Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd
[2018] FWC 7617
•14 DECEMBER 2018
| [2018] FWC 7617 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
Mt Arthur Coal Pty Ltd
(C2018/2679)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 14 DECEMBER 2018 |
Application to deal with a dispute – final written warning issued – warning not unjust or unreasonable – application dismissed.
On 4 May 2018, Mr Brad Konieczny was issued with a final written warning by his employer, Mt Arthur Coal Pty Limited (Mt Arthur), alleging that he acted in an aggressive and intimidating manner towards two other Mt Arthur employees, Ms Kylie Power and Ms Sharon Bates, on 18 and 19 April 2018 respectively (Warning).
Mr Konieczny is a Production Operator covered by the Mt Arthur Coal Enterprise Agreement 2016 (Agreement). The Agreement also covers the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), of which Mr Konieczny is a member.
On 18 May 2018, the CFMMEU applied to the Fair Work Commission (Commission) for it to deal with a dispute with Mt Arthur in accordance with the dispute settlement clause in the Agreement and s 739 of the Fair Work Act 2009 (Cth) (Act). There is no dispute between the parties that the Commission has power to arbitrate the dispute in accordance with the Agreement and the Act.
In its application, the CFMMEU contended that there was no conduct on Mr Konieczny’s behalf that constituted justification for the issuing of the Warning and that Mt Arthur did not meet CFMMEU representatives in accordance with the disputes resolution process contained within the Agreement.
On 6 August 2018, the parties participated in conciliation of their dispute before the Commission. In conciliation, the dispute was resolved insofar as it related to Mt Arthur’s adherence to the dispute resolution process under the Agreement; however, the dispute relating to Mt Arthur’s decision to issue Mr Konieczny with the Warning was not resolved. As a result, the parties requested the dispute proceed to arbitration. The arbitration took place before the Commission in Newcastle on 27 September, 28 September and 9 November 2018.
Evidence was given in support of the CFMMEU’s case by Mr Konieczny, Mr Owen Carter, Production Operator, Mr Shane Smiles, Shotfirer, and Mr Wayne Radoll, Shotfirer. Mt Arthur called evidence from Ms Power, Ms Bates, Mr Damien Williams, Overburden Superintendent, and Mr Tim McEniry, Coal Mining Supervisor.
Legal principles
The CFMMEU submits that the Commission should make a determination that the Warning issued to Mr Konieczny by Mt Arthur should not have been issued and should be removed.
The issue of disciplinary action is not dealt with in any substantive way in the Enterprise Agreement. Mt Arthur has a Disciplinary Policy and Procedure, however, it is not incorporated into the Agreement. In those circumstances, the question of disciplinary action is a matter of managerial prerogative and the Commission as the arbitrator of a dispute such as the present will not interfere with the employer’s decision to impose disciplinary action such as a warning unless it was unjust or unreasonable.[1]
An employer’s decision to impose disciplinary action on an employee may be unjust if, for example, the employee did not engage in the misconduct alleged by the employer. In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. In this case, it is appropriate to apply the Briginshaw standard due to the seriousness of potential findings that Mr Konieczny engaged in the misconduct alleged by Mt Arthur.
An employer’s decision to impose disciplinary action would be unreasonable if it lacked an evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.[2]
18 April 2018 incident
The alleged interaction between Mr Konieczny and Ms Power on 18 April 2018 was described in the following way in the Warning:
“• On 18 April 2018 in Nigel Smith’s (Acting Services Superintendent) office, you acted in an intimidating manner when conversing with Kylie Power through raising your voice and speaking aggressively which caused Kylie to be distressed.”
The background to the interaction between Mr Konieczny and Ms Power on 18 April 2018 is that since early April 2018, Mr Konieczny had been assisting Mr Smiles to resolve an issue he had with Mt Arthur concerning the provision of polarised prescription safety glasses. Mr Smiles had made a claim for the provision of polarised prescription safety glasses in February 2018, which was subsequently rejected by Mt Arthur. Mr Smiles understood that Mt Arthur’s Personal Protective Clothing & Equipment policy (Policy) required him to wear polarised sunglasses and so he took issue with Mt Arthur’s decision to reject his claim. On approximately 4 April 2018, Mr Smiles asked Mr Konieczny to pursue the issue on his behalf. At that time, Mr Konieczny was the CFMMEU delegate on day shift when Mr Smiles and other Shotfirers were rostered to work. Mr Konieczny reviewed the Policy and formed the view that Mt Arthur was required to provide Shotfirers with polarised prescription safety glasses. As a result, Mr Konieczny decided to pursue the issue on behalf of Mr Smiles and other Shotfirers.
