Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd - [2022] FWC 1699

[2022] FWC 1699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union

BHP Coal Pty Ltd

(C2021/4037)

DEPUTY PRESIDENT ASBURY

BRISBANE, 1 JULY 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

BACKGROUND

The Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division (MEU/Applicant), applied under s.739 of the Fair Work Act 2009 (FW Act) seeking that the Fair Work Commission (Commission) deal with a dispute under the dispute resolution procedure in the BMA Enterprise Agreement 2018 (Agreement). The Respondent is BHP Coal Pty Ltd (BHP/Respondent). The dispute relates to the imposition of a disciplinary sanction by the Respondent against Mr Russell Robertson, a member of the Applicant and employee of the Respondent at the Goonyella Riverside Mine (Mine).

The matter was not resolved by conciliation and it is not in dispute that the Commission is empowered to arbitrate the dispute in accordance with the Dispute Settlement Procedure in clause 37 of the 2018 Agreement. The parties agreed that the question for determination is: “Was it reasonable, in all of the circumstances, for the Respondent to issue a Level 3 Final Warning to Mr Robertson?”

The Respondent initially put eight allegations to Mr Robertson. Two allegations were found to have been substantiated. As a result, the Level 3 Final Warning was given to Mr Robertson on the basis that it was found that Mr Robertson breached BHP Charter Values and Code of Conduct because:

· “Approximately 12 months ago” Mr Robertson was disrespectful to a step-up supervisor, Mr Terry Duncan, during a prestart meeting, and failed to follow a lawful and reasonable direction given by Mr Duncan that Mr Robertson stop using his mobile telephone (allegation 2); and
· On 10 November 2020, Mr Robertson communicated with a fellow employee, Mr Cameron Roberts, in a manner that was inappropriate and disrespectful (allegation 8).

The MEU contended that BHP’s finding that allegation 2 was substantiated, is unsound, because of inexactness of proof about what occurred including the date and time of the alleged incident and denial of procedural fairness to Mr Robertson. In relation to allegation 8, Mr Robertson accepted that he had a discussion with Mr Roberts about a standard operating procedure (SOP) in which Mr Robertson said: “You cannot break a SOP…If you are a weak cunt about that someone is going to get seriously hurt.” The MEU contends that the imposition of a final written warning was disproportionate considering Mr Robertson’s frank admissions about this incident, the context in which it occurred and the fact that the other worker involved in the incident had not complained and had specifically stated that he did not wish for the matter to be pursued.

BHP maintained that Mr Robertson engaged in the conduct outlined in allegation 2 and that context and other factors raised by Mr Robertson in relation to allegation 8 were irrelevant. BHP also maintained that the conduct engaged in by Mr Robertson variously breached BHP’s Code of Conduct in relation to workplace equality, inclusion and respect. Accordingly, it was reasonable in the circumstances for the Level 3 Final Warning to be issued to Mr Robertson.

DIRECTIONS AND HEARING

Directions were issued requiring that the parties file and serve written outlines of submissions and statements of evidence (including all documents referred to in those statements) outlining the evidence of each witness to be called at the hearing. BHP’s material was also required to respond to the CFMMEU’s material and the CFMMEU was directed to provide any further material in reply. All material was required to be filed and served prior to the hearing and the Directions stated that witness statements were designed to take the place of evidence-in-chief and that leave must be sought at the hearing to adduce further evidence-in-chief.

A hearing was conducted in Mackay. Consistent with clause 37.18 of the 2018 Agreement, which provides that either party may choose to be represented by a legal practitioner during conciliation or arbitration proceedings, the CFMMEU was represented by Mr L Tiley of Hall Payne Lawyers and BHP was represented by Ms S Brenton of Allens.

Evidence for the CFMMEU was given by:

· Mr Russell Robertson, Mine employee and the CFMMEU member the subject of this dispute;[1]
· Mr Cameron Roberts, Mine employee;[2]
· Mr Les Bentlin, Mine employee, Vice President of the CFMMEU Goonyella Riverside Mine Lodge and CFMMEU delegate;[3]
· Mr Rob Oram, Mine employee and CFMMEU delegate;[4] and
· Mr Robert Grieve, also known as Bob, heavy vehicle operator at the Mine, Vice President of the CFMMEU Goonyella Riverside Mine Lodge and CFMMEU delegate.[5]

Evidence for BHP was given by:

· Mr Robert Gibbons, Coal Mining Superintendent at the Mine;[6] and
· Mr Ron Van Wyk, Mine Services Supervisor.[7]

Mr Bentlin, Mr Grieve and Mr Van Wyk were not required for cross-examination and their statements were admitted into evidence without objection. Other witnesses gave their evidence in person and were cross-examined.

In a decision issued on 30 May 2022, I determined that it was not reasonable in all the circumstances for the Respondent to issue a Level 3 Final Warning to Mr Robertson and that the question for determination should be answered “No”. These are my reasons for that decision.

EVIDENCE

The evidence can be summarised as follows. Mr Robertson is a very experienced mine worker, a long-time member and official of the CFMMEU and has been employed at the Mine since 2001. On the morning of 18 November 2020, Mr Robertson was asked to attend a meeting at 4:30pm that afternoon. Mr Robertson was not given any detail about the meeting but was advised that he could bring a support person. Mr Robertson and Mr Oram (Mr Robertson’s support person) attended the meeting. Mr Gibbons and Mr Lachlan McNamara, Superintendent Coal Mining, attended the meeting on behalf of BHP.

Mr Roberson was told at the meeting that he was being stood down with immediate effect pending the outcome of an investigation about a BMA Code of Conduct breach regarding disrespectful behaviour. Mr Robertson’s request for further information about the allegations and the timeframe was refused and he was told that he would receive further information when the investigation was completed. Mr Robertson’s version of the discussion at the meeting was confirmed by Mr Oram, who took notes on his behalf.

At the conclusion of the meeting, Mr Gibbons handed Mr Robertson a letter dated 18 November 2020 headed “Notification of Stand Aside”. That letter advises Mr Robertson that he is being “stood aside” pending an investigation into “your conduct”. The meeting lasted around five minutes. Mr Robertson states he was extremely distressed following the meeting because he had no idea why he had been stood down and was concerned that he could potentially lose his job. Mr Robertson was also concerned that Mr Gibbons had enough information to justify standing him down but could not give him a reason why this action was being taken.

Approximately two or three weeks later, Mr Gibbons phoned Mr Robertson and advised that he was commencing four weeks of leave and would deal with the matter when he returned. Mr Robertson expressed his displeasure about the delay this would cause in the investigation and was informed by Mr Gibbons that the matter was complex and he would not be handing it off to someone else to deal with while he was on leave. Mr Robertson was dissatisfied with this response and contacted Mr Simon West, President of the Goonyella Riverside Mine Lodge.

On 20 December 2020, Mr West corresponded with Mr Shaun Milford, Senior Site Executive, concerning the situation. In that correspondence, Mr West pointed out a number of issues including that: written notification of the meeting required by the 2018 Agreement was not provided to Mr Robertson; the investigation had been placed on hold while Mr Gibbons went on annual leave; a cloud of uncertainty was left hanging over Mr Robertson causing distress to him and his family during the festive season; and resources should be directed at the investigation to complete it in a shorter time frame. The letter also stated that Mr West had serious ethical concerns about the investigation based on the matters raised in the letter.

Mr West did not receive a response to his letter. The stand down continued throughout the Christmas period which upset Mr Robertson and his wife and children, and ruined Christmas for the entire family. Mr Robertson also missed several work-related planning and personal development training sessions held during the period he was stood down.

On 14 January 2021, Mr Stephen Smyth, District President of the CFMMEU, also corresponded with Mr Gibbons expressing concerns about the process to date and the failure to take steps or alternatively to communicate with Mr Robertson about the investigation. The letter also pointed out the negative effects that absence from the workplace was having on Mr Robertson and called for the immediate reinstatement of Mr Robertson to his employment.

On 15 January 2021, Mr Gibbons telephoned Mr Robertson and asked whether Mr Robertson was available to participate in an investigation meeting on 19 January 2021. Mr Robertson said he was available any day because he wanted to deal with the matter and was concerned about the delay. Mr Gibbons advised Mr Robertson he would contact him when he had organised a time to meet. Mr Robertson did not hear from Mr Gibbons until 20 January 2021. Mr Gibbons requested, and Mr Robertson agreed, to meet at 8.00 am the following day. Mr Robertson arranged for Mr Bentlin to attend as his support person.

The meeting took place as scheduled on 21 January 2021. In attendance were Mr Robertson and Mr Bentlin, as well as Mr Gibbons and Mr Mark Mellor, Supervisor. Mr Bentlin and Mr Mellor took notes. Mr Robertson’s evidence concerning the discussion at that meeting, based on Mr Bentlin’s notes, was that Mr Robertson emphasised that given the time between the events and the investigation, he would like to have the allegations in writing so that he had time to digest them. Mr Robertson also requested specifics such as date and time and, where possible, location. The meeting notes taken by Mr Bentlin also indicated that Mr Robertson repeatedly asked for each allegation to be put in writing and that Mr Gibbons refused to do so and stated that Mr Bentlin could write the allegations down.

It is also recorded that when Mr Robertson protested and asked how he could remember something that happened seven or eight months ago, Mr Gibbons responded by stating that Mr Robertson should respond to the best of his recollection and do the best that he could. Mr Bentlin also protested at the lack of detail being provided given the time that the investigation had taken and maintained the request for the allegations to be provided in writing. Mr Gibbons indicated that he would see what he could do about this.

