australian Federated Union of Locomotive Enginemen v State Rail Authority[11] (XPT Case):

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. The ACTU submitted to us that we should apply the test as to whether the demand of the employer was just and equitable having regard to all the circumstances. It is our view that under any given set of facts the test suggested by the ACTU would not lead to a different decision from the test which the Commission has applied over time. Accordingly in reaching our decision we have approached the matter from the point of view of making a judgement whether the request of the SRA that the XPT be manned by one man is unjust or unreasonable.”

The Port Authority submits that there is nothing to suggest that the Commission is limited in what it should consider when determining whether or not to interfere with its decision to issue the Warning. Rather to the contrary, according to the principles in the XPT Case, the Port Authority contends that the Commission is to “examine all the facts” and have regarding to “all the circumstances”.

It is submitted by the Port Authority that the decisions relied on by the AMOU can be distinguished on the basis that they relate to dispute resolution procedures which limit the role of the Commission to “reviewing” a decision made by or on behalf of an employer.

The Port Authority refers to the role of the Commission when undertaking a private arbitration of a dispute pursuant to the authority conferred on the Commission by the parties in an enterprise agreement. The Port Authority submits that s 739 of the Act is concerned with the role of the Commission under a dispute settling term in an enterprise agreement. It is submitted that the Explanatory Memorandum assists when considering the meaning of s 739, and provides that “Where such a term requires or allows [the Commission] to deal with a dispute, it can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 (see subclause 595(4)), unless those powers are limited by the term (subclause 739(3)). FWA has general powers under clause 590 to inform itself as it sees fit, including the power to require parties to attend, conduct a conference and take evidence.”

Further, the Port Authority relies on s 595(4) of the Act, which provides that “In dealing with a dispute, the FWC may exercise any powers it has under this Sub-division.” The Commission can therefore, so the Port Authority submits, inform itself as it considers appropriate (s 590), is not bound by the rules of evidence and procedures (s 591).

The Port Authority submits that the test under s 739 is whether the dispute settlement procedure in the Agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. It is submitted that there is no dispute between the parties in the current matter, that the Commission has the power to deal with the current dispute by arbitration.

The Port Authority submits that when exercising its powers of private arbitration the powers and functions available to the Commission under ss 577, 578, 590, 595, 677 and 678 are available to the Commission unless, the terms of the relevant enterprise agreement specify otherwise.

The Port Authority submits that there is nothing in the dispute resolution procedure that limits or regulates the matters or evidence that the Commission can consider. It is also submitted by the Port Authority that there is nothing in the Questions that specifically limits the matters that the Commission can consider. It is therefore submitted by the Port Authority that the Commission is able to determine what it will consider when determining the matters in dispute before it in accordance with s 739 of the Act, and its powers under Sub-division B of Division 3 of Part 5-1 of the Act.

Notwithstanding its submissions that the Commission “is able to determine what it will consider when determining the matters in dispute before it” and “the Commission is to ‘examine all the facts’ and have regarding to ‘all the circumstances’”, the Port Authority goes on to make the following submissions which are, in various parts, inconsistent with these submissions:

(a)It is submitted that in applying the applicable principles to answer the Questions, the evidence that the Commission will consider and rely upon will shift depending on the principles being applied, the question the Commission is answering and the role the Commission is undertaking. That is, it is submitted that in applying the principles in [157] of the BHP Coal decision, to answer the Questions put by the parties, it is open to the Commission to determine that it will consider the evidence before the decision maker when applying the principles to answer the first part of the Question, and the broader evidence before the Commission when answering the second part of the Question.
(b)When reaching a conclusion as to the conduct that occurred and what it involved, the Port Authority submits that the Commission should consider that information that was before the investigator when that person made factual findings. It is submitted that if the Commission considered information that was not before the investigator, it would not be acting in accordance with the obligations imposed by ss 577 or 578 of the Act.
(c)The Port Authority says that it is not submitting that in reaching a conclusion as to the conduct that occurred and what it involved, in line with the principles contained in the BHP Coal decision, that the Commission should make different findings. It is submitted that the findings that were made by the investigator were open to her on the basis of the evidence available.
(d)It is also submitted by the Port Authority that when dealing with the second part of the Questions, and the assessment of the reasonableness and justness of the disciplinary action, it is necessary for the Commission to consider that information or evidence that is available regarding the basis on which the decision-maker determined the disciplinary action and the circumstances in which the decision was made. While some of that information may be available from the evidence of the decision-maker, it is also open to the Commission to consider other evidence that is now available that assist the Commission to inform itself as to the reasonableness and justness of the disciplinary action, and whether the disciplinary action is within a range of reasonable responses to the substantiated conduct.
(e)The Port Authority contends that the Commission cannot consider the reasonableness or otherwise of the disciplinary action in a vacuum. In performing is functions, the Commission is required to inform itself of the relevant circumstances. Should the Commission limit itself, in the manner in which it informs itself, or the information or evidence it considers, the Port Authority submits that it risks failing to properly exercise its powers in the determination of the dispute before it.

Consideration

The present issue is not one of jurisdiction. The parties agree, correctly, that the Commission has jurisdiction to arbitrate the Dispute. Such jurisdiction arises from ss 738 and 739 of the Act, together with clause 15 of the Agreement, which governs disputes between the “Port Authority and a Marine Pilot”. Pursuant to clause 15(e) of the Agreement, the “matter [in dispute] may be referred by either party to the Fair Work Commission for conciliation and/or arbitration” if the preliminary steps have been undertaken and the “matter remains unresolved”. The requirements of clause 15(e) of the Agreement have plainly been satisfied in this case.

The issue between the parties is whether the Commission can, or should, have regard to material that was not before the decision-maker in its arbitration of the Dispute.

Because clause 15 of the Agreement allows the Commission to deal with the Dispute, the Commission can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 of the Act, unless those powers are limited by the Agreement.[12] As was explained by the Full Court in Endeavour Energy, if a term in an enterprise agreement “places limits on the powers that may be exercised by the Commission in settling disputes, the Commission must remain within those limits”.

There is no doubt that clause 15 of the Agreement does not place any limitations on the powers that may be exercised by the Commission in arbitrating disputes between the “Port Authority and a Marine Pilot”. Accordingly, the Commission may, for example, “inform itself in relation to any matter before it in such manner as it considers appropriate”,[13] including by holding a hearing,[14] requiring a person to attend before the Commission,[15] or requiring a person to provide copies of documents or records, or to be provide any other information to the Commission.[16]

An unrestricted power to arbitrate a dispute pursuant to a dispute resolution procedure in an enterprise agreement involves the conferral on the decision-maker of a broad discretion.[17] The discretion is to be exercised having regard to the role of the arbitrator to determine to finality all questions of fact and law which arise for determination in the dispute.[18]

Wagstaff and the other cases on which the AMOU relies are distinguishable on the basis that the power conferred on the Commission by the relevant provisions in the applicable enterprise agreements was limited to one of a “review” of a particular decision made by or on behalf of the employer. Even so, in Wagstaff the Full Bench explained (at [38]) that it was a “matter for the Commission to determine what evidence it will receive such as to permit it to discharge its review function. Thus the Commission may choose to admit evidence in the review because, for example, the evidence before the Panel was insufficient to permit the proper resolution of the dispute, or there is a lack of proper record of the evidence before the panel, or the decision of the Panel does not properly resolve the dispute in light of changed circumstances occurring since the decision was issued”. This is a further example of the Commission having a broad discretion to arbitrate a dispute pursuant to a dispute resolution procedure in an enterprise agreement, including admitting new evidence which was not before the original decision-maker, even when the power conferred on the Commission is one of a “review”.

I do not accept the AMOU’s argument that, because clause 15 of the Agreement provides that “the matter may be referred by either party to the Fair Work Commission for conciliation and/or arbitration”, the Commission’s power in the present case is limited to the terms of that referral, being the Questions for arbitration as agreed by the parties. There are two answers to this argument. First, clause 15(e) of the Agreement permits either party to refer “the matter” to the Commission “for conciliation and/or arbitration”. It is apparent as a matter of construction that “the matter” to which reference is made in clause 15(e) of the Agreement is the matter in dispute between the Port Authority and a Marine Pilot. So much is clear from the expression “Should a dispute exist between Port Authority and a Marine Pilot” in the chapeau to clause 15, read together with the procedures in clauses 15(a) to (e), particularly (c) which relevantly provides that:

“If the discussions at the workplace level do not resolve the dispute, then the Employee(s) may refer the matter to an elected employee representative…” [emphasis added]

As is made clear in the application lodged by the AMOU in the Commission,[19] the matter in dispute between the Port Authority and Mr Delves, a Marine Pilot, is the Warning. That is “the matter” which has been referred by the AMOU, on behalf of Mr Delves, to the Commission for “conciliation and/or arbitration”. The agreed Questions are not “the matter”. The Questions were agreed following an unsuccessful conciliation between the parties.