On 18 April 2018, Mr Konieczny was walking past Mr Smith’s office. Mr Konieczny saw that Mr Smith was in his office and so he popped his head into the office and said “hello”. Mr Konieczny and Mr Smith then proceeded to have a conversation in Mr Smith’s office. During the conversation, Mr Konieczny and Mr Smith began to discuss the polarised prescription safety glasses issue.
Ms Power, who is employed in the position of Contracts Administrator by Mt Arthur, walked past Mr Smith’s office when Mr Smith and Mr Konieczny were discussing the polarised prescription safety glasses issue. Mr Smith called out to Ms Power, asking her whether she knew anything about Shotfirers receiving polarised prescription safety glasses. Ms Power entered Ms Smith’s office and had a conversation with Mr Konieczny.
In his witness statement in chief, Mr Konieczny gave the following evidence about the conversation:[3]
“Ms Power entered the room but as I was only in there having just a jovial chat, I did not stay around after Ms Powers came in. The conversation was so innocuous I cannot even recall the detail of it. I think Ms Powers may have said the workers were not entitled to polarised prescription safety glasses and I said something like “Yes they are” and walked out of the room. It was not a meeting about the PPE. It was just idle chatter.”
In his witness statement in reply, Mr Konieczny stated that he did recall the conversation, denying that certain statements were made by him and stating that he recalled saying words to the effect of “People in that section who need them can get polarised sunglasses and they are entitled to prescription polarised sunglasses”.[4] In his witness statement in reply, Mr Konieczny reiterated that the conversation was innocuous as well as short, giving evidence that “it would have gone for no more than 30 seconds to one (1) minute”.[5]
In cross examination, Mr Konieczny conceded that at the time he prepared his witness statement in chief, he could recall some details of the conversation he had with Ms Power on 18 April 2018.[6] When asked why he stated “The conversation was so innocuous I cannot even recall the detail of it” when he did in fact recall some details of the conversation, Mr Konieczny replied: “I was stating I couldn’t recall the detail of it when I was first asked about it”[7]. Here, Mr Konieczny was referring to an interview conducted as part of the investigation on 27 April 2018 (27 April Interview), when Mr Konieczny was first asked about the 18 April 2018 incident.[8] Mr Konieczny accepted that what he meant to say in his witness statement in chief was “I couldn’t recall [details of the conversation] when I was asked about it previously but I can recall it now”.[9] Mr Konieczny then gave the following evidence, in addition to what was in his witness statement in chief and in reply, of his recollection of the conversation:
(a)Ms Power said “It’s not in the policy. They don’t work around the water” and he said “Well, they’re about to get them in the vending machine. Who changed the policy?”;[10]
(b)Ms Power advised him to see Mr Dwaine Jones and he said “Okay, I’ll see him”;[11] and
(a)He left Mr Smith’s office after the conversation with Ms Power finished.[12]
Mr Konieczny denies that he spoke to Ms Power in a frustrated way,[13] acted in an aggressive manner,[14] raised his voice,[15] or said the word “bullshit”.[16]
In her witness statement in chief, Ms Power recalls the conversation as follows:[17]
“a) I said words to the effect of “Okay what’s this about? As far as I know, you’re not entitled to them”.
b) Mr Konieczny was becoming visibly frustrated and said words to the effect of “this is bullshit, you know I am here on his behalf” and “who has decided this and who said you can’t do this?”
c) I replied with “look, it’s not my decision, we follow the policy for everyone, the policy is what the policy is”.
d) At this stage Mr Konieczny began raising his voice and said words to the effect of “this is crap, you know, and who changed the thing without consulting? We have always been entitled to them”.
e) I told Mr Konieczny “as far as I am aware, you have never been entitled to them, only permanent outdoor crew, pumpers on water”.
f) During the conversation, Mr Konieczny had a document with him in his hand that he was aggressively shaking around but I did not know what the contents of the document were. I could tell that Mr Konieczny was getting frustrated and worked up about the situation and rudely trying to make his point that he was right and that I was wrong.
g) The conversation ended by Mr Konieczny asking me “well who is making these changes? I want to speak to them. I’m sick of all this” to which I replied “it was Dwayne [sic] Jones”.
h) Mr Koniecnzy responded with “Well I’m going to speak to him” to which I said words to the effect of “oh whatever” and walked out of Mr Smith’s office and sat back at my desk approximately 20 metres away.
i) As I walked out of Mr Smith’s office, I was unsure as to why was Mr Konieczny getting aggressive towards me. The conversation with Mr Konieczny got me worked up and feeling stressed about something I could not do anything about.”