Mr Robertson remained stood down after the meeting. On 25 January 2021, Mr Robertson received a letter from Mr Gibbons stating that while not within BHP’s current procedure to provide written information, an exception had been made as the allegations spanned over an extended period. The letter set out 8 allegations as follows, and noted that no detail had been withheld in relation to the date, time or location of the events:

“1. In August 2020, while in the crib hut, it is alleged that you made a comment with words to the effect of ‘[name of female employee] wouldn’t know a piece of dirt from a piece of coal. She is only where she is because she is a female and that [is] what management want’.
2. Approximately 12 months ago, Terry Duncan and Ron Van Wyk were conducting a joint pre-start meeting. It is alleged that during this meeting, Terry gave you a direction to stop using your phone to which you responded with ‘I’m right’. Ron then gave you the same direction and you complied. Your conduct on this occasion was perceived as disrespectful. By conducting yourself in this manner, it may be considered a failure to follow a lawful and reasonable direction.
3. On an unknown date, when Terry Duncan was in the role of step-up Supervisor, he had asked Cameron Roberts and yourself to team up to carry out a particular task. It is alleged that approximately 2 hours later, Cameron was still as the pump shed. When Terry asked him why he was there, Cameron explained that you had told him to find something else to do because you were going to go with Shane Cornell. By conducting yourself in this manner, it may be considered a failure to follow a lawful and reasonable direction.
4. On an unknown date, you failed to attend work for your rostered shift. At this time, Terry Duncan was again in the role of step-up Supervisor. Upon your return to work, he asked you about your absence the day prior to which you responded with words to the effect of ‘You’re not my Supervisor, I tried to call the Superintendent’. Your conduct on this occasion was perceived as disrespectful. By conducting yourself in this manner, it may be considered a failure to follow a lawful and reasonable direction.
5. On an unknown date, while speaking to Tony Deluca, it is alleged that you stated words to the effect of ‘Terry Duncan told the crew that you can’t do your job properly and told us to send emails to the Superintendent to say the same’. Your conduct on this occasion was perceived as disrespectful.
6. On an unknown date, while you and several other Coal Mine Workers were welding a piece of pipe, it is reported that Terry Duncan asked ‘Can a couple of us go to another job?’. It is alleged that you responded with words to the effect of ‘you need to settle down, you’re either with us or you’re fucking against us, there is no middle ground’. Your conduct on this occasion was perceived as confrontational, intimidating, and disrespectful.
7. It is reported that you have made disrespectful comments in relation to people who train labour hire and contractor personnel. You are of the opinion that these people are costing EA jobs. Specifically, in June 2020, while speaking to Terry at a pre-start meeting, it is alleged that you stated ‘Don’t you dare train anyone who comes on board’ in an aggressive manner.
8. On 10 November 2020, while speaking to Cameron Roberts, it is alleged that you stated words to the effect of ‘you’re a weak cunt, you went and did what Tony asked you to do’. Your conduct on this occasion was perceived as disrespectful.”

Mr Robertson said that on reviewing the allegations set out in the letter he noted that most related to a step-up supervisor, Mr Terry Duncan, who had been the subject of a written complaint that Mr Robertson made to Mr Gibbons in May 2020. While Mr Gibbons had acknowledged Mr Robertson’s complaint at the time it was made, he did not take further action in relation to it.

On 29 January 2021, Mr Robertson provided a written response to the allegations to Mr Gibbons. As previously noted, ultimately only allegations 2 and 8 were substantiated. In relation to those allegations and other relevant matters, Mr Robertson’s response pointed out that the majority of allegations were “vague, imprecise and undated” and that he could not respond to several allegations due to lack of particulars, and relevantly was in the following terms:

“Complaint regarding Terry Duncan in or about May 2020
Further, I note that the majority of allegations appear to have been made by Terry Duncan. In or about May 2020, I sent you an email which raised a complaint about Mr Duncan. Specifically, I complained about his aggressive and confrontational conduct. My complaint was acknowledged by you at the time, but no further progress (to my knowledge) has been made on the matter.
As a number of the allegations the subject of your letter appear to relate to the same period of time that I sent my complaint [to] you, I ask that you please locate my email and take into consideration when determining the outcome of this matter and, more specifically, the credibility of Mr Duncan in circumstances where an allegation involves an assessment of his word against mine.
…
Allegation Two
I do not recall the events the subject of this allegations and can only deny it. I confirm that I wish to be heard on this matter, but I am unable to provide any meaningful response until I am provided with further and better particulars, such as:
1. the date that the company received a complaint regarding this matter;
2. the date that the events are said to have occurred;
3. the shift that I was working on the relevant day;
4. confirmation of whether the meeting had commenced prior to my scheduled shift commencing; and
5. where the meeting was conducted.
Upon receiving these, I confirm that I wish to be afforded a further opportunity to provide a written response to the allegation.
…
Allegation Eight
I deny this allegation in the manner in which it has been portrayed. I recall the events on this date very clearly. I had a conversation with Cameron Roberts and he described performing an act which was a blatant, and dangerous, breach of a standard operating procedure (SOP).
Specifically, Mr Deluca directed Mr Roberts to move a wheel pump during the pre-start meeting for the previous shift. The location required the coal mine workers who were performing the task to drive off the working lease which meant that they needed to be driving a registered vehicle. As none of the pump trucks are registered, Mr Roberts used a light vehicle however the vehicle that he chose was not rated to move the pumps. As a result, I considered that Mr Roberts was in breach of the safety and health management system that was in place.
Further, the words that I said to Mr Roberts were to the effect of, “You cannot break the SOP or breach a SWI. If you are a weak cunt about that someone is going to get seriously hurt”. I said those words to him because I felt very stressed about what we had discussed and the gravity of the risk that his actions created, not only for himself, but for me and other coal mine workers.
My comments need to be viewed in the context in which these events occurred and my primary focus of ensuring that everyone goes home safe after each shift that we work. Mr Roberts’ conduct on the day had the potential to cause catastrophic and life changing injuries for himself and those working around him. I considered that my actions in approaching Mr Roberts about his conduct to be consistent with the company’s expectation for coal mine workers to speak out about unsafe practice that they witness.
Conclusion
I confirm that I have spent a considerable period trying to recall the events the subject of Allegations One to Six but am unable to provide any meaningful response due to the lack of basic particulars. Further, the lack of basic particulars also means that I am also unable to identify any witnesses that should be interviewed as part of the investigation.
I confirm that I do wish to be heard regarding this matter upon receiving the requested further and better particulars. However, if the company is unable to provide me with those particulars, I respectfully submit that the only available option for the company would be to find that the allegations cannot be substantiated due to the inexact nature of them.”

Mr Robertson did not provide any response to the appropriate penalty that might be imposed in the event that some of the allegations could be substantiated, because his view was that the matter was only being investigated at this stage and potential disciplinary action had not yet been raised with him.

In relation to allegation 2, Mr Robertson’s evidence is that he genuinely did not remember the event alleged to have occurred. In Mr Robertson’s view, it would have been possible for Mr Gibbons to determine the date given that Mr Duncan and Mr Van Wyk rarely had overlapping shifts because they worked on different rosters. Mr Robertson had also been on leave around that period and was not able to determine if he had even been at work at the time alleged or what witnesses might have been available to him. Mr Robertson said that it is not uncommon for people to use their mobile phones at the beginning of prestart meetings because work has not technically commenced. Further, Mr Robertson was not able to say whether he was on the phone because of an issue with his children such as one of them being sick and needing to go home from school.

Allegation 8 relates to an incident on 10 November 2020. As set out in his response, Mr Mr Robertson accepts that he made a statement to Mr Roberts about breaching a standard operating procedure (SOP) or safe work instruction (SWI) in which he told Mr Roberts that if he was a “weak cunt about that someone was going to get seriously hurt.” Mr Robertson’s evidence is that the events were very minor and not unlike the type of banter that happens between coal miners every day of the week. According to Mr Robertson, it is a male dominated environment and coal mine workers often call each other names that in other industries may be considered offensive. In comparison to some other instances, Mr Robertson considered his use of language to be “quite vanilla”. Mr Robertson said that when he made the comment, he was frustrated that Mr Roberts had deemed it appropriate to go against a SOP, which is grounds for disciplinary action.

Mr Robertson stated that SOPs are there to protect the safety of all coal mine workers and no-one, not even the Site Senior Executive can go against them unless there has been a properly documented risk assessment conducted to ensure the risk is appropriately managed. According to Mr Robertson, a coal mine worker who identifies unsafe practices has a responsibility to ensure that something is said about it and that this is what he did. Mr Robertson also said that it is unclear why he had to answer an allegation about calling out a coal mine worker for disregarding a SOP, yet Mr Gibbons did not deem it appropriate to investigate the actual event that prompted him to say those words to Mr Roberts.

A further meeting occurred on 16 February 2021. Mr Robertson attended the meeting with Mr Grieve as his representative. Mr Gibbons and Mr McNamara attended on behalf of BHP. Mr Robertson assumed that the purpose of the meeting was for BHP to provide the further particulars he had requested. Mr Robertson said that Mr Gibbons informed him that the investigation was complete and that it had been determined that he had been disrespectful to Mr Duncan regarding mobile phone use and did not follow a lawful and reasonable direction to stop using his mobile telephone. Mr Robertson was also informed that he had been disrespectful to Mr Roberts. Further, Mr Robertson was informed that he was to be given a Level 3 Final Warning. Mr Robertson said that he asked whether the additional information that he had requested would be provided and was informed that it would not and that no dates could be given to him other than in relation to allegation 4 which had not been substantiated. Mr Grieve confirmed Mr Robertson’s evidence about the meeting on 16 February 2021.

The Respondent confirmed the outcome of the investigation process by letter dated 16 February 2021, handed to Mr Robertson at the conclusion of the meeting. That letter stated, in part:

“I refer to our meeting of 21/1/2021 and 16 February 2021, which was held in relation to your conduct in the workplace. I note that you elected to [bring] Les Bentlin and Bob Grieves as your support person present at our meeting.
The investigation is now complete, and the findings have been made. The investigation found that:
- Approximately 12 months ago, you were disrespectful towards Mr Terry Duncan during a pre-start meeting;
- At this time, you failed to follow a lawful and reasonable direction when Mr Duncan asked you to stop using your mobile phone;
- On 10 November 2020, your communication with Mr Cameron Roberts was inappropriate and disrespectful.
…
I have applied the BMA Guideline to Fair Play Policy and taken all relevant matters into account, including your response, the findings of the investigation and your employment history.
In the circumstances, I have decided to issue you with a Final Written Warning…”

Mr Robertson said that he felt sideswiped at the meeting and could not understand how the second allegation had been substantiated in circumstances where the Respondent apparently could not identify when the alleged conduct was said to have occurred. Mr Robertson also felt that a Level 3 Final Warning in relation to allegation 8 was completely disproportionate to the conduct.

Mr Robertson was concerned he had no opportunity to respond to the imposition of a Level 3 final warning before it was imposed. Had Mr Robertson been given the opportunity to do so, he would have suggested a requirement to complete refresher training in the BMA code of conduct and other relevant policies. Mr Robertson would also have submitted to the Respondent that in considering the penalty to impose, it should consider the effect that such a lengthy stand down had on him and his family over the Christmas period.

Mr Robertson said he would also have offered to apologise to Mr Roberts and did so on 17 February 2021, despite not being asked to do so. Mr Robertson’s evidence is that upon receiving the apology, Mr Roberts was confused and said that he did not know that the matter had resulted in Mr Robertson being given a Level 3 Final Warning. Mr Robertson also said that Mr Roberts stated that he had not made a complaint and was not upset by the words used by Mr Robertson that day. Further, Mr Roberts confirmed that he had informed Mr Gibbons that he did not want the matter to be pursued by the Respondent.