Although it is usually helpful for the parties to agree on questions to be answered by the Commission in an arbitration pursuant to a dispute resolution procedure in an enterprise agreement, the formation of such questions is neither necessary nor binding on the Commission. It is open to the Commission to use its discretion not to answer agreed questions if, for example, they would not resolve the dispute or do not accurately reflect the matter in dispute between the parties.

For the reasons given, I reject the AMOU’s contention that the Commission’s power in the present case is limited to the Questions for arbitration as agreed by the parties.

Secondly, just focusing on the terms of the Questions, they require the Commission to consider whether it was “reasonable and just in the circumstances” [emphasis added] for the Port Authority to substantiate allegation 5 against Mr Delves and issue the disciplinary action of the Warning to Mr Delves. I do not accept the AMOU’s argument that the reference to “in the circumstances” in the Questions is a reference to those circumstances that were before the relevant decision-maker at the time of making the decision to issue the Warning. The language used in the Questions does not support such a limitation. Further, the purpose of the Questions is to determine a dispute whereby an employee is saying that they should not have been given a final warning because they did not engage in the conduct alleged, and even if they did, it did not warrant a final warning. To resolve such a dispute, it is necessary, in my view, to have regard to all the circumstances as they existed at the time the decision was made to issue the warning to the employee.

Although the present case is not one of unfair dismissal under part 3-2 of the Act, it is useful to consider the approach taken in an unfair dismissal case where an employer becomes aware of facts after a dismissal has taken effect and the employer seeks to rely on those facts in its defence of a claim that the dismissal was harsh, unjust or unreasonable. In Byrne v Australian Airlines Ltd,[20] Justices McHugh and Gummow approved the approach taken in Lane v Arrowcrest:[21]

“In Lane v Arrowcrest Group Pty Ltd, von Doussa J considered the example of the dismissal of an accountant who held a position of trust where it was discovered after the dismissal that the accountant had been systematically embezzling money from the employer. His Honour said it would be astonishing if the employer could not resist an allegation that the dismissal was harsh, unjust or unreasonable, within the meaning of the relevant award, by pointing to those facts discovered after the dismissal, so long as they concerned circumstances in existence when the decision was made.”

Applying a similar approach to the arbitration of a dispute about a warning issued to an employee for, say, theft, if the employer became aware of material which it did not have at the time it issued the warning to the employee, such as CCTV footage showing the employee taking the goods in question, it would, in my opinion, be astonishing if the employer could not resist an allegation that it was unreasonable and unjust in the circumstances for the employer to substantiate the allegation of theft and issue the warning to the employee by relying on the CCTV footage in the arbitration before the Commission.

I reject the Port Authority’s argument that if the Commission considered information that was not before the investigator, it would not be acting in accordance with the obligations imposed by ss 577 or 578 of the Act. Sections 577 and 578 of the Act provide:
“577 Performance of functions etc. by the FWC
(1) The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).
(2) In performing its functions under paragraph 576(2)(b), the FWC must have regard to:
(a) the need for guidelines and other materials to be available in multiple languages; and
(b) the need for community outreach in multiple languages.

578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

The Port Authority did not explain in its submissions which part or parts of these provisions would be contravened, or why, if the Commission considered evidence which travelled beyond that considered by the Port Authority investigator. I do not understand, for example, how it could be said that the Commission had failed to perform its functions and exercise its powers in a manner that was not “fair and just”[22] by having regard to evidence from Mr Marks as to what happened during his interaction with Mr Delves, in determining by arbitration whether it was reasonable and just in the circumstances for the Port Authority to substantiate allegation 5 against Mr Delves and issue the Warning to him.

For the reasons given, I am of the opinion that the Commission has a discretion in the present arbitration to accept and rely on evidence which was not before the decision-maker at the time it issued the Warning. To the extent that Deputy President Asbury (as the Vice President then was) expressed the view in BHP Coal (at [158]) that it is impermissible to have regard, when exercising an unrestricted power to arbitrate a dispute pursuant to a dispute resolution procedure in an enterprise agreement, to new or other information which was not before the employer at the time it made a decision to discipline the employee, even though such material concerned circumstances in existence when the decision was made, I respectfully disagree with it. No authority was cited in paragraph [158] of BHP Coal to support such a principle.

Having regard to all the circumstances of the present case, I have decided that it is appropriate to exercise my discretion to have regard to material that was not before the Port Authority at the time it issued the Warning to Mr Delves. In particular, I will have regard to all the evidence adduced before the Commission in the arbitration of the Dispute, so that I may answer the Questions for arbitration. Neither party identified each and every aspect of the evidence adduced before the Commission which was not before the decision-maker at the time the decision was made to issue the Warning to Mr Delves. The main evidence that falls into that category is that given by Mr Marks before the Commission. In circumstances where Mr Marks is a Wharf Officer employed by the Port of Newcastle, which is a separate entity to the Port Authority, and the allegation (in broad terms) is that Mr Delves intimidated Mr Marks during their interaction on 1 December 2022, I consider that it is appropriate to have regard to the evidence given by Mr Marks before the Commission, so that I can make a proper assessment as to whether I prefer his evidence, or that given by Mr Delves, when considering whether it was “reasonable and just in the circumstances” for the Port Authority to substantiate allegation 5 against Mr Delves and issue the Warning to him. The email account of the incident prepared by Mr Marks on the evening of 1 December 2022 (which was before the investigator) is very brief.[23] In contrast, Mr Marks gave detailed evidence in his witness statement and orally about his interaction with Mr Delves. Mr Marks was also challenged on various aspects of his account during his oral evidence, all of which assisted me to make findings of fact about what actually happened in the early hours of 1 December 2022. A further factor in support of my exercise of discretion in this regard is that no other witness (apart from Mr Marks and Mr Delves) was called to give evidence before the Commission as to what happened during their interaction on 1 December 2022.

Further preliminary issue – partially substantiated findings and leave to adduce new evidence

During closing submissions, I raised a concern with the legal practitioners appearing for the parties that it may be difficult to determine from the material before the Commission which part of allegation 5 was “partially substantiated” by the Port Authority and which part was not substantiated. Both parties subsequently filed and served written submissions in relation to this issue, together with the related question of whether the Port Authority should be granted leave, if it sought to do so, to adduce further evidence on this point. I have read and had regard to the submissions filed by the parties.

Any fair reading of the Warning, in which the investigator’s findings are set out, would suggest that there is some difficulty in determining which part of allegation 5 was “partially substantiated” by the Port Authority and which part was not substantiated. However, I decline to exercise my discretion to grant leave to the Port Authority to adduce further evidence on this point. The Port Authority is represented by experienced employment lawyers and was given ample opportunity to make forensic decisions as to the nature and extent of evidence to be adduced in the arbitration before the Commission. No convincing explanation has been provided as to why the Port Authority did not adduce, or could not have adduced, the evidence it now seeks to adduce when the matter was heard by the Commission on 14 August 2023. Further, if such evidence was adduced, the strong likelihood is that Ms Phillips, the investigator and person who made the findings, would need to be recalled for cross examination, as potentially would Mr Ernst in relation to his role as decision-maker and the extent to which he knew about which parts of allegation 5 were found by Ms Phillips to have been “partially substantiated”. Such a process would further delay the outcome of a case which concerns a Warning issued to Mr Delves in January 2023 for conduct alleged to have taken place on 1 December 2022. Mr Delves would be prejudiced by a further delay before knowing whether the Warning was to be retracted. The public interest in the timely conclusion of litigation also supports the rejection of the request for leave to adduce further evidence. Having regard to all the circumstances, I do not consider that it is in the interests of justice[24] to grant leave to the Port Authority to adduce further evidence.