In cross-examination, Ms Power conceded that Mr Koniecnzy did not say “this is bullshit” as alleged in paragraph [16(b)] above and “this is crap” as alleged in paragraph [16(d)] above.[18] Ms Power gave evidence that Mr Koniecnzy only said “this is bullshit” once and that this occurred at the point in the conversation where she alleged that Mr Koniecnzy said “this is crap” in paragraph [16(d)] above.[19]
During cross-examination, Ms Power also conceded that during the conversation, Mr Smith did not at any point object to the behaviour of Mr Koniecnzy,[20] say anything like “You’re behaving inappropriately”[21] and that he did not intervene.[22]
Ms Power maintained during her oral evidence that Mr Koniecnzy raised his voice,[23] was aggressive and abrupt[24] and that she was distressed by the incident.[25]
It is not contested that Mr Smith remained in his office for the duration of the conversation between Mr Koniecnzy and Ms Power on 18 April 2018. Mr Smith did not give evidence in these proceedings; however, Mt Arthur adduced evidence of an email that he sent to Mr McEniry on 20 April 2018 as part of the investigation process (20 April Email). [26] The 20 April Email states the following:
“On Wednesday 18/4/18:
I was sitting in my office. Brad passed by looking for somebody else. He stopped and said hello. I get on fairly well with him as I know him from working with mine
services the past few years. I shared some banter in a light hearted manner.
I asked him what he was doing.
He said he was looking to discuss with someone about reimbursement for polarized glasses for someone from drill and blast.
I said I don’t know anyting [sic] about it.
As I said this Kylie walked passed and I then posed the question to her.
She stated that it wasn’t approved for a number of reasons decided by others.
Brad then complained about this decision abruptly. I didn’t see it as anything unusual knowing that Brad can get frustrated by MAC’s decisions from time to time in his role as a union delegate.
Kylie looked as though she was handling things with Brad and I didn’t really see it as my place to assist any further. So I returned to my office to continue working.”
Consideration of the evidence concerning the incident on 18 April 2018
I prefer the evidence of Ms Power to that of Mr Koniecnzy about the 18 April 2018 conversation. I found Ms Power to be a credible witness who made reasonable concessions such as in relation to Mr Smith’s lack of intervention in the conversation and Mr Koniecnzy’s use of the words “bullshit” and “crap”. Ms Power’s version is supported by the contemporaneous email statement she prepared on 19 April 2018 as part of the investigation process,[27] which conforms, in substance, to her evidence given in these proceedings. It is also supported by the 20 April Email, which, in my opinion, provides some limited weight in favour of a finding that Mr Koniecnzy was abrupt to Ms Power during their conversation on 18 April 2018. In my view, the inconsistency between Ms Power’s account of Mr Koniecnzy’s use of the words “bullshit” and “crap” in her statement in chief as opposed to her oral evidence does not have any significant impact on her credibility, nor does her inability to recall anything of the discussions she had with Mr McEniry on 19 April 2018, as part of the investigation process.
Contrary to the CFMMEU’s submission, I have determined that in the circumstances of this case I will not draw a Jones v Dunkel inference in connection with the failure of Mr Smith to give evidence.[28] I accept that it is reasonably and plausibly open to infer, and I do infer, from the 20 April Email that Mr Koniecnzy did not, in Mr Smith’s view, act towards Ms Power in a way that went beyond abrupt and frustrated. That is so particularly in circumstances where it is not disputed that, at the time of the incident, Mr Smith was responsible for monitoring and checking inappropriate behaviour in his role of Acting Services Superintendent.[29] I also accept that Mr Smith’s absence is unexplained. However, I do not consider that in circumstances where Mr Smith is no longer employed by Mt Arthur and he clearly had a positive relationship with Mr Koniecnzy whilst he was employed by Mt Arthur, Mr Smith can be regarded as in Mt Arthur’s “camp” at the time of the hearing or on any other basis as someone who Mt Arthur, rather than the CFMMEU, could have been expected call as a witness. Although it is possible that Mr Smith may have given Mt Arthur more co-operation than he gave the CFMMEU as a former managerial employee, Mt Arthur’s power over Mr Smith was no greater than that of the CFMMEU.[30] As a further reason why I have decided not to draw a Jones v Dunkel inference in connection with the failure of Mr Smith to give evidence, direct evidence was given by both Ms Power and Mr Koniecnzy in relation to their conversation on 18 April 2018, they were each cross examined on that evidence, and as a result I am able to assess the credibility and reliability of the evidence given by each of them and make a finding on the balance of probabilities as to what was said during their exchange on 18 April 2018.