In relation to the impact of the Level 3 Final Warning, Mr Robertson said that it will hang over his head for 3 years as it will be reduced to a Level 2 after one year, a Level 1 after two years and then removed from his file after a third year. While the warning remains on Mr Robertson’s file it could also be relied on by BMA to justify imposing a more serious disciplinary penalty against him in the future, including the termination of his employment.

Mr Robertson also gave evidence about the process he engaged in to dispute Level 3 Final Warning. Relevantly, during a meeting on 26 March 2021 in relation to the dispute, attended by Mr Gee and Mr Gibbons, Mr Robertson, who attended with Mr Grieves as his representative, stated that he had complained about Mr Duncan and that this was the reason he had asked for the date on which the alleged conduct, the subject of allegation 2, had occurred. At a further meeting held on 23 April 2021, Mr Robertson gave Mr Gee a copy of a letter from Mr Oram dated 4 November 2018, addressed to Mr Gibbons in which Mr Oram complained about Mr Duncan’s conduct. Mr Robertson questioned Mr Gee as to why Mr Duncan’s complaint had been investigated but complaints made by Mr Robertson and Mr Oram had not.

Mr Robertson said that in relation to allegation 2, he had asked Mr Gibbons whether Mr Duncan was supervising the crew on the relevant date, because the Respondent had agreed to return Mr Duncan to his normal duties as a coal mine worker, after a long absence from the crew around that time. According to Mr Robertson, Mr Duncan was returned to his former role because the Goonyella Riverside Lodge raised a dispute alleging that Mr Duncan had been behaving inappropriately in his temporary role as supervisor.

Mr Robertson also referred to the complaint made by Mr Duncan on 18 November 2020 tendered by Mr Gibbons in his statement[8]. Mr Robertson said that this is the first time he has been advised of the specifics of Mr Duncan’s complaint against him and it contains inaccuracies. Mr Robertson responded to these matters. Mr Robertson also maintained that he made a complaint made against Mr Duncan and asserted that Mr Duncan made a complaint against him in retaliation for being removed from his role as supervisor following a dispute raised by the Goonyella Riverside Lodge of the CFMMEU.

In response to the statement of Mr Van Wyk, Mr Robertson said that Mr Gibbons had originally stated that Mr Van Wyk could not recall a date in relation to allegation 2. Mr Robertson said that he was originally told that the alleged incident occurred in August 2020 and it is now clear from Mr Van Wyk’s statement that the date of the alleged incident is January 2020. Mr Robertson also said that he does not understand why the date was not provided to him when he asked.

Under cross-examination, Mr Robertson agreed that it is reasonable for the Respondent to take disciplinary action against a coal mine worker if the worker ignores directions, particularly when it could impact safety. Mr Robertson initially agreed that his evidence is that it is a non-event for a coal mine worker to be called a “cunt” and that he would not want any coal mine worker disciplined for referring to another coal mine worker in this way, even if the coal mine worker referred to is a woman. [9] Later, Mr Robertson accepted that using such language around others could be offensive and the term “cunt” is derogatory to women and inappropriate. Mr Robertson also accepted that using gender offensive words of that kind in a workplace that is aiming to be more inclusive and diverse, is not acceptable. Further, Mr Robertson accepted that calling a colleague a “weak cunt” is inconsistent with BMA’s Code of Conduct.[10]

In response to a question as to whether he thinks that the word “cunt” should be able to be used in a workplace without consequences, Mr Robertson said that it is what he has experienced for the last 30 years but that he is now agreeing that it should not be accepted.[11] Mr Robertson was also asked whether he had taken issue with that type of language being used on site and said that he had not. In response to the proposition that his statement mentions a complaint made by Mr Oram about Mr Duncan using the same word, Mr Robertson said that his issue was with the disparity in treatment between him and Mr Duncan and that he did not want Mr Duncan to face discipline over his conduct. In response to the proposition that he had admitted the conduct and that in Mr Oram’s circumstances it was “he said, she said” Mr Robertson said that when the complaint was made by Mr Oram there was no investigation and he was not called on to provide any evidence. Mr Robertson accepted that BHP attempts to keep investigations confidential. Mr Robertson disagreed that BHP had investigated the safety concern that he alleged caused him to make the comment to Mr Roberts and that no safety issue was identified.

Mr Robertson agreed that at the initial meeting with Mr Gibbons on 18 November 2021, he was told that he was being stood down due to a BMA Code of Conduct breach regarding disrespectful behaviour and that an investigation would occur, and he would remain stood down pending that investigation. Mr Robertson also agreed that at this point, he knew that Mr Gibbons was going to go away and find out as much information as he could. Further, Mr Robertson agreed that in relation to allegation 2, he knew that Mr Gibbons did not have the precise date, but that it was approximately 12 months ago. In this regard, Mr Robertson agreed that the letter setting out the allegations dated 25 January 2021, stated that the conduct referred to in allegation 2 occurred “approximately 12 months ago”.

In relation to the substance of allegation 2, Mr Robertson accepted that on occasion there may have been such an interaction but maintained that he is very dubious about the fact that it had taken 10 months to come up with a date. Mr Robertson also accepted that it is reasonable for the Respondent to take disciplinary action against a coal mine worker who ignores directions in a prestart meeting, particularly where safety issues are discussed.

Mr Roberts, who gave evidence in support of Mr Robertson, said that he works on the same crew as Mr Robertson. Mr Roberts also said that he grew up in Moranbah, has known Mr Robertson since school days and has a lot of time for Mr Robertson. Mr Roberts confirmed that on 10 November 2020, during the prestart meeting, Mr Roberts was requested by a supervisor, Mr Deluca, to move a pump a distance of about 10 metres. Because they were required to drive off the Mine lease to move the pump, it was necessary to use a vehicle that was registered. As none of the pump trucks are registered, Mr Roberts and the other worker involved needed to use a light vehicle. Mr Roberts said that the pump was moved easily and without issue. Later in the shift, Mr Roberts told Mr Robertson how the work was done. Mr Robertson became “visibly upset” because he considered that the task had been undertaken in an unsafe manner. Mr Roberts’ evidence is that Mr Robertson said to him:

“You can’t go against a SOP. Someone will get hurt if you’re weak cunt that doesn’t say no if it’s unsafe.”

Mr Roberts’ view is that the exchange was a non-event and he understood that the purpose of Mr Robertson’s comment was to pull him up in good faith for something that Mr Robertson thought had been done unsafely. Mr Roberts said that he was not offended by what Mr Robertson said to him and in his 30 years working in the coal mining industry he had heard, and been called, worse. Mr Roberts also said that the event started and finished there as far as he was concerned.

Later that day while speaking to Mr Deluca, Mr Roberts briefly mentioned the exchange with Mr Robertson and said: “Russell went off his nana when I told him how we moved the pump.” Mr Roberts said that his comment to Mr Deluca was part of a bigger conversation and was made in passing. After making the comment Mr Roberts moved on to start talking to Mr Deluca about something else. Mr Roberts also said while he noticed Mr Robertson missing from work for some months, he was not aware that he had been “dragged into the matter” until he was called into a meeting some time in January or February 2021 and asked about the events of 10 November 2020. Mr Roberts said that he told Mr Gibbons that he did not have a problem with Mr Robertson and did not want anything to do with the matter. Mr Roberts said that he did not realise until later, that Mr Gibbons ignored what he said and issued Mr Robertson with a Level 3 Final Warning because of what Mr Robertson said to Mr Roberts.

Mr Roberts said that when Mr Robertson “went off his nana” during the incident on 10 November 2020, he was not aggressive and that such behaviour is common at the Mine. Mr Roberts accepted that it should not be usual practice. In response to the proposition that it was significant enough for him to mention Mr Robertson’s behaviour to a colleague (Mr Deluca), Mr Roberts said that he briefly mentioned the incident for around 5 to 6 seconds in a conversation that took place while he was in a car with Mr Deluca for around 20 minutes. While accepting that BHP must take steps to ensure that offensive language and aggressive conduct does not occur in the workplace, the incident with Mr Robertson on 10 November 2021 was a “non-event” to Mr Roberts.

Mr Oram said that on 4 February 2021 he was asked to attend a meeting with Mr Gibbons to discuss an allegation that Mr Robertson, in the presence of other workers, told members of the crew to send emails to Mr Gibbons “outlining how bad of a supervisor Mr Deluca is”. Mr Oram said he corrected Mr Gibbons and informed him that the comment had been made by Mr Duncan and that Mr Robertson had stated that the crew should not do this as it would cause drama. In response to Mr Gibbons’ statement that this was not what he had been told, Mr Oram said he maintained that Mr Duncan had made the comments about Mr Deluca and was the instigator of the drama, and that the wrong person – Mr Robertson – was being accused. Mr Oram also said that he reminded Mr Gibbons that he had previously spoken to Mr Gibbons about Mr Duncan and nothing had come of that discussion.

On or around 4 November 2018, Mr Oram made a complaint to Mr Gibbons about Mr Duncan. Mr Oram said that he had drafted the complaint on his mobile telephone and sought advice from Mr Duncan about whether he should send it to Ethics Point in an email. According to Mr Oram, Mr Duncan looked at the complaint on his mobile telephone and said: “I will deal with it. You don’t have to do anything.” The complaint involved Mr Oram asking Mr Duncan for a key to a shed and being told by Mr Duncan that he could not have key on the basis that: “since every cunt was stealing shit he had to put controls in place”. Mr Oram stated that he told Mr Gibbons that he believed Mr Duncan was trying to intimidate him and that he had been accused of theft. Mr Oram tendered the text from his mobile telephone which concluded with the following statement:

“I ask for an investigation to the conduct used and action to be taken to prevent further scenarios that could potentially enrage an employee to become irate and act/speak in haste.”[12]

Under cross-examination, Mr Oram maintained that on 4 November 2018 he made a complaint against Mr Duncan for behaviour that included using the word “cunt”. Mr Oram agreed that he included that allegation in his complaint because he considered it important for BHP to know that an employee had used that offensive language. Mr Oram also agreed that use of that term is not inclusive, collaborative or supportive behaviour as required by BHP’s Code of Conduct and that he expected that if the allegation that Mr Duncan had called him a cunt was substantiated, he would expect that the Company would do something about it by taking disciplinary action against Mr Duncan. Mr Oram did not agree that dismissal might be appropriate in those circumstances.

Mr Grieve attended the meeting with Mr Oram on 4 February 2021 and confirmed Mr Oram’s evidence about that meeting. Mr Grieve also gave evidence of attending meetings in relation to Mr Robertson’s dispute about the decision to issue him with a Level 3 Final Warning and confirmed Mr Robertson’s evidence about those meetings. Relevantly Mr Grieve’s notes of a meeting he attended with Mr Robertson on 23 April 2021, record that Mr Gee and Mr Gibbons were requested to provide access to Mr Robertson’s archived emails to assist with the dispute. Mr Grieve also records that Mr Robertson stated that he made a complaint about Mr Duncan in August 2020 and wanted to have a clear timeline of events. Mr Grieve’s record of the meeting further states that Mr Robertson continued to ask for a date to be provided for the allegation involving Mr Duncan and for the date on which Mr Duncan returned to his supervisory role. During that meeting Mr Robertson handed Mr Gee a letter from Mr Oram dated 4 November 2018, setting out a complaint Mr Oram made against Mr Duncan. Mr Grieve’s notes record that there was a discussion in which Mr Gee referred to a “theme” of allegations against Mr Robertson made by Mr Duncan and Mr Deluca.