Apart from the content of the Warning[25] and the Investigation Report,[26] the following evidence given by Ms Phillips in her witness statement[27] is relevant to the question of which parts of allegation 5 were “partially substantiated”:

“23. I determined Allegation 5 to be partially substantiated. The reason this finding was able to be made was because I determined that the allegations made by the Wharf Officer and Mr Delves’ response contained a number of similar aspects. Both the complainant and Mr Delves in his response, gave the same factual context that there was communication between the parties via the VHF recordings. Both spoke to Mr Delves giving commentary as to the training of Wharf Officers. Both the complainant, and Mr Delves in his response concluded that his behaviour could be perceived to be intimidation. Mr Delves had also admitted that he did not introduce himself, did not take off his mask and said that he could see that the Wharf Officer was anxious and fearful. There was also a significant discrepancy in ‘power’ between Mr Delves and the Wharf Officer. I was satisfied on the basis of these correlating factors and Mr Delves’ admissions, that it was more probable than not, that what was alleged by the Wharf Officer had occurred.
24. On 28 December 2022, I put the findings of my investigation into the allegations made about Mr Delves into an investigation report. A copy of this investigation report is attached at “LP-8”. As I was just the investigator into the complaints made by Mr Delves, I passed the investigation report and findings on to Mr Ernst who was the final decision maker. Mr Keech was also provided with a copy of the investigation report. I did not make a recommendation as to what should occur, as my role was investigator and my previous experience had taught me that it is best practice that a recommendation and decision be made by the decision maker.
…
37. I undertook an investigation of Mr Delves in regards to two serious complaints, resulting in five allegations against his behaviour. In doing so, I ensured that I complied with PANSW’s Disciplinary Policy by conducting investigations honestly, fairly and without bias. The first four allegations were unsubstantiated, that is, I determined I was unable to reach a conclusion on those matters on the basis that there was insufficient evidence to make a determination. This determination does not mean that the conduct in those allegations did not happen. Allegation 5, in relation to Mr Delves’ behaviour was found to be partially substantiated, as there was enough evidence on all fronts to support this decision on the balance of probabilities.
38. In undertaking the investigation, I submit that I took into account numerous factors, including Mr Delves’ account of events. In Mr Delves’ version of events he explains getting off the vessel and taking the Wharf Officer aside to speak. He acknowledged that the Wharf Officer was ‘anxious’ and ‘fearful’, that his presence may be ‘intimidating’ and he chose not to remove his helmet or mask.
39. Further, Mr Delves’ response confirmed that there was a conversation that took place between himself and the Wharf Officer, and more so that he found it acceptable and appropriate to approach the Wharf Officer in the manner he did.
40. Therefore, on the basis of the evidence before me, I found Mr Delves’ conduct of requesting the Wharf Officer to go to a separate area, keeping his helmet on, speaking to him when he was aware that the Wharf Officer was ‘anxious’ and ‘fearful’ to be intimidating and unacceptable behaviour, that led to a finding of Allegation 5 being partially substantiated.”

I agree with the Port Authority’s submission that Ms Phillips treated allegation 5 as having two parts, the first part being that part of the allegation that related to what was allegedly said during the berthing process, and the second part being the interaction between Mr Delves and Mr Marks on the wharf following the berthing process. As to the first part, I am satisfied on the balance of probabilities that Ms Phillips did not find that the allegations were substantiated. As to the second part, I am satisfied on the balance of probabilities that Ms Phillips found the allegations to be substantiated, hence her finding that allegation 5 was “partially substantiated”. My reasons for reaching these conclusions are as follows:

(a)The first part of the allegations concerns what was said by Mr Marks and Mr Delves on two-way radios during the berthing process. Ms Phillips listened to the two-way radio recordings and stated in her “findings” that they “show[ed] no evidence of the [alleged] communication between the wharf officer, Mr Marks and Mr Delves”.[28] Similarly, Ms Phillips stated on page 2 of the Investigation Report that she found “no evidence” of the alleged transmissions over the two-way radio system on 1 December 2022.[29] Further, in respect of allegations 1 to 4, Ms Phillips found that they were “unsubstantiated” because, “In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation”.[30] It would be most unusual if Ms Phillips reasoned differently in respect of the first part of allegation 5, given that it involved analogous circumstances to allegations 1 to 4.
(b)The second part of the allegations concerns the interaction between Mr Delves and Mr Marks after Mr Delves disembarked from the ship. Their communication during this interaction was in person and did not take place over two-way radios. Notwithstanding the lack of any recording of the communications, Ms Phillips reasoned in the “findings” part of the Investigation Report and Warning that Mr Delves had made various “admissions … after he disembarked”.[31] These “admissions” support a conclusion that Ms Phillips found the allegations substantiated insofar as they concerned what happened on the wharf. Although Ms Phillips stated that Mr Delves “denied” making a statement about training, she noted in her “findings” that “both parties’ version of events referenced ‘training’”.[32] Further, the “observations” made by Ms Phillips in the Investigation Report include “the fact that Mr Delves asked Mr Marks to move away from the gangway to have a conversation, could intimidate a reasonable person” and “Mr Delves admitted that Mr Marks ‘looked anxious & fearful’ & ‘was shaking’ – all symptoms of the effect his approach was having on the receiver, nonetheless, he continued his conversation, justifying his approach and posing solutions that were perhaps outside the remit of Mr Marks’ position of Wharf Officer”.[33] These aspects of the “observations” were critical of Mr Delves’ conduct after he disembarked from the ship, which supports the view that the “partly substantiated” allegations were those that related to what Mr Marks said happened when he greeted Mr Delves at the foot of the gangway. Ms Phillips gave evidence to a similar effect in her witness statement.[34]

It would be inappropriate in the arbitration of the Dispute for the Commission to make findings about, and consider, those parts of allegation 5 that Ms Phillips found were not substantiated. That is because the Dispute is focused on the Warning issued to Mr Delves. The Warning was given to him because the Port Authority found that allegation 5 was “partially substantiated”, with the result that Mr Delves breached the Code of Conduct & Values. The Dispute before the Commission is not about whether Mr Delves engaged in any conduct which could have warranted a warning. If the Port Authority changed its position from that which is stated in the Warning and asserted that Mr Delves acted inappropriately in his interactions with Mr Marks before he disembarked the ship (i.e. the unsubstantiated part of allegation 5), then that would likely give rise to a new dispute which could be dealt with under clause 15 of the Agreement. But that is not this Dispute.

Relevant factual findings re “partially substantiated” allegation 5

Mr Delves is an experienced Marine Pilot. He commenced employment with the Port Authority in about April 2010.

During 2020, as a result of numerous reports pertaining to issues with vessel/berth-position planning and bridge marker positioning, Mr Delves was delegated to a representational role on behalf of the Port Authority, outside his Marine Pilot duties, that included the role of Wharf Liaison Officer. On 29 January 2021, Mr Delves ceased performing the role of Wharf Liaison Officer. It is fair to say that, since his appointment to the role of Wharf Liaison Officer, Mr Delves has been met with some resistance from some Wharf Officers. This is a relevant background circumstance.

Mr Marks is a Wharf Officer employed by the Port of Newcastle. He commenced in that role in about mid-2022. Mr Marks is responsible for assisting vessels berthing on the wharf, including ensuring that a cone and light are positioned correctly on the wharf.

During the early hours of 1 December 2022, Mr Delves piloted the Panamax vessel ‘Global Bonanza’ from seaward port limits to the NCIG Terminal (Berth K8) in the port of Newcastle. At that time, Mr Marks was rostered to work at the NCIG Terminal to assist the berthing of Global Bonanza, by placing the cone and light (the bridge marker) in the requested position.

Prior to 1 December 2022, Mr Marks had worked as a Wharf Officer while Mr Delves piloted ships to the wharf at which Mr Marks was working. Mr Marks’ experience was that Mr Delves does not acknowledge that the ship is in position or ask if the Wharf Officer is happy with the bridge position. In contrast, Mr Marks’ experience is that it is common for other Marine Pilots to communicate with the Wharf Officer and ask them if they are happy with the position of the vessel. Mr Marks says that this is to assist the Marine Pilot in case they need to move the vessel to ensure it lines up with the mid-ships correctly, which is important for when surveyors board the vessel to check how much of the ship is in the water to determine the safety loading of the vessel.

Due to his previous experience working with Mr Delves and to ensure that he did his job properly, Mr Marks decided that he would make sure that Mr Delves was aware on 1 December 2022 of the proximity of the mid-ship draught marks to the fender.

By way of further relevant background, Mr Delves agrees that he seldom responds to two-way radio transmissions from Wharf Officers during the berthing phase of pilotages.[35] Mr Delves believes that unsolicited transmissions on the VHF working channel introduce the risk of Tug Masters not hearing Mr Delves’ orders or Mr Delves not hearing their confirming/loop-closing transmissions.[36] In addition, if a Wharf Officer transmits a request to move a ship because, for example, the bridge marker was not deployed to meet all stakeholders’ objectives, Mr Delves believes that a longer transmission duration induces a higher risk of inaccurate outcomes pertaining to the hull’s movements.[37] Mr Delves’ reluctance to engage with Wharf Officers in relation to the accuracy of bridge marker positions is also informed by Mr Delves’ view that Wharf Officers use the wrong definition of midships (draft marks).[38]

At around 2:10am on 1 December 2022, the berthing phase of the Global Bonanza commenced when Mr Delves transmitted orders to the three tugboats involved in the movement of the vessel. During the berthing phase, Mr Marks, who was standing on the NCIG wharf, used his two-way radio to make a communication to Mr Delves about the proximity of the mid-ship draughts marks to the fender. Mr Marks, Mr Delves, and the three tugs were all using the same two-way radio channel for communication during the berthing phase.

Mr Delves took issue with the fact that Mr Marks used the two-way radio channel to communicate with him during the berthing process. Mr Delves resolved to talk to Mr Marks about his transmissions before leaving the wharf.[39]

Before leaving the Global Bonanza, Mr Delves used his two-way radio to communicate the following message of thanks to the Master of the Maitland tugboat:[40]

“Thanks for your shift, top job good morning.”