The matters about which Mr Koniecnzy gave evidence in his reply statement and oral evidence concerning the 18 April 2018 incident were not included in his statement in chief or recorded answers given at the interview.[31] Mr Koniecnzy’s repeated references in his evidence to the innocuous nature of the conversation appeared to be an attempt to obfuscate what actually happened in respect of the conversation. In my view, his explanation as to why he did not put detail of the conversation in his witness statement in chief was not credible and his unwillingness to make reasonable concessions, such as whether a raised voice and getting frustrated at someone might be inappropriate, negatively affected his credibility.[32]
Although I accept that Ms Power’s concession that Mr Smith did not intervene, raise any issue or say anything during the conversation holds some weight in support of a finding that Mr Koniecnzy did not swear, raise his voice and/or speak aggressively during on the 18 April 2018 incident, on the balance of probabilities and having regard to the Briginshaw standard I find that during the conversation, Mr Koniecnzy:
(a)became visibly frustrated and said words to the effect of “you know I am here on his behalf” and “who has decided this and who said you can’t do this?”;
(b)began raising his voice and said words to the effect of “this is bullshit, you know, and who changed the thing without consulting? We have always been entitled to them”;
(c)had a document with him in his hand that he was aggressively shaking around; and
(d)asked Ms Power, “well who is making these changes? I want to speak to them. I’m sick of all this”.
I also accept Ms Power’s evidence that “Mr Konieczny got me worked up and feeling stressed about something I could not do anything about.”
Based on these findings, I am satisfied that Mr Koniecnzy acted in an intimidating manner when conversing with Ms Power on 18 April 2018 through raising his voice and speaking aggressively and that this caused Ms Power to be distressed. I accept that Mr Koniecnzy did not intend to act in an intimidating or aggressive manner towards Ms Power, and that he was genuinely frustrated at what he considered to be unreasonable conduct on the part of Mt Arthur towards employees he was representing in his capacity as a CFMMEU delegate. However, Mr Koniecnzy’s conduct, viewed objectively, was intimidating and aggressive and it caused distress to Ms Power.
19 April 2018 incident
The Warning also concerned the following allegations about an incident between Mr Konieczny and Ms Bates on 19 April 2018:
“• On 19 April 2018 at the desk of Sharon Bates, you acted in an intimidating manner when conversing with Sharon through raising your voice and speaking aggressively which caused her distress. Specifically, you stated “I will speak to you how I want to speak to you” in a forceful tone.
· During the interaction on 19 April 2018 you also threw the policy on Sharon's desk in an aggressive manner.”
On 19 April 2018, Mr Konieczny was standing in the hallway of the Administration Office outside of Mr Michael Kirkpatrick’s office. Mr Konieczny was waiting to speak to Mr Kirkpatrick about the polarised prescription safety glasses issue. Mr Kirkpatrick is a Superintendent employed by Mt Arthur. Whilst Mr Konieczny was waiting, a conversation occurred between Mr Kirkpatrick, Mr Carter and Ms Bates. Ms Bates is employed by Mt Arthur in the position of Overburden Administrator and is responsible for approving requests for the provision of safety glasses to Mt Arthur’s employees in the Overburden Team as part of their personal protective clothing and equipment.
In his statement in chief, Mr Konieczny gave evidence that while he was standing in the hallway of the Administration Office waiting to speak to Mr Kirkpatrick, he saw Mr Carter and commenced talking to him.[33] He alleges that while he was explaining to Mr Carter why he was in the Administration Office, Ms Bates joined in the conversation.[34] He gave evidence that a conversation occurred between himself and Ms Bates to the following effect:[35]
“Ms Bates said:-
“The Shotfirers are not entitled to them.”
I said to Ms Bates:-
“Well you need to read the Policy.”
I handed Ms Bates a copy of the Policy… I identified to Ms Bates the relevant parts of the Policy.
I said to Ms Bates:-
“You will need to read the Policy.”
Ms Bates looked through a few pages of the Policy and commenced reading out aloud the highlighted section in clause 6.3 ‘Eye Protection’.
Ms Bates read the following:-
“Polarised glasses should be worn when working outside around dams or reflective surfaces such as drill patterns.”
Ms Bates stopped reading aloud after the word “patterns” and immediately said to me words to the effect of:-
“I told you the Shotfirers are not entitled to them.”
I said to Ms Bates:-
“Continue reading the whole section.”
I was aware that the three words after Ms Bates stopped reading said “by the blast crew”. Ms Bates continued reading by [sic] not aloud. Ms Bates then looked up at me and shook her head.
I then said to Ms Bates words to the effect of:-
“Can you please continue on to read paragraph 6.10.”
…
Ms Bates read that section and said words to the effect of: “They are too dear. It’s not my department anyway”.
Ms Bates then threw the Policy on the table.