Mr Grieve attended a State level conference on 23 June 2021, at which Mr Robertson’s dispute was discussed. The discussions included the failure of BHP to provide the dates and times of the alleged incidents, and whether Mr Duncan was in a production role or that of a step-up-supervisor at the time the alleged direction was given. There was also a discussion about whether in August 2020 when the alleged incident occurred, Mr Robertson was rostered on shifts with Mr Duncan.

Mr Gibbons is a Coal Mining Superintendent at Goonyella Riverside Mine and has worked at the Mine since 2004. Mr Gibbons’ evidence was that on 9 November 2020, Mr Tony Deluca and Mr John Kennedy raised complaints with Mr Gibbons concerning Mr Robertson’s behaviour. The “complaints” made by Mr Deluca[13] and Mr Kennedy[14] are documented on forms headed “GRM FRM Record of Interview”.

The document concerning Mr Deluca is a statement handwritten on the form in language which is in the first person. There is no cover page for the form as is the case with Mr Kennedy’s statement and the text is neither signed nor dated to indicate when it was written. The pages of the form on which the statement is written are numbered, 5 of 11; 6 of 11 and 8 of 11. Mr Deluca’s statement variously alleges that Mr Robertson will not engage or participate in conversation with him since Mr Robertson returned from a period of being stood down due to disciplinary reasons, and that Mr Robertson has belittled Mr Deluca in the prestart room and escalated interactions to confrontations. Mr Deluca acknowledges that he has not documented these matters as they were not really affecting him, but he has now been informed by a team member that the team member has observed that Mr Robertson has zero respect for Mr Deluca.

Mr Deluca also states that on the same day – Sunday 8 November – he had a discussion with Mr Kennedy about Mr Robertson’s conduct in which Mr Kennedy advised that Mr Robertson’s comments made him feel useless and worthless and that Mr Kennedy felt he was being “intimidated and degraded in front of the team”. Mr Deluca records that he offered Mr Kennedy his support and told Mr Kennedy that he was a valuable member of the team. Mr Deluca also records that after this interaction, he spoke to his one up supervisor “Jason K” who told him to go to the ethics department straight away. Mr Deluca further records the following matter:

“I had a conversation with a team member about the job at [number] and how the job was looking out there on Tue 10^th Nov where I was advised that RR had a go at a team member for doing the job and said you’re a weak c—t you went and did what Tony asked you to do, I asked the member did you feel unsafe or was there any concerns to do that job to receive that feedback, he advised no I didn’t have a problem at all!! Just didn’t appreciate RR comments. [Illegible] most people don’t feel they can speak up about it…”

Mr Kennedy’s “complaint” is also annexed to Mr Gibbons’ statement. It is a handwritten statement in language expressed in the first person. There is a cover sheet numbered 1 of 11, which is partially completed by the insertion of Mr Kennedy’s name as the person interviewed and details of the fact he is engaged as a contractor and is the involved person. Parts of the form to indicate who the interview was conducted by and that person’s position and title and the date and time of the interview, are blank. The complaint is handwritten on a page numbered 5 of 11. A part of the form after the statement, headed “Summary of the interviewees response to questioning”, is blank.

Mr Kennedy’s statement concerns an incident alleged to have occurred on 7 November 2020 in the pump crib shed and to have involved members of the B Pump Crew including Mr Robertson. Mr Kennedy documents a comment Mr Robertson allegedly made to Mr Kennedy in relation to “being lazy”, and Mr Kennedy’s response. Mr Kennedy’s complaint goes on to assert that while banter has previously been good humoured he feels that Mr Robertson is targeting and belittling him with the intention of intimidating Mr Kennedy. Mr Kennedy records that he feels anxious and struggles with the thought of coming to site. Mr Kennedy’s statement is unsigned and undated.

Mr Duncan provided a confidential statement to Mr Gibbons on 18 November 2020, also in relation to Mr Robertson’s behaviour. Mr Duncan’s statement is recorded in an email, sent at 8:14am, to Mr Gibbons, and relevantly for the matters in dispute in these proceedings, provides as follows:

“This following Statement is to remain PRIVATE AND CONFIDENTIAL.
…
On one occasion when Russell returned from extended leave and I was in the role of Step-up Supervisor, I was conducting a joint prestart with Ron Van Wyk, Earthworks Supervisor. During the meeting Russell was continuously looking at his mobile phone. I asked if he could leave the phone alone during prestart which he did not, saying he was right. A short time later Ron Van Wyk then asked him to leave it alone, which he did. Two days after this Russell informed me that he had reported me to Ethics point for singling him out and degrading his work ethic in front of his peers.
…
Tony Deluca, when in the role of Step-up Supervisor, has contacted me by phone while I was on leave to say that Russell Robertson has told him that I said to the crew that Tony cannot do his job properly and that they should send emails to the superintendent to say the same. This is a complete fabrication. When Craig Silva said removing a pump while there was still water in the pit was a waste of time and it needs to be recorded he was against pulling this pump out, I suggested he put that in an email to his supervisor, Tony Deluca, to have in on the record. Tony later informed me that Rob Oram, who was in the crib hut at the time, confirmed that Russell’s version of this conversation was untrue.
…
I have suffered enormously by Russell Robertson’s bullying which was happening frequently while at work, the above are just a sample. I have suffered great mental stress which was impacting and placing great strain on my work and personal relationships. I have suffered financially because I felt the only option available to me was to take extended leave to distance myself from the situation and reassess my working career.”[15]

After considering the “complaints”, Mr Gibbons formed the view that an investigation was required. Mr Gibbons said that he formed this view based on the severity of the matters raised and the impact on Mr Duncan, including that Mr Duncan had taken and was, at the time Mr Gibbons made his statement in these proceedings, on extended leave. Mr Gibbons requested to meet with Mr Robertson on 18 November 2020. Mr McNamara took notes of the meeting which were appended to Mr Gibbons’ statement and relevantly indicate that Mr Robertson was told that he was being stood aside while allegations of disrespectful behaviour on the part of Mr Robertson were investigated. The notes also indicate that at this initial meeting, Mr Robertson asked for a list of allegations and dates and was told that these would be provided in due course. The duration of the meeting was 15 minutes.

Mr Gibbons then carried out what he described as an “investigative process” conducted in accordance with a plan, developed in conjunction with BHP’s Human Resource Management staff who provided template interview speaking notes for Mr Gibbons to use during the interviews. Subsequently, Mr Gibbons interviewed “all the relevant witnesses”, being Mr Duncan, Mr Kennedy, Mr Deluca, Mr Roberts and Mr Van Wyk. Mr Gibbons did not tender any notes of these interviews. Mr Gibbons did tender speaking notes which had been prepared by the Company’s Human Resources Management team to assist him to conduct the interviews. The speaking notes in relation to Mr Duncan’s interview contain questions about when Mr Duncan returned to the pump crew from Special Projects and whether Mr Duncan can recall dates, even if approximate, and whether other coal mine workers witnessed the events he has reported. It is suggested in the covering email from Ms Heycott attaching the speaking notes, that Mr Duncan’s interview should be handled “slightly differently” and that Mr Gibbon take a copy of Mr Duncan’s email of 18 November 2020 into the meeting with Mr Duncan so that Mr Duncan could read through it and notify any dates or witnesses.

The questions set out in the Speaking Notes in relation to the interview with Mr Kennedy asked for further details about other incidents or events and whether anyone was in the crib hut on 7 November 2020. In relation to Mr Van Wyk’s interview, the Speaking Notes relevantly set out the following questions:

“There was an incident which took place in a joint pre-start which you were running with Terry Duncan.
a.    Do you recall this meeting?
b.   During the meeting it is alleged that Terry asked Russell to stop using his phone to which he ignored the instruction. It is alleged that you then directed him to do the same and he complied.
c.    What can you tell me about this matter?
d.   [if he confirms what happened] why do you think this happened? “

During the period between 14 December 2020 and 11 January 2021, Mr Gibbons commenced leave that had already been planned. Mr Gibbons discussed handing over the investigation to his stand in, with his manager Mr Gee. However, Mr Gee and Mr Gibbons decided that Mr Gibbons was best placed to conduct the investigation as it was complex, due to the number of allegations and the time frames over which the allegations had allegedly happened. Also, Mr Gibbons’ stand in did not have a similar capacity to investigate the matter and since the investigation was ongoing, handing over the investigation would have meant interviewing the witnesses and potentially delaying the investigation further.

Before commencing his leave, Mr Gibbons spoke to Mr Robertson and explained that he was going on leave and that Mr Robinson would remain stood aside for this period. Mr Gibbons next spoke to Mr Robertson on 15 January 2021 to notify him that he was back from leave and that the next step in the investigation was to meet with Mr Robertson. Mr Gibbons called Mr Robertson on 19 January 2021 to ask whether he was available to meet on 21 January 2021. The questions in relation to Mr Robertson’s interview included:

“1. I have received information which alleged that you have displayed disrespectful behaviour towards fellow [coal mine workers]. The purpose of this meeting is to go through the allegations and allow you to respond with any additional information that you think may be relevant.
3. Approximately 12 months ago, Terry Duncan and Ron Van Wyk were conducting a joint pre-start meeting. It is alleged that during this meeting. Terry gave you a direction to stop using your phone to which you responded with ‘I’m right’. Ron then gave you the same direction and you complied.
- What can you tell me about this event?
- Do you believe that your conduct on this occasion was in any way disrespectful?
- Are you aware that this conduct would be perceived as failing to follow a direction?
6. Do you recall while speaking to Tony Deluca, it is alleged that you stated words to the effect of ‘Terry Duncan told the crew that you can’t do your job properly and told us to send emails to the Superintendent to say the same’.
- Do you recall this conversation with Tony?
- What do you have to say in response to this?
…
10. On 10 November 2020, while speaking to Cameron Roberts, it is alleged that you stated words to the effect of ‘you’re a weak cunt, you went and did what Tony asked you to do’.
- What can you tell me about this?”

Mr Gibbons’ notes of the meeting state:

“Russell struggled to recall and would not respond without further information, Russell requests that he has the allegations in writing with specific dates, Russell also requests that he would need the allegations in writing to go away and try to remember by referring to a roster etc, Robert Gibbons reminds him and Les that, that is the role of the support person to take notes and refer later, Robert offered to work through the allegations as slow as necessary, Les states his note taking skills are not the best and would require the allegations in writing.”