Mr Delves gave the following account in his witness statement in chief of his interaction with Mr Marks after descending the gangway onto the wharf:[41]

“59. I descended the gangway and on to the wharf, where I conveyed the vessel’s mooring completion time to the NCIG Terminal Representative, and then to the wharf officer said words to the effect of “Can we have a quick chat just to debrief on this job?”
60. The wharf officer nodded in agreement. I ushered the wharf officer to move away from the NCIG Terminal Representative standing next to him by gesturing with my arm. I did this to preserve our privacy as I did not wish for him to become embarrassed by someone else over-hearing the content our chat. Our conversation was to the following effect:
Tim Mate we’ve not met before, Tim’s my name. Do you know why I had to shut down your transmissions just then during that berthing?

Wharf [shook his head as to indicate he did not]
Officer
Tim The reason is that I need the working channel clear so that I get no delay in the Tugs receiving my orders, and then their loop-closing and action to control the ship’s approach. Thing is, we get more-than-a-few radio interferences from different sources during the pilotages here, and we must report these. But it’s not about me and you; it’s about the ship and the wharf.
Can I just ask you, the best policy is to just wait until the Pilot calls you before you transmit anything at all on your radio.
I don’t know what training you’ve had with VHFs, but we don’t want a situation where the VHF radios are taken off the Wharf Officers and the Linesmen, because there are times we do need some information from you guys and them. But I need you to understand that that’s not during the berthing manoeuvre.

61. At this point in the conversation I noticed that, for a brief moment, the wharf officer appeared to shake. The conversation continued to the following effect:
Tim     What do you say?
Wharf Yeah okay
Officer
Tim     Are you okay?
Wharf Yeah
Officer
Tim     Fair deal. Alright, take care. We were all-fast at 0300.

62. I was genuinely trying to finish the conversation in a friendly way.
63. I figured that the wharf officer may have shook as it was around 3am, cold and windy, or had realised the potential consequences of his untimely VHF transmission and what could have happened during the berthing as a result.
64. When I said the words “Alright, take care”, I patted the wharf officer’s left shoulder softly with my right hand which I intended as a gesture of reassurance and then left and headed to the pilot’s office.
65. I still had my flight helmet on (which as a clear visor) and disposable surgical face mark when speaking with wharf officer. It was a requirement for all PANSW marine pilots to have face masks on while on board vessels. I also have been spoken to by an NCIG terminal representative in the past in around 2017 for taking off personal protective equipment (PPE) whilst on their wharf. For these reasons, it is my usual practice to keep my helmet, mask and other PPE on while on a wharf.
66. At the pilot’s office, I submitted a Risk Event Report in the MyOSH system. Attached and marked TD-4 is a copy of the Risk Event Report dated 1 December 2022 with the investigator’s subsequent comments.

67. Attached and marked TD-5 is a copy of two photos I took on 1 December 2022 which demonstrate the MV Global Bonanza’s alignment with the bridge marker.”

Mr Delves included the following description of the event in his Risk Report Event:[42]

“During final stage of berthing, when the vessel was not yet landed on the Fenders F&A, PoN Wharf Officer volunteered some info on VHF08 that the midships draft mark might be obstructed by the Fender. Protracted transmission produced risk of loss-of-comms with Tugs during critical berthing phase.”

Mr Marks gave the following account in his witness statement of his interaction with Mr Delves on the wharf:[43]

“12. At 3:00am the vessel was all fast which is where the ship is safely secured to the dock and the gangway is secured. I greeted the Pilot at the foot of the gang way, which is my usual practise. The NCIG Representative was standing on the higher section of the wharf looking down towards myself and Mr Delves at the time.
13. Mr Delves was wearing a face mask and his helmet. He did not take the face mask off or lift the visor on his helmet, which meant I could not see his face clearly. Mr Delves instantly began speaking to me. His first words to me were to the effect of “Can you tell me why you’re transmitting on the radio”. I replied words to the effect of “because I was worried that the midships were going to be covered”.
To the best of my recollection, Mr Delves then said words to the effect of:
“You are obviously new, and so I need to tell you that you should never talk to me, unless I talk to you first. We (in reference to the wharf officers) don’t know how to calculate mid-ships correctly. Wharf officers are not properly trained for their roles, I don’t know why wharf officers have radios.”
It was at this moment Mr Delves put his hand on my shoulder, where it remained for the rest of the conversation. He then said words to the effect of:
“This better not happen again as otherwise I will have to write a complaint to your supervisor”.
14. I did not respond to Mr Delves after I advised why I transmitted on the radio to him. I was aware of Mr Delves reputation around his behaviour from other Wharf Officers, and thought it would not be conducive to the situation to respond. It was very clear to me from his hand on my shoulder, the way he was standing over me, and the fact he was threatening to write a complaint about me, that he was trying to intimidate me.
15. Mr Delves and I then walked up to the higher section of the wharf where he walked off. The NCIG Representative then came up to me and asked if I was okay as he could hear the conversation, and asked why Mr Delves had his hand on my shoulder.

16. Whilst this situation made me uncomfortable, and I thought that Mr Delves was trying to intimidate me, and make me concerned for my job, at that time I decided not to take it further. However, later that day at approximately 4:00pm, I received a phone call followed by an email from my supervisor Mr Phillip Bourquin advising that Mr Delves had submitted an Incident Event Report about my radio communication with him. Mr Bourquin asked that I provide a response the same day. I provided my response. A copy is attached to this statement and marked “DM-1”.
17. I am unsure why Mr Delves decided to report my radio transmission and whether he was trying to cover himself in case I made a complaint against him. However, as he chose to report my use of the radio as a potential safety risk and I had been asked to respond, I did so. In my response I wanted to make clear that my use of the radio was not a problem, and that there was no risk to safety. I wanted it to be clear that my use of the radio at that time was done as a means of assisting him when getting the ship in final position. What was a problem and what I wanted to make clear to my supervisor was that his behaviour when he came off the ship, trying to intimidate me, threatening me and how he presented and spoke to me was not acceptable.
18. I was not aware when providing my response to the Incident Event Report that my manager would raise the matters set out in my response with the Port Authority of New South Wales.
Response to Statement of Tim Delves
19. In response to Mr Delves statement at [48] – [51], I disagree with what is asserted. When I made my transmission, there was silence on the VHF. I only made one short transmission and at the time, the vessel was already alongside and touching the wharf. Mr Delves never said words to the effect of “radio silence on the wharf please”. The vessel was moving slowly and long enough for me to walk from the bridge marks to the mid-ships which is roughly 100 meters, which I did to try and understand the vessels position. Typically, I would not have to do this as every other Pilot would ask me if I was happy with the ships position.
20. I disagree with what is stated at [59] of Mr Delves’ statement. I recall Mr Delves stepped of the gangway to where I was standing and immediately started speaking to me about why I was communicating on the radio. I was by myself at this point, with the NCIG Representative at the higher part of the wharf. Mr Delves did not usher me away from where we were standing.
21. The conversation did not occur as described [60] of Mr Delves statement. Mr Delves did not introduce himself to me, nor did he explain anything about his views on transmissions during berthing. The conversation occurred as I have set out in [13] and [14] of this statement.
22. Mr Delves did not ask me if I was okay, as is asserted at [61] of Mr Delves statement. The conversation ended with Mr Delves threating to make a complaint about me to my superior should this happen again and then walking away.

23. In response to Mr Delve’s statement [61] and [63], I do not recall physically shaking. What I remember is feeling uncomfortable by the conversation and feeling that he was trying to intimidate me.”

The email response sent by Mr Marks to Mr Bourquin at 8:08pm on 1 December 2022 was in the following terms:[44]

“Hi Philip
At approximately 0230 on the 1^st Dec the vessel Global Bonanza was berthing at K8 piloted by TJD. I was aware that the midship draught marks were going to be close to a fender once the vessel was in the marked position. The pilot TJD as with previous vessels, never acknowledges to the wharf officer that the ship is in position or asks if we (the wharf officers) are happy with the bridge position. Knowing this I felt it was a priority to make sure that the Pilot was aware of the proximity of the mid ship draught marks to the fender as I am unaware of when the Pilot TJD is in the final position. When I called TJD on the radio it was at a time when the vessel was along side and touching all fenders but with no lines ashore. My message was short and precise “PILOT WHAFT, MIDSHIPS IS 2M FWD OF THE FENDER AND CLOSING”. There was no immediate communication at the time between the pilot and tugs. TJD replied with ‘THE SHIP WILL STAY WHERE IT IS ONCE ON THE MARK”. At 0300 the vessel was all fast and I greeted TJD at the foot of the gangway, here TJD put his hand on my shoulder and in a very condescending manner said “THAT I AM OBVIOUSLY NEW AND I SHOULD KNOW WHY WHARF OFFICERS HAVE RADIOS AND THAT WE ARE NOT PROPERLY TRAINED FOR OUR ROLE AS A WHARF OFFICER. THAT THIS BETTER NOT HAPPEN AGAIN OTHERWISE I WILL HAVE TO WRITE A COMPLAINT TO YOUR SUPERVISOR”.
I treat every pilot the same when assisting the berthing of a ship and will continue to do so in the manner that I have been trained.
This was all witnessed by the NCIG foreman on duty at the time.”