I said to Ms Bates words to the effect of:-
“BHP is a multibillion dollar company and does not put cost before safety and the wearing of polarised prescription safety glasses is a site requirement.”
…
Ms Bates said to me:-
“Don’t talk to me like that.”
I said to Ms Bates:-
“What do you mean? How am I talking to you?”
In cross examination, Mr Konieczny said that his witness statement in chief set out “all of what’s relevant with the conversation with Ms Bates”,[36] except that at the end he may have said “I have been chasing this for several weeks”.[37] When later asked whether he said “I’m sick of this” Mr Konieczny stated he said “I was over chasing up for weeks”,[38] then said “I may have said I’m sick of this. I’ve been chasing it for weeks”,[39] then said he could not recall saying “I’m sick of this”,[40] then said he did not believe he said it,[41] and then said “I may have said it – to be honest –yes, I don’t recall it but I could have said it”.[42]
Mr Konieczny gave conflicting evidence in cross examination as to his demeanour during his interaction with Ms Bates on 19 April 2018. For instance, Mr Konieczny:
(a)maintained that he was not frustrated at any point when talking to Ms Bates, and that he was only disappointed, but calm[43];
(b)subsequently admitted that “at that point I may have become a little bit frustrated at the end of the conversation – ‘I’m over having to chase this up’”;[44]
(c)however, then stated “I don’t believe I was frustrated, no. I just had a conversation with Ms Bates about the first time I spoke to her about it and I didn’t see any reason to be that frustrated with her or frustrated with her”;[45]
(d)maintained the words “I am over having to chase this up” suggested disappointment, not frustration;[46] and
(e)continued to deny he became frustrated at any point.[47]
Mr Konieczny denies that he raised his voice,[48] said words to the effect of, or anything similar to, “I’ll speak to you how I want to speak with you”[49], leant in towards Ms Bates (other than when identifying the relevant parts of the Policy),[50] forcefully pointed at the Policy,[51] and threw the Policy down in front of her.[52]
Mr Konieczny gave evidence that after his conversation finished with Ms Bates, he picked up the Policy from the desk and walked down the hallway approximately 20 metres and continued to wait for Mr Kirkpatrick.[53] Mr Konieczny alleges that he had been “standing there for a few minutes” when Mr Williams approached him.[54] Mr Konieczny recalls the conversation that took place between him and Mr Williams as follows:[55]
“Mr Williams asked me if I was an OCE and I informed him I was a CFMMEU Delegate and I was chasing up a safety issue, which I then explained to him. Mr Williams asked if I was ok and calm and I replied “Yes. Why? Do you find me offensive?” Mr Williams said “No but I heard raised voices”.”
During cross-examination, Mr Konieczny denied that Mr Williams asked if he was calm,[56] and said he was certain about that,[57] however, then subsequently admitted that Mr Williams did say this.[58] Mr Konieczny also denied that Mr Kirkpatrick asked whether he was ok,[59] before subsequently admitting he did.[60]
Mr Konieczny gave evidence that later on 19 April 2018, after the conversation involving him, Ms Bates and Mr Carter had occurred, he walked past Ms Bates in the Administration Office and had a further conversation with her. He recalls this later conversation with Ms Bates as follows:[61]
“Later in the day, after coming from the lube bay, I walked past Ms Bates in the Office. I said a general “Hello” to her and further said “At no stage was I having a shot over the PPE issue”. Ms Bates replied “Just be careful what you say and who overhears it”. I said nothing and walked away.”
In cross examination, Mr Konieczny denied that the reason he went back later in the day and said “I wasn’t having a shot at you” was because he realised he had offended Ms Bates, and explained his reasons for returning to speak Ms Bates as follows:[62]
“I was walking down the hallway and I thought the conversation we had earlier was that she said to me – “Don’t speak to me like that”. I was just reassuring her I wasn’t having a shot again and that’s the way it was brought up.”
Mr Konieczny maintained that he did not apologise to Ms Bates,[63] and that he did not think he had offended her.[64]
In his witness statement in chief, Mr Carter recounted the 19 April 2018 incident as follows:[65]
“I was in the Offices speaking with Ms Bates and I observed the Applicant in the Offices. I said to the Applicant words to the effect of “Whats up?” The Applicant then explained to me he was there to see Mr Kirkpatrick. The Applicant had a safety issue over the Respondent not supplying the appropriate Personal Protective Equipment (PPE) to the employees. The Applicant had with him a copy of a document, which was a site PPE policy. I spoke to the Applicant about the policy. I recall saying words to the effect of “You might be better off waiting until tomorrow when Ross [Carlson] or Dwaine [Jones] is back”... I recall the Applicant said to me words to the effect of “I have been told that Kirkpatrick is handling it”.