Mr Gibbons provided the allegations to Mr Robertson in writing as requested and Mr Robertson responded on 29 January 2022. The written allegations and the response are summarised above. Mr Gibbons concluded that allegation 1 was not substantiated because there were no witnesses and Mr Robertson denied the allegation. In relation to allegation 2, Mr Gibbons was unable to provide further and better particulars regarding the date and time. However, Mr Gibbons considered that Mr Van Wyk, who he felt to be credible, had a specific recollection of what occurred (while not remembering the date) and corroborated the events as alleged. Accordingly, Mr Gibbons considered that this allegation was substantiated. Allegations 3 to 7 were considered not to be substantiated on the basis that there were no other witnesses and Mr Gibbons was unable to provide specifics. In relation to allegation 8, Mr Gibbons considered that it was substantiated on the basis that Mr Robertson conceded that he used the words “weak cunt”. Mr Gibbons said that BHP considers that the use of such language is completely inappropriate and this is not aligned with the Company’s Code of Conduct in relation to Workplace Equality and Inclusion and Respect. The BHP Code of Conduct relevantly states:
Workplace Equality and Inclusion
·Always demonstrate fairness, trust and respect in all your working relationships;
·Never behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others.
Mr Robertson had completed annual training on BHP’s Code of Conduct over the past four years on 28 February, 2021, 23 May 2020, 5 June 2019 and 15/16 May 2018. Mr Gibbons tendered Mr Robertson’s training record evidencing that he had “acquired” a qualification in “Our Code of Conduct” on those dates and that in some instances this was by way of a Substitute/Collateral credit from classroom training. Mr Gibbons said that BHP promotes an inclusive and diverse workplace and in Mr Gibbons’ roughly ten years in leadership roles, the language used by Mr Robertson has never been accepted. The BHP Charter Values also state that “Respect” involves “Embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial”.

Mr Gibbons considered Mr Robertson’s response to allegation 8 to the effect that he had said “weak cunt” to Mr Roberts in the context of discussing a safety issue and found that this was not the correct way to address a safety concern. Instead, Mr Robertson should have reported the incident to any one of a number of appropriate persons. Mr Gibbons also observed that in his notification of dispute dated 2 March 2021, Mr Robertson stated that he went about raising this issue in an unsatisfactory way. Mr Gibbons met with Ms Heycott from BHP’s Human Resource Management team and consulted the BMA Guideline to Fair Play Policy involving the application of the Just Culture Decision Tree Form, which Mr Gibbons filled out on 15 February 2021.

Mr Gibbons tendered the BMA Guideline to Fair Play Policy which relevantly provides that the objective of a just culture is to: provide an atmosphere of trust in which people are encouraged to raise essential safety-related information ie. hazard and near miss reports; define where the line must be drawn between acceptable and unacceptable behaviour; and is a prerequisite for openness than an informed culture requires. The Just Culture Decision Tree is intended to ensure a consistent and fair approach to provide a clear consequence for actions by guiding the appropriate discipline level when inappropriate behaviour occurs. Each situation is required to be determined on a case-by-case basis, taking into account the particular circumstances and severity of each case and the relevant disciplinary procedures. The Guideline states that the decision tree assists leaders to make sure that human error is addressed in a clear and consistent manner. It is also stated that the decision tree should only be used for one action at a time and in cases where there are multiple actions that led to the event, each action should be treated separately. An example of a safety breach involving multiple failures is given and the following statement is made:

“Each of these acts should be treated separately as each one may have different underlying causes and lead to a different outcome. The decision-maker will then need to exercise judgment to determine an appropriate course of action including mitigating circumstances and previous safety breaches.
Where an investigation finds that human error contributed to the incident, the just culture tree shall be applied to ensure the behaviour is corrected: separate from the investigations. Note we are talking about human error not the consequence e.g. failure to call up versus excavator hitting the dozer. Questions to be asked are:
·Was the error intentional or unintentional?
oWas a safe operating procedure violated? If yes, were the procedures adequate and available?
oCould an equally competent person make the same mistake? If no, were the deficiencies in training, experience or selection?
oIs there a history of unsafe acts in the individual or group?

·For unintentional violations, was the error due to a mistake, slip or lapse and has the individual made similar errors before?
·For intentional violations, was the error due to cultural violation (generally not complied with) or was it due to a deviant violation (an individual deliberately chose not to comply with a requirement).

Intentional violations are more unacceptable than unintentional violations, with deviant violations being totally unacceptable and not tolerable. Cultural violations are no longer cultural when a line is drawn in the sand and it is clear that the behaviour is no longer acceptable.”

In relation to investigations of non-safety related breaches, the Guideline states the prior to the commencement of the Just Culture process, an objective investigation should be conducted to gather the facts necessary to complete the Just Culture Decision Tree.

Mr Gibbons filled out the Just Culture Decision Tree Form on 15 January 2021, with the assistance of Ms Heycott and appended a copy of the completed form to his witness statement. The form completed by Mr Gibbons dealt with two events: designated as “Event 1 (Allegation 2) – approximately 12 months ago” and “Event 2 (Allegation 8) – 10 November 2021”. In the section of the Form dealing with the question “What are the details of the incident?” Mr Gibbons included the following information:

“Event 1 (Allegation 2) – Terry Duncan and Ron Van Wyk were conducting a joint pre-start meeting. I have found that during this meeting, Terry gave you a direction to stop using your phone to which you responded with words to the effect of “I’m right”. Ron then gave you the same direction and you complied. Your conduct on this occasion was disrespectful and I have found that on this occasion, you have also failed to follow a lawful and reasonable direction.
Event 2 (Allegation 8) – On 10 November 2021 while speaking to Cameron Roberts, it is alleged you stated words to the effect of ‘you’re a weak cunt, you went and did what Tony asked you to do’. Your conduct on this occasion was perceived as disrespectful. I have considered your response in relation to this event and note that you had concerns about a safety breach at the time and as such, you have then stated ‘You cannot break the SOP or breach a SWI. If you are a weak cunt about that someone is going to get seriously hurt.”
Based on your own response, I find this communication with Cameron was disrespectful. This is not the correct way to address a safety concern and the Company does not accept or encourage you to raise safety concerns in this manner.
I have found all other allegations (1, 3, 5, 6, 7) were unsubstantiated.”

Mr Gibbons highlighted boxes in the Just Culture Decision Tree indicating that the events fell under the intentional violation part of the Tree and is a Cultural intentional error made because Mr Robertson perceived that it is the expected action within his work group. In response to why the action falls within this area, Mr Gibbons referred to the Code of Conduct and stated that this is not the correct way to address a safety concern and the Company does not accept or encourage employees to raise concerns in this manner – presumably in relation to allegation 8. Mr Gibbons also referred to Charter Values – Respect and stated that: “Your conduct on this occasion was disrespectful, you have also failed to follow a lawful and reasonable direction.” As previously stated, Mr Gibbons decided that the appropriate disciplinary outcome should be a Level 3 Final Warning.

Mr Gibbons said that in deciding this outcome the allegations (including the lack of specifics), Mr Robertson’s previous work history and the Level 3 Final Warning issued to Mr Robertson on 20 October 2020, were considered. Mr Gibbons noted that the BMA Guideline to Fair Play Policy notes that generally “the disciplinary procedure will work on a sequential basis e.g. first breach results in a Step 1, an additional breach within 12 months a Step 2 etc.” It was decided that a further Level 3 Final Warning was appropriate in the circumstances rather than Leve 4 (Termination) to give Mr Robertson a further opportunity to behave in accordance with Company policies in the future.

The Level 3 Final Warning issued to Mr Robertson on 20 October 2020 was tendered by Mr Gibbons and related to a photo being posted from the Facebook account of Mr Robertson taken during a shift at the Goonyella Riverside Mine on 25 August 2020 and showing the Company’s operational equipment. The photo was found to have been posted in connection with a “political party campaign”. It was also found that Mr Robertson did not seek approval to share the photo externally and had provided an explanation that another person had posted it, without providing sufficient information as to how the photo ended up in that person’s possession and the extent to which Mr Robertson was aware that it would be used in connection with his political campaign. The conduct was said to have breached Company policies in relation to: Mobile Electronic Device Procedure; the Code of Conduct in relation to “Working with Governments”; and Charter Values, specifically Integrity. Matters considered in issuing the Final Written Warning on that occasion were Mr Robertson’s employment history and a letter given to him on 7 May 2019 outlining the Company’s expectations of him in relation to the use of Company resources in connection with a political campaign. I interpolate that it is a matter of public record that Mr Robertson stood as a candidate for the Australian Labor Party in last two Federal elections.

Mr Gibbons also gave evidence about the meetings relating to the dispute notified by Mr Robertson with respect to the warning given on 16 February 2021. Notes of the meeting on 26 March 2021 taken by Mr McNamara, tendered by Mr Gibbons indicate that Mr Robertson was told that he would not be provided with the additional detail that he had requested, and that all relevant/available information was provided through the investigation. In response to a question from Mr Robertson about whether he could have further information on the timeline and for confirmation that a relevant event occurred in August, Mr Gibbons is recorded as stating that the information he had given Mr Robertson was the level of detail he could provide.

Mr Robertson is recorded as raising an issue to the effect that there was a conversation between the Union and Ms Ryan [BHP Employee Relations] to the effect that Mr Duncan would not be doing supervisory duties from February and a dispute was run in relation to his role, with agreement being reached that Mr Duncan would return to his previous role from February 2020. Mr Gibbons is recorded as stating his understanding that the dispute was in relation to “CI” work being done by Mr Duncan, not supervision, and that Mr Duncan was appointed as a site supervisor and issued a direction to Mr Robertson in this capacity and that this is what the allegation was about. Mr Robertson is reported as asserting that without further details he is unhappy about the outcome and the pieces do not fit.

In relation to the allegation about Mr Robertson swearing at someone, it is recorded that Mr Robertson asked for details about who made the allegation and was told by Mr Gibbons that this was not relevant, and that Mr Robertson’s previous issue had been that the comment was taken out of context. In response to a question from Mr Robertson as to whether Mr Gibbons is stating that no-one uses this term at Goonyella, Mr Gibbons is recorded as stating that he understands Mr Robertson’s position and that intent does not result in him being able to have a green light to speak how he wants, regardless of “situation/passion”.

In relation to Mr Robertson’s statement Mr Gibbons said that he does not accept that the language described by Mr Robertson in relation to allegation 8 was minor and the kind of banter that happens between coal mine workers every day of the week or that it is a male dominated environment where workers often call each other names that may be found to be offensive in other industries. Mr Gibbons said that this type of language is not accepted and nor does it match the expectation that Mr Gibbons has set during prestart meetings. Mr Gibbons maintained that use of the word “cunt” is completely inappropriate and not aligned with Charter Values.