I accept Mr Marks’ evidence that he prepared his email to Mr Bourquin on the evening of 1 December 2022 while he was at home, without the influence of any other person.[45] I also accept Mr Marks’ oral evidence that he did not report the incident during his shift on 1 December 2022 because he was fairly new in his role, was unsure about what to do, he did not have much time to think about to proceed with a matter of this nature during the balance of his shift, and he wanted to discuss the issue with his partner.

Neither party called as a witness, in the arbitration hearing before the Commission, the NCIG representative who was present on the wharf and witnessed the interaction between Mr Delves and Mr Marks on 1 December 2022. Contrary to the submission advanced by the AMOU, I have decided not to exercise my discretion to draw a Jones v Dunkel inference in relation to the failure to call the NCIG representative to give evidence. The NCIG representative was not employed by the Port Authority. He was employed by a third party, NCIG, that controlled the terminal at which the Global Bonanza was berthed by Mr Delves. I do not consider that the NCIG representative was in the ‘camp’ of the Port Authority or Mr Delves.[46] In addition, the rule in Jones v Dunkel does not operate to require a party to give merely cumulative or corroborative evidence.[47] In circumstances where Mr Delves and Mr Marks gave evidence as to what happened on the wharf on 1 December 2022, any evidence which could have been given by the NCIG representative would have been cumulative or corroborative of the evidence given by Mr Delves and/or Mr Marks. There is no relevant ‘gap’ in the evidence.

The Port Authority investigated the incident on 1 December 2022. Pursuant to its Disciplinary Policy, the Port Authority was required to afford procedural fairness to Mr Delves in its investigation of the incident. Mr Ernst had the responsibility to decide what disciplinary action, if any, should be taken against Mr Delves. Mr Ernst decided to issue the Warning to Mr Delves, which was expressed to be a “final warning”.[48] Although I accept, for the reasons set out below, that there were flaws in both the investigation and Mr Ernst’s decision-making process, I accept his evidence that he did not decide to issue the Warning to Mr Delves in order to placate an important business partner – the Port of Newcastle.[49]

I prefer the evidence given by Mr Marks over that given by Mr Delves in relation to their interaction on the wharf on 1 December 2022. First, I found Mr Marks to be a credible and reliable witness. He gave oral evidence before the Commission which was largely consistent with his initial email account on 1 December 2022 and his witness statement made on 18 July 2023. He answered questions directly and responsively. He was not shaken during cross examination. He made a number of concessions during his oral evidence, including that (i) although Mr Delves’ voice was raised during their discussion on the wharf, that was not unusual in light of the surrounding noise, (ii) there was nothing unusual about Mr Delves standing close to him during their discussion on the wharf in light of the surrounding circumstances, (iii) if Mr Marks notices or witnesses an issue at work about which he is concerned, he can report it and his practice is to do so, and (iv) there is a requirement for Wharf Officers to engage in minimal use of the two-way radio during berthing so that a Marine Pilot can communicate with Tug Masters. Mr Marks did not seek to embellish or exaggerate the incident. For example, in paragraph [23] of his witness statement Mr Marks stated that he did “not recall physically shaking. What I remember is feeling uncomfortable by the conversation and feeling that he was trying to intimidate me”. Although Mr Marks was clearly unimpressed by Mr Delves’ practice of not acknowledging to the Wharf Officer that the ship is in position or ask if the Wharf Officer is happy with the bridge position, I am satisfied that Mr Marks did not have a personal vendetta or the like against Mr Delves. I do not consider that Mr Marks had any motive to lie about the incident, which supports his credibility as a witness in these proceedings.[50]

Secondly, a number of the comments allegedly made by Mr Delves to Mr Marks while they were on the wharf are consistent with, or similar to, the views that Mr Delves holds about Wharf Officers. In particular:

(a)Mr Delves believes that “unsolicited transmissions”[51] on the VHF working channel during berthing give rise to operational risks and that is why he “seldom respond[s] to transmissions from Wharf Officers during the berthing phase of pilotages”.[52] In addition, as soon as Mr Marks used the two-way radio to make a communication on 1 December 2022, Mr Delves says that he “immediately transmitted words to the effect of ‘radio silence on the wharf please’”.[53] These matters support the likelihood that Mr Delves said to Mr Marks, “You are obviously new and you should know that you never talk to me unless talked to first”;[54] and
(b)Mr Delves believes that Wharf Officers are using the wrong definition of midships (draft marks),[55] which is consistent with the contention that Mr Delves said to Mr Marks, “… you wharf officers are not properly trained for your roles”.[56]

Thirdly, I am satisfied that there are a number of similarities between comments made by Mr Delves during the investigation process about his interaction with Mr Marks and the evidence given by Mr Marks about the interaction. Mr Delves attended a meeting on 15 December 2022 to discuss the allegations made against him. Mr Richard Rouse, AMOU delegate and Marine Pilot employed by the Port Authority, attended the meeting with Mr Delves. Ms Phillips and Mr Ernst attended the meeting on behalf of the Port Authority. Ms Phillips took minutes of the meeting.[57] Ms Phillips gave oral evidence, which I accept, that during the meeting she typed Mr Delves’ response to the questions put to him, but she accepts that her minutes are not a verbatim record of everything that was said in the meeting. The minutes relevantly state:

“Allegation 5 – Port of Newcastle

1 December 2022 at approximately 0230, the vessel Global Bonanza was berthing at K8 piloted by you. The wharf officer was aware that the midship draught marks were going to be close to a fender once the vessel was in the marked position. Having worked alongside you on previous occasions, the wharf officer is of the opinion you typically do not acknowledge to the wharf officer when the ship is in position or ask if the wharf officers are happy with the bridge position. Therefore, the wharf officer felt it was necessary to make you aware of the proximity of the mid ship draught marks to the fender as they were unaware of when you are in the final position. The wharf officer called you on the radio when the vessel was along side and touching all fenders but with no lines ashore. His message was short and precise “Pilot wharf, midships is 2M fwd of the fender and closing”. There was no immediate communication at the time between you and the tugs. You replied, to the effect, “The ship will stay where it is once on the mark”. At 0300 the vessel was all fast and the wharf officer greeted you at the foot of the gangway. You put your hand on his shoulder and in a condescending tone said “You are obviously new and you should know that you never talk to me unless talked to first. I don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles. This better not happen again otherwise I will have to write a complaint to your supervisor”.
Response

TD: This is a particularly upsetting testimony from the wharf officer. Am I able to review the written statement? It’s well composed, I believe it has been composed to imply I haven’t followed procedure.
LP: Could you explain what you mean by that?
RR: When was it reported?
PE: The wharf officer reported it on 1st December & it was sent to Vikas on 8th December.
RR: Is that a normal delay period to receive a complaint from PoN?
PE: I’m not aware of the delay in providing the complaint but I believe a week timeframe is within the bounds of reasonable.
LP: I would agree with PE. We probably need to consider the shift pattern of the complainant and the fact he made the complaint to his supervisor, who forwarded it to Vikas. I believe a week timeframe is reasonable. Could you explain what you mean by ‘composed to imply I haven’t followed procedure?’
TD: My response is that the allegation is false and misleading. When you review the VHS transmissions during the final phase of berthing, you’ll hear I said “radio silence on the wharf please”. The wharf officer was transmitting on VHF 8, 11 or 77. My reply, to my recollection, was “radio silence on the wharf please”.
RR: Generally, it is accepted practice that the wharf officers do not call you whilst berthing – it is discouraged. I’ve had an officer call during berthing and it can be very distracting.
TD: I believe there was a further transmission from the wharf officer. On the berth I’m preoccupied for the next half hour or so, until the mid ship draft mark is reached so it can be distracting.
PE: The wharf officer has stated in his complaint that when he called you the vessel was alongside.
TD: When you review the recordings, you will hear me tell the tugs to push, when the ship is against the fenders. I’ll say “All lines made fast”. Then I went down the gangway. I greeted the wharf officer on the wharf apron at the NCIG terminal. I realised I hadn’t met this officer before, I didn’t know his name so I assumed he had started recently with the PoN. I’m deducing there was a lack of experience on his part. He looked anxious, standing looking at the hull, there was a NCIG terminal person standing close to him so as to not embarrass him in front of the NCIG employee, I ushered him gently, to move him away. Then I asked him “are you aware of what just transpired?”
LP: What do you mean by ‘you ushered him gently?’. Did you physically handle him?
TD: Not at this point. I asked him to have a chat away from the NCIG person. I asked Daniel, did you realise why I asked for radio silence? I thought he was anxious and fearful. LP: What do you mean by ‘not at this point?’
TD: I’ll explain later when I did put my hand on his shoulder.
LP: Could you explain for me what led you to believe he was ‘anxious and fearful’?
TE: I could visibly see him shaking, he was nervous, possibly fearful. So I thought I’m going to have to manage this carefully to get a good outcome. I explained “You called me when I was about to berth. I need you to refrain from calling the pilot until the pilot calls you”. I don’t know where the comment that wharf officers shouldn’t have radios came from. I don’t recall saying that and it would be ridiculous anyway because they need their radios to do their job.
PE: Where was the NCIG foreman at this point?
TD: I believe we were out of earshot range of him.
TD: In regard to his comment ‘wharf officers aren’t properly trained’, I explained to him the outstanding issues regarding the training. I explained I had been appointed by the harbour master for consultative issues between PANSW, PoN & NCIG and it has been raised that the training offered for bridge positions should be reviewed. I believe that the wharf officer’s statement has been conceived through collusion with other PoN officers with the intent to single out myself.
LP: Alleging collusion by other parties is quite a strong accusation. What leads you to this conclusion?
TD: I believe this statement has been formulated by two other people at PoN who are resistant to change in processes. (Note: TD explained that the consultative committee of which he volunteered, was formed prior to Vikas Bangia commencing as harbour master, and has since been disbanded. The purpose of the committee was for all port partners to regular consult on issues, in particular, procedures and processes, with a view to implementing a continuous improvement approach). At this point in the discussion, TD showed LP & PE a photo of the bridge position for context.
PE: Why did you take these photos?
TD: To support my argument when I’m challenged about the bridge position.
LP: Is taking photos of the bridge position a common practice for pilots?