I cannot recall at what part of the conversation, however Ms Bates interjected and said something like “Is this about the polarised sunglasses?” The Applicant responded to the effect of “Yes, it’s actually in the procedure. I don’t know what the problem is”.
The Applicant gave Ms Bates the policy and Ms Bates read from the policy. I recall Ms Bates said something like “See they are not entitled to it”. The Applicant and I both said “No, it’s in the policy” and I think we both pointed out to Ms Bates the bit of the policy that said it. Ms Bates said words to the effect of “It’s too expensive and why should they get preference over anyone else?” I recall in response to that comment, the Applicant responded to the effect of “It’s in the policy. That is what they’re entitled to”.”
Mr Carter also recalled Ms Bates say words to the effect of “You do not have to speak like that” and that Mr Konieczny responded by saying “I’m sorry but at some point this is going to have to be sorted”.[66] He also gave evidence that Mr Konieczny said words to the effect of “I am sick of this. I have been chasing it for a couple of days”.[67]
In cross-examination, Mr Carter maintained that he recalled Mr Konieczny saying the words “I’ve been chasing it for a couple of days” and that his memory was “very excellent on that point”,[68] but then said “I can’t recall it”,[69] before ultimately saying “If it’s in my statement, it’s correct”.[70] He gave further evidence that Ms Bates said words to the effect of “I don’t appreciate this… [I’m] just doing… [my] job” and that Mr Konieczny responded with words to the effect of “I’m sorry, that’s just how I am”[71] and conceded that Mr Konieczny was frustrated[72] and that Mr Konieczny raised his voice when he said “No, they are entitled to it”.[73]
Mr Carter denied that Mr Konieczny said words to the effect of “I will speak to you how I want to speak to you” in a forceful manner, [74] and that he swore.[75]
Ms Bates alleges that during the morning of 19 April 2018, she was sitting at her cubicle in the administration office and Mr Carter was sitting in the cubicle next to her.[76] Ms Bates alleges that she and Mr Carter were discussing the polarised prescription safety glasses issue when Mr Konieczny joined their conversation.[77] Ms Bates gave evidence that she told Mr Konieczny that employees were not entitled to polarised prescription safety glasses under the Policy, that Mt Arthur was spending nearly $1,000 on prescription safety glasses for Mr Smiles, and that Mr Smiles was able to pay the difference of approximately $40 if he wanted polarised lenses.[78] Ms Bates alleges that she and Mr Konieczny then had a conversation as follows:[79]
“a) Mr Konieczny was standing in front of me, and I was sitting at my desk.
b) He told me that I was incorrect and I said words to the effect of “We’re following the policy”.
c) Mr Konieczny said words to the effect of “Well that policy is out of date and that’s incorrect”. I said something like “Well not that I know of”.
d) Mr Konieczny had a copy of the PPE Policy in his hands which he gave to me. I cannot now recall exactly how he gave it to me. He may have thrown it across my desk, or shoved it towards me and I took it from him, but I cannot be sure.
e) He said words to the effect of “Here, this is the policy here” and pointed at part of the policy.
f) I started reading at the top of the page and said words to the effect of “Mate, I can’t see where it says polarised”.
g) Mr Konieczny got cranky, came closer to me and lent over and started pointing forcefully at a section of the PPE Policy and said something like “Well down further, keep reading” By forcefully, I mean he was “jabbing” at the page aggressively, making it shake.”
h) There was a highlighted section further down the page which I read, and I saw it said something about polarised glasses being provided for people that work within reflective areas. The PPE Policy which Mr Koniezcny showed me was not version 2.2 of the PPE Policy, and specifically referred to polarised lenses, which version 2.2 of the PPE Policy did not. I said something like “Mate, I have never ever seen this policy before”.
i) Mr Konieczny was beginning to get very agitated (although had been cranky since the beginning of our conversation), began raising his voice and had an angry look on his face. He said words to the effect of “Well, that’s not the point, they’re allowed to have it” in a raised voice. I said something like “if they’re allowed to have it, we will look at it, but I have never seen this before” and “It’s not my job to approve it, all I am is a gatekeeper”.
j) I had begun to feel intimidated and bullied due to the volume and tone of Mr Konieczny’s voice, and the way he was poking the PPE Policy, so I stood up. Mr Konieczny said something like “This is how it works” and continued to hit the PPE Policy with his finger to show me where to read, making it shake.
k) I said words to the effect of “Mate, don’t speak to me that way please”. Mr
Konieczny responded with words to the effect of “I’ll speak however I want, I’m sick of this” in an aggressive and loud tone.l) Mr Konieczny then said words to the effect of “I’m sick of this shit. BHP is a multi-million dollar company. Safety should be their first priority”. Mr Konieczny still had a raised voice and aggressive tone. I said something like “Mate, I know nothing about this, just settle down” and Mr Konieczny said words to the effect of “I’m sick of this. I’ve been chasing this stuff for two days. This is never ending”. I said something like “You’re cranky and you’re yelling, leave me alone, go and see the Superintendent, I’m not in control of this, it’s not my decision to make”.
m) Mr Konieczny turned around and walked away.”