In relation to Mr Robertson’s assertion that he had overlooked the alleged safety breach, Mr Gibbons said that the focus of his investigation was on the allegations raised, which included the use of the language “weak cunt”. Mr Gibbons said that he did consider the alleged circumstances in which the language was used, including Mr Robertson’s claim that he had a potential safety concern. Mr Gibbons said that regardless of any safety concern, it is not acceptable to use this sort of language. Instead, Mr Robertson should have raised this issue with his supervisor or another appropriate person. In response to Mr Roberts’ statement, Mr Gibbons said that it is irrelevant whether Mr Roberts was offended by the words used by Mr Robertson or whether he found them acceptable. Language of this type is not appropriate, is inconsistent with Mr Gibbons’ expectations and does not align with Company policies.

Under cross-examination Mr Gibbons agreed that the actual allegations were not put to Mr Robertson until 21 January 2021 and that the only information that Mr Robertson had prior to that date was that he was informed on 18 November 2020 that he was being stood down because of a Code of Conduct breach regarding disrespectful behaviour. Mr Gibbons also agreed that at the time Mr Robertson was stood down he could not have had any understanding about the eight allegations which were later set out in a letter dated 21 January 2021. Mr Gibbons maintained that he had never used the word “cunt” on site, notwithstanding Mr Roberson’s evidence to the contrary.

In relation to Mr Robertson’s assertion that he sent Mr Gibbons an email in about May 2020, complaining about Mr Duncan, Mr Gibbons denied that he had received such an email. Mr Gibbons also said that he had sifted through all his emails including archived emails and the BHP database and could not find such an email. Mr Gibbons said that he had not received any other complaints from Mr Robertson about Mr Duncan. Mr Gibbons was shown an Order for production of documents issued by the Fair Work Commission on 28 January 2022 which required that BHP produce documents described in the Schedule to the Order as follows:
1.   Email complaint made by BHP Coal Pty Ltd employee, Russell Robertson, to Robert Gibbons, (then) Superintendent Mine Services at BMA Goonyella Riverside Mine in or about May 2020 which contains a written complaint about Terry Duncan (the Complaint).
2.   All email correspondence between Mr Robertson and Mr Gibbons regarding the Complaint.
3.   All file notes and records made by Mr Gibbons and/or any other employee, agent or officer of BHP Coal Pty Ltd regarding the Complaint.

Mr Gibbons said he had not seen the Order previously but had been instructed by BHP’s legal representative to search his email account for documents that answered the description in the Schedule to the Order. Mr Gibbons’ memory was that this occurred while he was preparing his statement for these proceedings. It was put to Mr Gibbons that his statement was made on 22 October 2021, prior to the Order being issued on 28 January 2022. Mr Gibbons did not conduct a second search but said that he was not aware that any documents were excluded from his search because they fell into a month before or after May 2020 on the basis that the Order required production of documents on or about May 2020. Mr Gibbons was also shown an email sent on 28 January 2022 in response to the Order, by Mr Andrew Wydmankski, Senior Associate of Allens, stating:

“We refer to the above matter and to the Orders made by Deputy President Asbury dated 28 January 2022 (the Orders).
The Respondent did not identify any documents that are responsive to the Orders. The Respondent searched its IT system and its complaint lodgement system, EthicsPoint. It also instructed Mr Gibbons to search his company email account.”

In response to a question about the accuracy of that statement in relation to the instruction to search his emails, Mr Gibbons said that it could have been better worded, but he understood the content and context. Mr Gibbons maintained that there was no written or verbal complaint by Mr Robertson about Mr Duncan and he was none the wiser about the fact that Mr Robertson had concerns about how he was being treated by Mr Duncan.

Mr Gibbons was also questioned about the timeline of events leading to the decision to stand Mr Robertson down. Mr Gibbons agreed that he received Mr Duncan’s email setting out his complaint against Mr Robertson at 8.14 am on 18 November. Mr Gibbons had already received complaints from Mr Deluca and Mr Kennedy on 9 November. Mr Gibbons said that at around 12.30 pm on 18 November 2022, he made the decision to meet with Mr Robertson about the complaints. Mr Gibbons agreed that he needed to arrange the meeting and organise a letter to hand to Mr Robertson at the meeting, notifying Mr Robertson that he was being stood down. Mr Gibbons also said that he had a conversation with Jess [Heycott] from HR before making the decision to meet with Mr Robertson and stand him down.

Mr Gibbons disagreed with the proposition that the Company was out to get Mr Robertson and that he had a preconceived bias against Mr Robertson. Mr Gibbons also disagreed that there was any difference between the way he treated Mr Robertsons and Mr Duncan on the basis that there was never an allegation made against Mr Duncan. In relation to the complaint by Mr Oram about Mr Duncan, Mr Gibbons had the following exchange with Mr Tiley for the CFMMEU:

“I’m putting it to you that there is a significant difference between the way in which you dealt with Mr Duncan’s complaint against Mr Robertson, which you received on the morning of 18 November 2020. You made a decision by lunchtime on 2020 you were going to stand him down, and by that afternoon you’d effected that, right? There’s that one scenario. And on the other hand, you have the complaint that Mr Oram was involved in. He told in his statement where (indistinct) behaviour was dealt with in a totally different way? ‑The decision to stand down Mr Robertson was not made off the cuff on the day. There were two complaints made on 9 November also. So in my mind, and process‑wise, the investigation was already well underway. Further allegations that came across my desk on the 18th led that to that final decision.”[16]

Mr Gibbons said that he did not recall Mr Oram making a complaint to him about Mr Duncan. Mr Gibbons also said that he did not remember telling Mr Duncan to apologise to Mr Oram or Mr Duncan being stood down following a complaint by Mr Oram. Notwithstanding stating that he did not remember these matters, Mr Gibbons said that it could possibly have happened. Mr Gibbons maintained that before he received the complaint from Mr Duncan about Mr Robertson, he did not have a discussion with Mr Duncan about the matter. In response to the proposition that Mr Duncan just sent the email of 18 November to him unsolicited, Mr Gibbons said there was a bit of conversation between Mr Duncan and his supervisor who at the time, was Mr Kinross. Mr Gibbons said that Mr Kinross still works for the Company.

Mr Gibbons agreed that coming into 19 November 2020, he had two complaints against Mr Robertson made on 9 November 2020 and received Mr Duncan’s complaint that morning. Mr Gibbons rejected the proposition that there had been a prior complaint by Mr Oram against Mr Duncan which had been swept under the carpet. Mr Gibbons agreed that he had cause to interact with Mr Robertson in Mr Robertson’s previous role as President of the Goonyella Riverside Lodge of the CFMMEU and that at times he would not see eye to eye with Mr Robertson. Mr Gibbons rejected the suggestion that he had an axe to grind with Mr Robertson or that he bore a grudge against him.

Mr Gibbons was also taken to the letter he provided to Mr Robertson dated 25 January 2021 which stated that:

“I reiterate that I am only investigating these allegations at this stage. No decision has been made as to what, if any, further actions will be taken in relation to this matter. If after considering your response I determine further action is required, I will contact you again to provide details of that future action.”

Mr Gibbons said that this paragraph meant that no decision had been made until the investigation had run its course and that the need to contact Mr Robertson may have arisen if further information was required. Mr Gibbons rejected the proposition that the letter stated that Mr Robertson would be given a chance to respond if further action was being contemplated and said that once an investigation is completed it is completed. Mr Gibbons subsequently agreed that he intended to convey that if the investigation established anything against Mr Robertson, he would come back to Mr Robertson and give him a chance to respond and that this is not what he did. In response to the proposition that this was contrary to what Mr Robertson was told, Mr Gibbons said that once a response to allegations is received and the investigation takes its course, it is not usual to go back to the respondent and ask them if they want to respond. Later, Mr Gibbons accepted that Mr Robertson stated in his written response to the allegations that he wished to be heard again in relation to the matter but maintained that he did not understand that this meant that Mr Robertson was asking for a chance to be heard again before a decision was made about the allegations. In response to a question as to what else Mr Robertson could have meant, Mr Gibbons said that the request was read at the time, but the investigation had run its course.

In relation to allegation 2, Mr Gibbons agreed that Mr Robertson asked for the date of the complaint, the dates the events were said to have occurred, the shift he was working on the relevant day, confirmation of whether the pre-start meeting had commenced prior to his shift commencing, and where the pre-start meeting was conducted. Mr Gibbons first contended that Mr Robertson knew where the pre-start meeting was conducted but then accepted that none of the correspondence confirmed any of the details that Mr Robertson requested. It was put to Mr Gibbons that the Company knew where the pre-start meeting was conducted and the date that the complaint was made by Mr Duncan and that it was made verbally to Mr Kinross and then in writing. Mr Gibbons maintained in response that this information could not have been easily provided to Mr Robertson because during the investigation, those dates were hard to recall.

In response to the proposition that Mr Robertson wanted to know the date that the complaint came in because it was relevant to the sincerity with which it was made, or that the complaint could have been raised after the fact, for another reason, Mr Gibbons said that he was focused on the allegation rather than the date the email setting out the complaint was sent to him. Mr Gibbons later conceded that he chose not to give Mr Robertson the date the emailed complaint was sent, because he was focused on the date of the allegation not the date of the email. Mr Gibbons agreed that he did not have the details of the complaint before he received the email from Mr Duncan and was not aware of the fact that Mr Duncan had a discussion with Mr Kinross before sending the email. Mr Gibbon also agreed that being informed of the date the complaint was made may have provided Mr Robertson with relevant information about the period between the alleged conduct occurring and the complaint being made.
Mr Gibbons accepted that there were submissions that Mr Robertson ought to have been given a chance to make, between being informed of the allegations and the warning being issued, which he was not given a chance to make, but maintained that this is not the usual process followed by the Company. Mr Gibbons also accepted that there were features about the process with Mr Robertson which were not normal, such as the amount of time between the events occurring and the allegations being made but maintained that the Company went outside its usual process to support Mr Robertson to respond to the allegations by providing the allegations in writing, which is not normal process either.

It was put to Mr Gibbons in cross-examination that the version of allegation 2 that was substantiated, was not the allegation that was put to Mr Robertson. In this regard, the initial allegation made by Mr Duncan was that Mr Robertson ignored his direction to put away his phone and said “no I’m right” but complied when asked by Mr Van Wyk to put his phone away. In contrast the version that was substantiated was that Mr Robertson was disrespectful towards Mr Duncan during a pre-start meeting and failed to follow a lawful and reasonable direction when Mr Duncan asked him to stop using his mobile phone. It was also put to Mr Gibbons that Mr Van Wyk made no mention of Mr Robertson saying “no I’m right”. Mr Gibbons maintained that the two versions of the allegation were the same and that Mr Robertson failed to follow a lawful and reasonable direction. Mr Gibbons also said that he was not aware that Mr Van Wyk had given a witness statement in these proceedings but when shown that witness statement agreed that the version of allegation 2 was the same as Mr Van Wyk’s version in the investigation.