RR: The bridge position is precalculated. We allow ships to be berthed 30m apart, any slight changes can change the distance rapidly. The process is common around the world. The gangway location is a consideration. A pilot will aim to be on the bridge mark – but it isn’t always possible. If the pilot moves it, there are other factors that lead him to make that decision.
TD: In regard to the wharf officer’s statement ‘this better not happen again’. I explained to him the importance of having an understanding on why the risk occurred, then I will not submit a risk report. At this point in my conversation with him, I’m still perceiving he is new. My approach was to take a conciliatory and mentor tone with him as I thought the way I tackled it was consistent with PANSW values.
LP: What was the wharf officer’s response?
TD: He nodded. I gave him two soft pats on the shoulder, I asked him if he was ok. LP: Did he respond?
TD: He nodded and I think said “yeah”. I was perceiving he was fearful – my presence can be intimidating, I acknowledge that. I didn’t intend for it to be “do you understand why I had to silence you?”.
LP: Are you saying that it is your understanding, that during the conversation, his only response was “yeah” and nodding?
TD: Yes.
RR: Were you wearing a mask during the conversation?
TD: Yes.
RR: I’d like to propose here that wearing a mask and a flight helmet could be a little intimidating.
LP: To clarify, you were wearing a mask and a flight helmet for your whole conversation?
TD: Yes.
LP: Does the flight helmet have a full face section?
TD: No, just to the top of the forehead.
RR: Consideration needs to be given to the fact that this is not a verbatim conversation.
LP: You mentioned in your response that you hadn’t seen the wharf officer before and that you didn’t know his name, yet in your next response you mentioned his name as ‘Daniel’. How and when did you come to know his name?
TD: I asked a former NPC employee who the wharf officer was, there was no mention of the current investigation, I described his physical appearance, there are three new WO’s whose names I wasn’t aware of and I described their physical appearance and he gave me three names.
LP: What did you do with that information?
TD: I thanked him.
LP: Did he ask you why you wanted the information?
TD: No – but I mentioned that this guy is new.
LP: Is there anything you’d like to add?
TD: I would ask that PANSW managers consider organising a technical review meeting, a conciliatory meeting, to revisit the matters of wharf husbandry.
LP: Is this a practice that hasn’t occurred since Vikas has been HM?
TD: Correct.
PE: The technical review isn’t part of this investigation but your request is acknowledged. We acknowledge that stakeholder relations are an important element of our work at the port.
TD: I’d like to request that I receive a copy of the WO’s statement.
PE: For full disclosure, LP and I had the discussion about whether we keep the two complaints separate, as they were both relating to your behaviour, we included them in the same complaint. The most time efficient thing was to deal with both allegations together.
TD: I thought the approach that I took with the wharf officer was appropriate, I thought I was doing the right thing, being conciliatory. Going forward, we need to have better working relationships with all port operators.
PE: I understand your comment. In the past, there was a perception that PANS was heavy handed and we heard people didn’t want to deal with us. I would like to think that we have changed that and improved processes and built more effective working relationships.
LP: The next stage of the investigation process is for me to consider your responses and consider the evidence of VTS recordings and of speaking to any potential witnesses such as Matthew Best. As I mentioned previously, I will be preparing a report to present to Peter who will seek guidance from his leader as to the final outcome. We will then meet with you again to present the findings and the outcome. Thank you for coming into today and thank you Ricky for coming to support Tim. Tim, I’d like to remind you of the EAP services available to you if you wish to use them.”

On 15 June 2023, Mr Delves was given access to the minutes taken by Ms Phillips of the meeting on 15 December 2022, as a result of an order for the production of documents made by the Commission.[58] Mr Delves made the following comments in his witness statement in chief about the minutes:

“118. The discussion during the meeting around the wharf officer shaking did not occur as it is recorded in the minutes. That conversation occurred as I describe above at paragraph 85.
119. The discussion of my role as Wharf Officer Liaison and the MPPMS Group Composition for 2020/2021 document that I provided is also not referred to in the meeting minutes.”

In his reply statement, Mr Delves made the following statement about the minutes:

“60. In response to paragraph 13, the minutes attached to Ms Philips’ statement as LP-6 do not accurately reflect what was said during the meeting. There are several errors in the minutes, including, for example:
(a) On page 3, I did not say: “During an operation, there are times when your voice needs to be heard to be commanded”. I used words to the following effect: “Have you heard the expression: ‘A voice that was born to command’? During an operation there are times when the voice needs to be used so as to cut through the din.”
(b) On page 3, I did not say: “When you review the VHS transmissions during the final phase of berthing, …. The Wharf Officer was transmitting on VHF 8, 11, or 77 …”. At no point did I provide detail as to the VHF channels that were possibly in use as the movement’s port operations channel. Ms Phillips must have obtained this information from Mr Kishore later.
(c) On page 3, I did not say: “On the berth I’m preoccupied for the next half hour or so, until the mid ship draft mark is reached so it can be distracting” as that statement does not make sense and I would not use those words. I said words to the following effect: “After berthing the vessel, the next half hour or so is spent running mooring lines, so I was not concerned with responding to the Wharf Officer regarding the midship draft mark”.
(d) On page 3, it was Mr Ernst and not Ms Philips who asked: “What do you mean by ‘you ushered him gently?’ Did you physically handle him?”
(e) On page 4, I did not say any of the following:
“I thought he looked anxious and fearful”
“I’ll explain later when I did put my hand on his shoulder”
“I could see him visibly shaking, he was nervous, possibly fearful”
“I was perceiving he was fearful – my presence can be intimidating…”
I did say words to the following effect: “At one point I thought he shook a little”. And that’s when Mr Ernst queried “What did he look anxious?... fearful?””

There is no contest that Mr Delves made the following comments in the meeting on 15 December 2022:

(a)“While I was descending the gangway to the wharf and I was approaching him [the Wharf Officer] and the NCIG Terminal Rep, I realised I don’t know this kid”;[59]
(b)“I didn’t know his name so I assumed he had started recently with the PoN. I am deducing there was a lack of experience on his part. He looked anxious…”[60]
(c)“At one point I thought he shook a little”;[61]
(d)“I ushered him gently, to move him away”;[62]
(e)“I thought I’m going to have to manage this carefully to get a good outcome. I explained ‘You called me when I was about to berth. I need you to refrain from calling the pilot until the pilot calls you’”;[63]
(f)“In regard to his comment ‘wharf officers aren’t properly trained’, I explained to him the outstanding issues regarding training. I explained I had been appointed by the harbour master for consultative issues … and it has been raised that the training offered for bridge positions should be reviewed”;[64] and
(g)“I gave him two soft pats on the shoulder”.[65]

These comments confirm that during their interaction on the wharf Mr Delves touched Mr Marks’ shoulder, Mr Delves criticised the training given to Wharf Officers, Mr Delves informed Mr Marks that he should not speak to Mr Delves over the two-way radio during the berthing process unless Mr Delves called him first, and Mr Delves appreciated that Mr Marks appeared to be anxious. These agreed facts are consistent with the Port Authority’s contention and finding, as set out in the Warning, that:[66]

“At 0300 the vessel was all fast and the wharf officer greeted you at the foot of the gangway. You put your hand on his shoulder and in a condescending tone said “You are obviously new and you should know that you never talk to me unless talked to first. I don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles.”