In cross-examination, Ms Bates gave the following evidence about how Mr Konieczny passed her the Policy:[80]
“I still can’t recall how he gave it to me. I know it was passed to me but I don’t know whether it was flung at me, passed to me, shoved at me. I don’t know, sorry.”
During her oral evidence, Ms Bates maintained her position that:
(a)Mr Konieczny was jabbing at the page or forcefully pointing to the section in the Policy;[81]
(b)Mr Konieczny’s tone was angry and loud;[82]
(c)Mr Konieczny said he could speak to her however he wants after she asked him to stop speaking to him like that;[83]
(d)Mr Konieczny said the word “shit” to her;[84]
(e)Mr Konieczny was yelling at her;[85] and
(f)she felt intimidated by Mr Konieczny.[86]
Ms Bates gave evidence that at about 3:00pm on 19 April 2018, Mr Konieczny came over to her desk and said words to the effect of “I’m sorry for how I spoke to you earlier, I wasn’t having a go at you, I was frustrated and cranky with the issue” to which she responded, “you need to watch the way you speak to people”.[87] Ms Bates gave evidence that Mr Konieczny then responded by saying words to the effect of “I’m not worried about anyone here.”[88]
It is not disputed that Mr Williams was sitting in his office with his door open when the conversation between Ms Bates and Mr Konieczny commenced on 19 April 2018. It is also not disputed that Mr Williams’s office door is approximately 2 metres from where Ms Bates and Mr Konieczny were standing during the incident. Mr Williams gave evidence that he first became aware that the conversation was occurring between Ms Bates and Mr Konieczny when he left his office to scan a document at the printer. In his witness statement, Mr Williams stated that he:
(a) “walked past Mr Konieczny on my way to the printer and heard [Mr Konieczny] talking to Ms Bates in a raised and agitated voice. It sounded like he was barking at her. The tone Mr Konieczny was using was forceful and intimidating. [Mr Williams] could not hear Ms Bates talking at all. [Mr Williams] didn’t hear much of the specifics of what he was saying to her, but did hear him say something like “I don’t care what it costs”;[89] and
(b) “continued to walk a few steps up the hallway towards the printer, and then stopped, turned and looked back at Mr Konieczny and paused for approximately 30 seconds to make sure that the conversation didn’t escalate further. I was standing approximately six metres away from Ms Bates and Mr Konieczny…The conversation didn’t get any more out of hand so I walked further up the hallway to the printer.”[90]
In cross-examination, Mr Williams maintained that he only heard Mr Konieczny say words to the effect of “I don’t care what it costs”.[91] Mr Williams gave evidence that when he stated that Mr Konieczny’s “tone… was forceful and intimidating” he was referring to the tone of the conversation he heard, not just the six words he understood.[92] Mr Williams said that he understood the meaning of the word “tone” to mean the manner in which someone uses their voice.[93] He accepted that Mr Konieczny he was not yelling.[94]
Mr Williams gave evidence that on his return from the printer to his office, he saw Mr Konieczny walking towards him with an angry, frustrated scowl on his face.[95] He alleges that he “asked Mr Konieczny whether he was calm and what had happened” and said to him that he “felt that the way he was talking to Ms Bates was inappropriate and out of line.”[96]
Mr Williams also alleges that Ms Bates told him that Mr Konieczny said something about “talking to her however he wanted” almost immediately after the incident,[97] and Ms Bates was “distressed” and “quite upset and crying” following the incident.[98]
Ms Power gave evidence that in the middle of the day on 19 April 2018, Ms Bates told her about the 19 April 2018 incident, including that Mr Konieczny was standing over her at the time of the conversation,[99] he was waving the Policy around and pushed it in her face,[100] that she was upset,[101] and that Mr Konieczny threw it down on the desk at her to read.[102]
Consideration of the evidence concerning the incident on 19 April 2018
I prefer the evidence of Ms Bates where it is in conflict with that of Mr Konieczny and Mr Carter. In relation to the 19 April 2018 incident, Mr Konieczny’s evidence was often inconsistent, such as during cross-examination when he was asked whether he said “I’m sick of this” and when he was asked whether Mr Williams asked him if he was calm and ok following the incident. The inconsistencies in Mr Konieczny’s evidence negatively affected his credibility. As I have already stated in paragraph [26] above, Mr Konieczny’s unwillingness to make reasonable concessions, such as in relation to whether a raised voice and getting frustrated at someone may be inappropriate, also negatively affected his credibility.