It was put to Mr Gibbons that the substantiated version of the incident was less serious than what was alleged, because the comment “no I’m right” indicated that Mr Robertson heard Mr Duncan, and this was not mentioned in Mr Van Wyk’s statement. In response, Mr Gibbon maintained that regardless, Mr Robertson was given a direction and did not comply with it.

Mr Van Wyk is employed by BMMA Coal Operations as Mine Services Supervisor at the Goonyella Riverside Mine and has been continuously employed in various roles at the Mine since 2005. Mr Van Wyk gave evidence that in approximately January 2020 he was conducting a joint pre-start meeting with Mr Duncan, for a crew which included Mr Robertson. Mr Van Wyk was the Earthworks Supervisor and Mr Duncan was the Pump Supervisor for the day. Mr Van Wyk does not remember the exact date of the meeting. He stated that while they were going through the pre-start procedure, Mr Duncan asked Mr Robertson to put his phone away. Mr Van Wyk noticed that Mr Robertson did not put his phone away and continued to use it after Mr Duncan’s request.

Mr Van Wyk stated that he then asked Mr Robertson to put his phone away, and Mr Robertson did so and the pre-start proceeded as usual. Mr Van Wyk said that he remembers this incident because Mr Robertson showed blatant disrespect to Mr Duncan by completely disregarding his instructions. Mr Van Wyk stated that he was interviewed by Mr Gibbons on 15 January 2021 about the events of the joint pre-start meeting in January 2020, and this is his only involvement in this matter.

In relation to allegation 8, Mr Gibbons agreed that Mr Deluca’ complaint set out Mr Robert’s statement that he did not have a problem with what Mr Robertson said to him but did not appreciate it. Mr Gibbons maintained that this was not correct and that Mr Roberts did have an issue with Mr Robertson’s conduct and that he stated this to Mr Gibbons in an interview during the investigation. Mr Gibbons conceded that he did not make notes of the meeting with Mr Roberts and said that this was because Mr Roberts was nervous about saying anything and did not want what he said to be on the record. Mr Gibbons agreed that he had the right to direct any employee to answer a question relating to the performance of work or a workplace incident and that whether Mr Roberts liked it or not, he could have been required to answer Mr Gibbons.

In response to the proposition that he took information from Mr Roberts, which he did not write down, and used it as part of his decision to give Mr Robertson a final warning, Mr Gibbons said that the information that came to him was from the statements of Mr Deluca and Mr Kennedy. Mr Gibbons also said that regardless of how Mr Roberts felt about the situation, Mr Robertson should not have conducted himself in that way.

Mr Robertson said that he made a complaint about Mr Duncan by email sent to Mr Gibbons in or around May 2020. A notice was issued to BHP to produce that email. Mr Gibbons’ evidence about steps taken to comply with the notice was unsatisfactory. In short, Mr Gibbons was not shown the notice and was simply instructed to search various repositories of emails. It is not clear that this request was even made at the time the notice to produce was issued. Mr Gibbons evidence was that he conducted the search well after the notice to produce was issued, when he was preparing his statement for these proceedings. Further, there was no evidence of any steps that BHP took to identify whether it had documents that fitted the description in the notice to produce. It would be surprising that BHP does not have specialist information technology staff who could search for the email and provide details of steps taken. Even if the email was not able to be located, there is no reason why BHP could not have investigated Mr Robertson’s complaint about Mr Duncan by asking Mr Robertson to provide details. Mr Gibbons’ evidence in response to issues about the delays between the incidents described in the complaints against Mr Robertson and the complaints being made, was that all complaints must be investigated, regardless of whether there is such a delay. Mr Gibbons did not explain why the same view was not taken in relation to complaints made by Mr Robertson.

Mr Robertson also provided information about a complaint made against Mr Duncan by Mr Oram. Mr Oram gave evidence to the Commission confirming that he did make a complaint about Mr Duncan to Mr Gibbon. Mr Gibbon did not provide any evidence in response to Mr Oram’s evidence. Mr Oram was not cross-examined in relation to the aspect of his evidence that dealt with making the complaint to Mr Gibbons.

Mr Oram also gave uncontested evidence that he was interviewed by Mr Gibbons about an allegation that Mr Robertson had told a crew of workers to send emails to Mr Gibbons complaining about Mr Deluca. Mr Oram told Mr Gibbons that it was Mr Deluca who made that request to the crew and the request was to send emails complaining about Mr Duncan. Mr Oram also stated that Mr Robertson told Mr Deluca that it would cause drama and that members of the crew should not send such emails. This matter is raised in Mr Duncan’s email of 18 November 2020 as one of several concerns Mr Duncan had about Mr Robertson. It also appears to be the subject of allegation 5, which was ultimately not substantiated. This matter should have given rise to concerns on the part of Mr Gibbons about the veracity of various complaints that had been made against Mr Robertson.

There is no evidence that BHP undertook any investigation into the matters raised by Mr Robertson during the investigation, in relation to the conduct Mr Duncan. The evidence is confined to statements from Mr Gibbons to the effect that he considered those matters. Mr Gibbons investigated whether Mr Robertson made negative statements about Mr Deluca, by questioning Mr Oram about this matter. There is no evidence that Mr Gibbons investigated the allegation made in response by Mr Oram, to the effect that it was Mr Deluca making negative comments about Mr Duncan and that Mr Robertson told the crew not to complain to Mr Gibbons about Mr Duncan. The only information that Mr Gibbons appears to have acted on in relation to this matter is what Mr Duncan told him. Mr Deluca did not raise this allegation in his relatively lengthy written complaint. If the matter was worthy of Mr Deluca contacting Mr Duncan, while Mr Duncan was on leave, to inform Mr Duncan of the matter, I can only wonder at why Mr Deluca did not include that allegation in his written complaint about Mr Robertson. It is also not clear why Mr Duncan saw fit to include an allegation in his complaint about Mr Robertson, that involved Mr Deluca and had no apparent connection to Mr Duncan.

Further, there are inconsistencies in Mr Gibbons’ evidence and in the documents appended to his statement. One such inconsistency was raised by Mr Tiley for the MEU in his closing oral submissions. Mr Tiley pointed to the fact that Mr Gibbons states that the complaints made by Mr Deluca and Mr Kennedy were raised on 9 November 2020. Mr Deluca’s complaint refers to a conversation he had on 8 November 2020 with a team member and another conversation with Mr Kennedy also on that date. Mr Deluca’s statement also refers a discussion he had with “Justin K” [Mr Justin Kinross] about his discussions with crew members on 8 December. Mr Deluca’s complaint further refers to a discussion he had with Mr Roberts about the interaction between Mr Roberts and Mr Robertson on 10 November 2020. The text of Mr Deluca’s written complaint does not indicate that it is contemporaneous with the events it describes. Clearly, Mr Deluca’s written complaint referring to the discussion between Mr Deluca and Mr Roberts on 10 November 2020, could not have been made on 9 November 2020.

Mr Tiley said in his closing submissions on 15 February 2022, that he did not notice this discrepancy until after Mr Gibbons had given his evidence on 14 February 2022. Mr Tiley cannot be criticised for this. I also note that the explanation offered by Ms Brenton for BHP, to the effect that Mr Gibbons does not state that the two complaints on 9 November were made in writing, and that the complaints were made orally to Mr Kinross, is not satisfactory. Mr Kinross was not called to give evidence. If I accept that Mr Kennedy’s complaint was made on 9 November 2020, it is more probable than not that Mr Gibbons had one complaint – from Mr Kennedy – on 9 November and did not have a complaint from Mr Deluca at that point. None of the matters complained about by Mr Kennedy were substantiated and they do not involve Mr Duncan or corroborate his complaint.

There is also no satisfactory explanation about how the complaints made by Mr Duncan, Mr Deluca and Mr Kennedy were initiated. In response to the proposition that Mr Duncan sent an unsolicited complaint to him, Mr Gibbons said that he understood there was an initial discussion between Mr Kinross and Mr Duncan about the matters raised in Mr Duncan’s complaint. As previously noted, Mr Kinross was not called to give evidence in these proceedings and there is no reference to Mr Kinross in Mr Duncan’s complaint. Mr Gibbons interviewed Mr Duncan but did not take notes of the interview. Finally, there is no explanation as to why Mr Duncan waited until November 2020 to raise a complaint about an incident that occurred in January 2020. Neither is there any explanation as to why Mr Deluca waited for a similar period or why Mr Kennedy came forward with his complaint at or around the time that Mr De Luca and Mr Duncan made their complaints.

After considering all of these matters, I am not satisfied that it was reasonable for Mr Gibbons to conclude that allegation 2 was substantiated.

Allegation 8

I unreservedly accept that Coal mines are diverse workplaces where people are entitled to work in an environment free of offensive, insulting, intimidating, malicious or humiliating behaviour, regardless of attributes such as gender. BHP’s endeavours to promote inclusiveness and an environment free of such behaviour are to be supported and applauded and the Commission should not lightly interfere in disciplinary action directed at these objectives.

At the risk of stating the obvious, the term “cunt” is vulgar slang used to describe a woman’s genitals. The use of the term “cunt” in any workplace is objectively offensive and is inexcusable, regardless of context or the nature of the workplace. If there was ever a time where the use of such a term could be justified on the basis that a workplace is male dominated, that justification should have long ceased to be invoked. The fact that the term is used indirectly in a discussion with a co-worker to describe a situation, is entirely inappropriate. To direct that term at a co-worker, is offensive to the co-worker and to anyone who hears the exchange. It also indicates that the person using the term has little respect for women by virtue of using a vulgar reference to women’s genitals to express anger about a situation or to insult and offend other persons.

I do not for a moment condone Mr Robertson’s conduct. Mr Robertson’s insistence in his evidence that it is acceptable to direct this term to any coal mine worker is concerning. However, Mr Robertson departed from his evidence and accepted that it is not appropriate to use the term “cunt” at work. I also observed Mr Robertson giving his evidence, and I accept the submission that the process to which he has been subjected has had a scarifying effect on him and that he will be unlikely to use such language at work again. While it is not in dispute that Mr Robertson used this term in his discussion with Mr Roberts, for the reasons which follow, I do not accept that it was reasonable for Mr Robertson to be given a Level 3 Final Warning, in all the circumstances of this case.