I appreciate that Mr Delves says that he acted in the way that he did during his interaction with Mr Marks on 1 December 2022 because he was “being conciliatory”.[67] However, I do not accept this evidence. In my view, Mr Delves was clearly unimpressed by what he perceived as an unwarranted radio communication by Mr Marks, an inexperienced Wharf Officer, during the berthing process and he decided to take the matter up with Mr Marks when he disembarked the vessel. Rather than deliver his message in a gentle and friendly manner, I am satisfied on the balance of probabilities, taking into account the Briginshaw standard, that Mr Delves spoke forcefully to Mr Marks in a manner that was objectively intimidatory.

Contrary to the “observations” in the Investigation Report,[68] I do not consider that it was inappropriate or intimidating for Mr Delves to speak with Mr Marks on the wharf on 1 December 2022 while Mr Delves was still wearing his flight helmet (which has a clear visor) and disposable surgical face mask. On 1 December 2022, it was a requirement for all Port Authority Marine Pilots to have face masks on while on board vessels. In addition, Mr Delves wears a face mask during pilotages and in other public settings because he is the primary carer of his elderly mother and he wishes to reduce the impact of inhaling emissions from a ship’s exhaust fumes during berthing phases, as well as protecting himself against coal dust, alumina dust and grain dust. As to wearing a helmet on the wharf, Mr Delves was spoken to by a NCIG terminal representative in about 2017 for taking off personal protective equipment whilst on their wharf. Mr Delves also gave evidence, which I accept, that it was a requirement of the Port of Newcastle Operations Pty Ltd and the Port Authority that both head protection and safety glasses are to be worn on the wharves.[69]

Nor do I consider the fact that Mr Delves “is a tall man” and he “asked Mr Marks to move away from the gangway to have a conversation, could intimidate a reasonable person”, as contended in the Investigation Report.[70] Mr Delves cannot control his height. I do not consider that a reasonable person would be intimidated by the fact that Mr Delves is a tall man. Similarly, it was not unreasonable to ask Mr Marks to move away from the gangway for a conversation. Mr Delves says that he did so to “preserve our privacy” because he did not wish for Mr Marks to be embarrassed by someone overhearing their conversation.[71] That was a reasonable request to make in the circumstances.

As Mr Marks accepted in his oral evidence, it was also reasonable for Mr Delves to speak to him in a loud voice, while standing close to him on the wharf, given the surrounding circumstances

In light of the evidence before the Commission and for the reasons explained above, I am satisfied on the balance of probabilities, taking into account the Briginshaw standard, that Mr Delves engaged in the following conduct alleged against him in allegation 5 insofar as that allegation pertains to the interaction between Mr Delves and Mr Marks while they were on the wharf on 1 December 2022:

“At 0300 the vessel was all fast and the wharf officer greeted you at the foot of the gangway. You put your hand on his shoulder and in a condescending tone said “You are obviously new and you should know that you never talk to me unless talked to first. I don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles.”[72]

Was it reasonable and just in the circumstances for the Respondent to substantiate allegation 5 against Mr Delves?

On the basis of the evidence before the Commission, I have found that Mr Delves engaged in the conduct which is the subject of the “partially substantiated” part of allegation 5. The evidence on which I have relied to make that finding concerns circumstances which were in existence when the decision was made by the Port Authority to issue the Warning to Mr Delves. It follows, in my view, that it was reasonable and just in the circumstances for the Port Authority to partially substantiate allegation 5 against Mr Delves.

Was it reasonable and just in the circumstances for the Respondent to issue the Warning to Mr Delves?

The XPT Case is authority for the proposition that the Commission should not interfere with the right of an employer to manage its own business unless it is seeking from an employee something which is unjust or unreasonable. This principle is one which should “be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer”,[73] such as to issue a warning to an employee.

It would be unjust to issue a warning to an employee if the employee did not engage in the conduct the subject of the warning. That is not this case. I have found that Mr Delves engaged in the conduct which is the subject of the “partially substantiated” part of allegation 5.

The reasonableness of a decision to issue a warning to an employee must be judged objectively having regard to all the circumstances.[74] It is not necessary to show that the decision in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties.[75] The test is not whether the decision is so unreasonable that no reasonable person would have made the decision.[76] There may be a range of options open to an employer within the bounds of reasonableness.[77] A decision which does not have an evident or intelligible justification will be unreasonable.[78]

I accept the AMOU’s contention that the Port Authority’s investigation and decision-making process in relation to allegation 5 was deficient in a number of respects, including the following:

(a)Mr Josh Keech, formerly employed by the Port Authority in the position of Head of People & Culture, directed Ms Phillips, contrary to the approach she believed would have been appropriate, not to attempt to speak to Mr Marks or the NCIG witness to the interaction between Mr Delves and Mr Marks to ask them questions about the incident, and in particular the differences in the accounts given by Mr Delves and Mr Marks (in his brief email of 1 December 2022). In my view, it would have been appropriate in the circumstances for the Port Authority to have made attempts to speak to Mr Marks and the NCIG witness as part of its investigation into the incident.
(b)The Port Authority found that allegations 1-4 were “unsubstantiated”, yet Mr Ernst took those allegations into account, in a manner adverse to Mr Delves, in deciding to give him a final warning.[79] A finding that an allegation is “unsubstantiated” is made when the decision maker is not satisfied, on the balance of probabilities, that the alleged conduct occurred. In my view, it is illogical and unfair to make a finding that an allegation is “unsubstantiated” and then hold that matter against the employee when considering other allegations and the nature of disciplinary action that should be taken against the employee.
(c)The Port Authority refused to provide any recordings or transcript of the two-way radio communications from 1 December 2022 to Mr Delves. Ms Phillips listened to those recordings and prepared a transcript of them as part of her investigation into the incident. There were disputes as to what was said by Mr Marks and Mr Delves on the two-way radios. It would have been appropriate, in my view, for the recordings and transcript of the two-way radio communications to be provided to Mr Delves.
(d)The Port Authority did not identify with clarity the parts of allegation 5 which it found had been substantiated.

I do not accept the AMOU’s argument that it was procedurally unfair of the Port Authority not to provide Mr Delves with a copy of the email from Mr Marks sent on 1 December 2022. The Port Authority communicated the allegations against Mr Delves to him in writing and gave him an opportunity to respond to those allegations. Nor do I accept that it was unfair of the Port Authority not to agree to Mr Marks’ request for a mediation in circumstances where it had investigated the matter and made a decision that Mr Delves had breached the Code of Conduct & Values.

Having regard to the deficiencies in the Port Authority’s investigation and decision-making process, I agree with the AMOU’s argument that I should not give any weight to the findings made by the Port Authority as to what happened during the interaction between Mr Delves and Mr Marks on 1 December 2022 and the decision by the Port Authority to issue the Warning to Mr Delves. However, I have made my own findings, based on the evidence before the Commission, as to what relevantly happened on 1 December 2022. My finding is that Mr Delves engaged in the conduct which is the subject of the “partially substantiated” part of allegation 5. Mr Delves’ conduct in that regard breached his obligation under the Code of Conduct & Values, as set out in the Warning.[80] This weighs in support of a conclusion that it was just and reasonable in the circumstances for the Port Authority to issue the Warning to Mr Delves.

By letter dated 5 January 2021, Mr Delves was given a written warning for unprofessional conduct on 20 December 2020.[81] Save for the allegation of swearing, Mr Delves denied all the allegations relating to this earlier warning. The Port Authority found that Mr Delves breached the Code of Conduct by acting in an inappropriate manner during his communications with NCIG shore staff. Mr Delves was put on notice that if in the future he conducted himself in a manner that was not appropriate to his role as a Marine Pilot, or was inconsistent with the Port Authority’s values, or in breach of the Port Authority's policies or procedures, then further disciplinary action may be taken against him.[82] Mr Delves did not agree with the finding made by the Port Authority or its decision to issue him with a warning in respect of the incident on 20 December 2020, but he chose not to formally dispute the warning because the investigator left the organisation a few weeks later and there was a new harbour master.[83] There was little evidence adduced before the Commission about the facts relating to this earlier warning.