The comment was not directed at Mr Roberts in the sense that Mr Robertson did not call him a “cunt”. Instead, Mr Robertson said that if Mr Roberts was a “weak cunt” and did not follow an SOP or SWI, someone would be hurt. Mr Roberts told Mr Deluca immediately after the discussion with Mr Robertson, that he did not have a problem with the comment and that he understood Mr Robertson’s motivation for making the comment was a concern for safety. Mr Roberts also said this to Mr Gibbons. Further, Mr Roberts gave evidence in support of Mr Robertson at the hearing confirming his position. While this is not determinative of the appropriateness of the Level 3 Final Warning being given to Mr Robertson, it is relevant. There is no evidence that any other worker heard the comment or was offended by it.

Mr Roberts provided a witness statement in these proceedings on 24 September 2021 confirming his views about Mr Robertson’s conduct. Mr Gibbons whose statement was made after the statement of Mr Roberts, did not respond to Mr Roberts’ statement that he had not been offended or upset by the comment, or provide any evidence to contradict it. Instead, during cross-examination, Mr Gibbons asserted that Mr Roberts had been reluctant to be interviewed during the investigation into Mr Robertson’s conduct and had expressed fear of retaliation and that he was upset by the Mr Robertson’s comment. I do not accept that weight should be placed on evidence of this kind given in cross-examination. Such evidence should have been included in Mr Gibbons’ witness statement and put to Mr Roberts in cross-examination. Accordingly, I place little weight on this evidence. I also do not accept the submission of Ms Brenton on behalf of BHP that I should have regard to evidence in the proceedings of “fear of intimidation and reprisal”. Quite simply there was no such evidence. The rule in Browne v Dunn is directed at ensuring fairness and it would be entirely unfair to Mr Robertson to accept such evidence from Mr Gibbons while under cross-examination, or assertions of fact from BHP’s legal representative, which are not supported by any evidence called by BHP.

The context in which Mr Robertson made the comment to Mr Roberts is also relevant. Significantly, Mr Robertson explained that the comment was a reaction to being informed by Mr Roberts about a safety breach on the part of Mr Roberts, and those who instructed Mr Roberts to move a pump, using a vehicle that was not rated for this purpose. This was an apparently serious matter raised by Mr Robertson and there is no evidence that it was investigated. If the movement of the pump was not considered to be a safety issue, there was no explanation of why this was the case, provided in evidence for BHP. There is no apparent reason why this matter could not have been investigated. Mr Gibbons knew that the pump was moved on or around 10 November 2020 and that Mr Deluca and Mr Roberts were involved. The lack of evidence that there was an investigation, is inconsistent with Mr Gibbons’ evidence that complaints are investigated regardless of the circumstances in which they are made, and that the safety of employees is paramount. Rather than giving evidence of investigating whether there had been a safety breach associated with moving a pump on or around 10 November 2020, Mr Gibbons evidence was confined to assertions that context in which Mr Robertson used the term “cunt” was irrelevant.

There is also evidence of differential treatment being afforded to Mr Robertson, compared to other employees who engaged in the same or similar conduct. In this regard, Mr Oram’s evidence about an incident where Mr Duncan directed the same term to Mr Oram was not challenged. If Mr Gibbons had forgotten about the note shown to him by Mr Oram, he knew about the matter when Mr Oram made his statement in these proceedings, on 24 September 2021. Mr Gibbons did not respond to that evidence and there was no evidence that this complaint was investigated at that point.

In my view the incidents involving Mr Robertson on the one hand, and Mr Roberts and Mr Duncan and Mr Oram, on the other, are clearly matters comparing apples with apples. I do not accept the submission of BHP to the contrary. Mr Oram’s allegation was that Mr Duncan used the term “cunt” – exactly the term that Mr Robertson was disciplined for using. As was the case with the incident involving Mr Roberts and Mr Robertson, there were two parties directly involved. Mr Deluca was not a witness to the incident between Mr Roberts and Mr Robertson and was involved only because Mr Roberts told him about the incident. Mr Deluca’s evidence does not provide a basis for distinguishing the two incidents. Mr Robertson conceded that he had made the comment to Mr Roberts and apologised to Mr Roberts notwithstanding that he was not directed to do so. Mr Oram’s uncontested evidence is that Mr Duncan apologised to him – albeit Mr Duncan was said to have prefaced his apology with a statement that he had been told to apologise to Mr Oram.

It is arguable that Mr Oram’s incident was more worthy of investigation given his uncontested evidence that he put the allegation into writing (on his mobile phone) and sought Mr Gibbons’ views about whether to send it via email to Ethics Point, before being informed by Mr Gibbons that he would deal with the matter. There is no evidence it was investigated, or that Mr Duncan was disciplined in relation to it. Mr Roberts did not complain and an investigation was conducted regardless. Mr Oram (on his uncontested evidence) did complain and no investigation as conducted. Further, Mr Duncan was given an opportunity to apologise to Mr Oram. Mr Robertson was not given such an opportunity and was disciplined. This is a clear case of differential treatment.

I do not accept BHP’s submissions attempting to explain this differential treatment. The fact that any disciplinary outcome in relation to the matter involving Mr Duncan and Mr Oram may have been subject to privacy or confidentiality at the time, does not prevent BHP from providing evidence about the matter in these proceedings. This is not a basis for finding that there is a probability that there was such an investigation.

While I accept that BHP is entitled to make a stand about the use of the term “cunt” and other inappropriate language in the workplace, the way that the substantive matter was dealt with was unfair, and it was not reasonable for Mr Robertson to be given a Ltep 3 Final Warning in relation to it.

I am also of the view that the entire investigation process conducted against Mr Robertson was attended with procedural unfairness, to such an extent, that the Level 3 Final Warning was unreasonable. Some delay in investigating allegations is understandable. However, the period over which the investigation of the allegations against Mr Robertson dragged out, was not reasonable. It should have been immediately apparent that all but one of the allegations were aged to the extent that there was a need to deal with them expeditiously. Other than allegation 8, no precise dates were provided by the complainants and details were scant. All the allegations were made at the same time in a single communication from each complainant.

Mr Robertson was stood down in November 2020 for an amorphous reason, advised to him verbally at a meeting, that allegations of disrespectful behaviour on his part were being investigated. At the time, Mr Robertson was on a Step 3 Final Warning in relation to another matter and would reasonably have believed that he was in some danger of being dismissed as a result of the November 2020 allegations. I have no doubt that this caused Mr Robertson and his family enormous distress over the Christmas period and effectively ruined their Christmas. This was entirely unnecessary, and a reasonable employer would have appreciated this at the time.

I do not accept that Mr Robertson was granted a benefit or an indulgence, by being provided with the allegations in writing, rather than been informed of the allegations at a meeting and having to rely on his representative to write them down. In circumstances where there are 8 allegations, and the majority are amorphous to say the least, fairness required that the allegations be provided in writing. When the allegations were committed to writing, it should have been immediately apparent that most of them were untenable. The fact that six allegations were not substantiated says nothing about fairness. In my view, most of the allegations should not have been made at all. It is entirely understandable that Mr Robertson, and those who represented him throughout the dispute, saw the allegations as an attempt to get Mr Robertson, regardless of whether this was the case.

I do not accept that Mr Gibbons applied the Just Culture Process appropriately or that the Decision Tree was properly completed. The single decision tree completed by Mr Gibbons included consideration of both allegation 2 and allegation 8 on a combined basis, even though they were not related. This appears to be contrary to the instructions for completing the tree which are that each action should be treated separately as they may have different underlying causes and lead to a different outcome. Allegation 2 should not have been substantiated and in all the circumstances, allegation 8 did not involve intentional conduct. On any view, Mr Robertson reacted inappropriately to what he perceived as a serious safety breach by Mr Roberts. Further, while it is not determinative, it is relevant that the Level 3 Final Warning given to Mr Robertson on 20 October 2020, was in respect of a totally unrelated matter and did not involve interactions with work colleagues.

On balance, allegation 2 was not established to the necessary standard, if at all, and allegation 8 did not justify the response of a Level 3 Final Warning. Accordingly, it was not reasonable for Mr Robertson to be issued with a Level 3 Final Warning and this is an appropriate case for the Commission to intervene in BHP’s right to issue warnings to employees.

CONCLUSION

For these reasons, I answered the question for arbitration as follows:

Question:
Was it reasonable, in all of the circumstances, for the Respondent to issue a Level 3 Final Warning to Mr Robertson?
Answer:
No.

DEPUTY PRESIDENT

Appearances:

L Tiley of Hall Payne Lawyers for the applicant.
S Brenton of Allens for the respondent.

Hearing details:

2022
Mackay
February 14, 15.

[1] Exhibit A1 Statement of Les Bentlin.

[2] Exhibit A2 Statement of Bob Grieve.

[3] Exhibit A3 Statement of Russell Robertson; Exhibit A4 Reply Statement of Russell Robertson.

[4] Exhibit A5 Statement of Robert Oram.

[5] Exhibit A6 Statement of Cameron Roberts.

[6] Exhibit R1 Statement of Ron Van Wyk.

[7] Exhibit R2 Statement of Robert Gibbons; Exhibit R3 Reply Statement of Robert Gibbons.

[8] Exhibit R2 Annexure “RG – 3”.

[9] Transcript of proceedings 14 February 2022 PN97 – PN99.

[10] Ibid at 179 – 181.

[11] Ibid at PN162 – 166.

[12] Exhibit A5 Annexure “RO – 2”.

[13] Exhibit R2 Annexure “RG – 1”.

[14] Ibid Annexure “RG – 2”.

[15] Ibid Annexure “RG – 3”

[16] Transcript of proceedings 14 February 2022 PN496.

[17] (1984) 295 CAR 188.

[18] [2019] FWC 6691.

[19] Illawarra Coal Holdings v Matthew Gosek [2018] FWCFB 749.

[20] (1938) 60 CLR 336.

[21] Print S4213 (17 March 2000) at [24]

[22] Matthew Gosek v Illlawarra Coal Holdings Pty Ltd T/A South32 [2017] FWC 4574, [104].

[23] Ibid.

[24] (1959) 101 CLR 298.

[25] Exhibit R2 Annexures RG – 1 and RG – 2.

[26] Exhibit A7.

[27] Exhibit A8.

[28] (1894) 6 R 67.

[29] (1984) 295 CAR 188

[30] Exhibit R2 annexure “RG-7”.

[31] [2017] FWC 3179.

[32] [2015] FWCFB 5619.

[33] (1984) 295 CAR 188

[34] CFMMEU v HWE Mining Pty Ltd [2011] FWA 8288.

[35] [2021] FWCFB 6059.

[36] (2005) 145 IR 285 at [35].

[37] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68] per Hayne, Kiefel and Bell JJ.

[38] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines

(Printed by authority of the Commonwealth Government Printer

1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.