In my view, it is relevant and appropriate to have regard to the fact that Mr Delves had received a prior written warning for breaching the Code of Conduct for acting in an inappropriate manner when assessing the reasonableness of the decision by the Port Authority to issue a final warning to Mr Delves as a result of his interaction with Mr Marks on 1 December 2022. Even though Mr Delves did not agree with the finding made in respect of the earlier matter on 20 December 2020, the fact that (a) he admitted to part of the alleged conduct and (b) he was warned, in writing, that any further breach of the Code of Conduct or other policy or procedure may result in further disciplinary action being taken against him means that some weight, albeit not significant weight, should be attributed to the earlier warning when assessing whether it was reasonable for the Port Authority to issue a final warning to Mr Delves in respect of the incident on 1 December 2022. It would have been appropriate to attribute more weight to the previous final warning if all the alleged conduct had been admitted by Mr Delves or detailed evidence had been adduced in these proceedings about the prior warning and I had made a finding that part or all of the disputed conduct had occurred and it warranted a warning being given to Mr Delves. I do not agree with the AMOU’s submission that the earlier warning should be disregarded and given no weight.

In the circumstances, I consider that issuing the Warning to Mr Delves was a proportionate response to the conduct in which he engaged in connection with the partially substantiated part of allegation 5. In assessing the proportionality of the Warning, I have given weight to the fact that Mr Delves apologised, asked for the opportunity to speak with Mr Marks to apologise to him,[84] and undertook communication coaching following the incident.[85] I have also considered the nature and seriousness of the conduct in which Mr Delves engaged in connection with the substantiated part of allegation 5. The conduct did not, in my view, warrant dismissal, but it was inappropriate and in breach of the Code of Conduct & Values. The conduct was not in line with the ‘customer centric culture’ the Port Authority is looking to achieve.[86] Mr Delves was not given the Warning simply because he raised an issue with Mr Marks about his communication over the two-way radio. The evidence demonstrates that there may be occasions where it is appropriate for a Wharf Officer to communicate a message to a Marine Pilot over the two-way radio during a berthing process, but in other circumstances such communications, particularly lengthy or numerous communications, may give rise to operational risks and warrant the Marine Pilot speaking to the Wharf Officer after the event about reducing such risks in the future. The reason the Warning was given to Mr Delves was because of the manner and content of his communication to Mr Marks on 1 December 2022. My assessment that the Warning was not a disproportionate response to the conduct in which Mr Delves engaged weighs in support of a conclusion that the Warning was reasonable.

The fact that the conduct in which Mr Delves engaged in connection with the “partially substantiated” part of allegation 5 resulted in him breaching the Code of Conduct & Values, which warranted a proportionate disciplinary response, provides an evident and intelligible justification for the decision to issue the Warning to Mr Delves. This weighs in support of a conclusion that it was reasonable in the circumstances for the Port Authority to issue the Warning to Mr Delves.

For the reasons given, I am satisfied that it was reasonable and just in the circumstances for the Port Authority to issue the Warning to Mr Delves.

Conclusion

The answers to the Questions posed by the parties for my determination in this arbitration are as follows:

(a) yes; and
(b) yes

It follows that I decline to grant any of the relief sought by the AMOU in its application.

DEPUTY PRESIDENT

Appearances:

Mr J Kennedy, solicitor, for the AMOU
Ms L Shanahan, solicitor, for the Port Authority

Hearing details:

2023.
Newcastle:
August 14.

Final written submissions:

11 September 2023

[1] Clause 15(e) of the Agreement

[2] Court Book at p 239

[3] Ex R2

[4] [2022] FWC 1699

[5] Clause 37.16 of the BMA Enterprise Agreement 2018

[6] (2016) 244 FCR 178 at [29]

[7] [2019] FWCFB 102

[8] [2021] FWC 1049

[9] [2018] FWC 4271

[10] [2020] FWC 423

[11] (1984) 295 CAR 188

[12] Sections 739(3) & (4) and 595(4) of the Act;

[13] Section 590(1) of the Act

[14] Section 590(2)(i) of the Act

[15] Section 590(2)(a) of the Act

[16] Section 590(2)(c) of the Act

[17] Lend Lease Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU[2015] FWCFB 1889 at [22]

[18] AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]

[19] See paragraphs [7]-[8] above

[20] [1995] HCA 24

[21] (1990) 27 FCR 427 at 456

[22] Section 577(1)(a) of the Act

[23] Court Book at p 239

[24] Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

[25] Court Book at pp 19-21

[26] Court Book at pp 254-258

[27] Ex R3

[28] Court Book at p 256

[29] Court Book at p 255

[30] Ibid

[31] Ibid

[32] Court Book at p 257

[33] Court Book at p 258

[34] Ex R3 at [23]-[24] & [37]-[40]

[35] Ex A4 at [35]

[36] Ex A4 at [5] & [29]

[37] Ex A4 at [5]

[38] Ex A3 at [11]-[27]

[39] Ex A3 at [58]

[40] Court Book at p 247

[41] Ex A3 at [59]-[67]

[42] Court Book at p 74

[43] Ex R2 at [12]-[23]

[44] Court Book at pp 220-221

[45] Ex R2 at [34]

[46] Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at [97]-[99]

[47] ACCC v Olex [2017] FCA 222 at [484]

[48] Court Book at pp 19-21

[49] Ex R4 at [18]

[50] Corrective Services NSW and Fraser [2015] NSWIRComm 1 at [187]-[188]

[51] Ex A4 at [5]

[52] Ex A4 at [35]

[53] Ex A3 at [50]

[54] Court Book at p 257 (page 4 of the Warning)

[55] Ex A3 at [24]

[56] Court Book at p 257 (page 4 of the Warning)

[57] Court Book at pp 249-253

[58] Ex A3 at [116]-[117]

[59] Ex A3 at [81]

[60] Court Book at p 251

[61] Ex A4 at [60]

[62] Court Book at p 251

[63] Court Book at p 252

[64] Ibid

[65] Ibid

[66] Court Book at p 20

[67] Court Book at p 253

[68] Court Book at p 258

[69] Ex A4 at [16]

[70] Court Book at p 258

[71] Ex A3 at [60]

[72] Court Book at pp 20 & 257

[73] Lend Lease at [27]

[74] CFMMEU v Mt Arthur Coal[2021] FWCFB 6059 at [71]-[80] & [259]-[264]; BHP Coal at [157]

[75] Ibid

[76] Ibid

[77] Ibid

[78] Ibid

[79] Ex R4 at [15]

[80] Court Book at the foot of p 20 and the top of p 21

[81] Court Book at pp 69-70

[82] Court Book at p 70

[83] Ex A3 at [41]

[84] Court Book at p 112

[85] Court Book at pp 119-124

[86] Ex R4 at [20]

Printed by authority of the Commonwealth Government Printer

Allegation	Finding
Allegation 1 – MV Woodgate As you boarded the vessel, you were shouting at the deck crew, in particular, at the second officer who asked you if he could secure the gangway.	Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.
Allegation 2 – MV Woodgate When you were with the Master on the bridge, you were raising your voice to him. You appeared annoyed that the crew were not wearing their face masks.	Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.
Allegation 3 – MV Woodgate Whilst on the bridge with the Master, you asked about the operation of the horn and appeared to become annoyed and shouted at the Master and the crew when the Master deployed the horn to display its correct operation.	Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.
Allegation 4 – MV Woodgate Whilst on the bridge, you laughed mockingly and in a condescending tone at the third officer when he provided his response to your query regarding the gyro compass error.	Unsubstantiated. In the absence of audio recordings from the vessel and witness interviews, it is not possible to verify this allegation.
Allegation 5 – Port of Newcastle 1 December 2022 at approximately 0230. the vessel Global Bonanza was berthing at K8 piloted by you. The wharf officer was aware that the midship draught marks were going to be close to a fender once the vessel was in the marked position. Having worked alongside you on previous occasions, the wharf officer is of the opinion you typically do not acknowledge to the wharf officer when the ship is in position or ask if the wharf officers are happy with the bridge position. Therefore, the wharf officer felt it was necessary to make you aware of the proximity of the mid ship draught marks to the fender as they were unaware of when you are in the final position. The wharf officer called you on the radio when the vessel was along side and touching all fenders but with no lines ashore. His message was short and precise "Pilot wharf, midships is 2M fwd of the fender and closing". There was no immediate communication at the time between you and the tugs. You replied, to the effect, “The ship will stay where it is once on the mark". At 0300 the vessel was all fast and the wharf officer greeted you at the foot of the gangway. You put your hand on his shoulder and in a condescending tone said “You are obviously new and you should know that you never talk to me unless talked to first. l don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles".	Partially substantiated. The two-way radio audio recordings show no evidence of the communication between the wharf officer, Mr Marks and Mr Delves. However, Mr Delves admitted he took Mr Marks aside after he disembarked & had a conversation relating to his communication of “radio silence on the wharf". Mr Delves admitted saying, “You called me when I was about to berth. l need you to refrain from calling the pilot until the pilot calls you". Mr Delves admitted to stating "he must be new". to placing his hand on Mr Marks’ shoulder at the end of the conversation & to discussing 'training', Mr Delves denied making the statement, "I don’t even know why wharf officers have radios and that you wharf officers are not properly trained for your roles" although it must be noted that both parties’ version of events referenced ‘training’.