Mr Carter’s recollection of the incident was often poor. For example, during cross-examination, Mr Carter mistakenly maintained that the incident with Ms Bates occurred on 18 April 2018. Mr Carter said that he was “sure” of this on two occasions.[103] Mr Carter also gave evidence that his memory was “excellent” and “excellent on this event”.[104] His credibility was negatively affected by his evidence that he intentionally misled Mr Kirkpatrick in relation to the 19 April 2018 incident[105] and his response “I don’t know you” when asked by Counsel for Mt Arthur whether she was a person to whom he would tell the truth.[106]
In contrast, Ms Bates presented as an honest and reliable witness. She gave consistent and credible evidence as to the conduct that occurred, both contemporaneously to the events,[107] and under cross examination. Ms Bates’s evidence is corroborated by Mr Williams’s evidence to the extent that (a) he heard Mr Konieczny talking to Ms Bates in a raised and agitated voice, (b) the tone Mr Konieczny was using was forceful and intimidating, (c) Ms Bates told him that Mr Konieczny said something about “talking to her however he wanted” almost immediately after the incident, and (d) Ms Bates was “distressed” and “quite upset and crying” following the incident. Mr Williams’s evidence was that the conversation he heard was “forceful and intimidating”, not just the words he understood. Given Mr Williams’s evidence he only paused to focus on the conversation for a period of approximately 30 seconds from approximately 6 metres away, it is plausible that he would not have comprehended all of the words that Mr Konieczny said to Ms Bates in a forceful tone. I found Mr Williams to be a reliable and credible witness.
Ms Bates’s evidence is also corroborated by Ms Power’s evidence in relation to what Ms Bates said to her following the incident on 19 April 2018 and, importantly, the concessions made by Mr Carter in cross-examination that Mr Konieczny was frustrated and that he raised his voice during the incident.
In my view, the interactions between Mr Konieczny and (a) Mr Williams on 19 April 2018, a few minutes after the incident and (b) Ms Bates for the second time on 19 April 2018, following the incident, also support Ms Bates’s version of events. Even if I were to take Mr Konieczny’s evidence at its highest, in my view, it is highly unlikely that (a) Mr Williams would ask Mr Konieczny whether he was calm and ok immediately following the incident and (b) Mr Konieczny would say to Ms Bates “At no stage was I having a shot at you over the PPE issue” some hours after the incident, unless Mr Konieczny did in fact behave inappropriately towards Ms Bates.
In any event, my findings in relation to what happened in Mr Konieczny’s interactions with Mr Williams and Ms Bates following the incident do not accord with Mr Konieczny’s evidence taken at its highest. Mr Williams and Ms Bates both gave consistent evidence throughout the proceedings in relation to the interactions that they had with Mr Konieczny following the incident on 19 April 2018. I accept their evidence in that regard. In particular, I find that (a) Mr Williams did observe Mr Konieczny with an angry, frustrated scowl on his face short after the incident, at which time Mr Williams asked him whether he was calm and what had happened and then told him that the way he was talking to Ms Bates was inappropriate and out of line,[108] and (b) Mr Konieczny did go over to Ms Bates’s desk later on 19 April 2018 and say words to the effect of “I’m sorry for how I spoke to you earlier, I wasn’t having a go at you, I was frustrated and cranky with the issue” This evidence supports a finding that Mr Konieczny did behave inappropriately towards Ms Bates on 19 April 2018.
I reject the CFMMEU’s submission that the differences between Ms Bates’s email statement prepared as part of the investigation process (19 April Email)[109] and her evidence given in these proceedings, negatively affects her credibility. In my view, the 19 April Email conforms, in substance, to her evidence given in these proceedings, particularly in circumstances where Ms Bates’s evidence, which I accept, is that the 19 April Email was a higher-level description of what happened and that she did not record in her email everything that happened within that time period.[110]
I reject the CFMMEU’s submission that a Jones v Dunkel inference should be drawn in relation to Mt Arthur’s unexplained failure to call Mr Mark Bayley, Blast Supervisor, and Mr Kirkpatrick. It is uncontroversial that Mr Kirkpatrick and Mr Bayley were located in Mr Kirkpatrick’s office (which is located adjacent to Mr Williams’s office) at the time of the incident. An email sent from Mr Kirkpatrick to Mr McEniry, as part of the investigation, states, “I could hear his [Mr Koniecnzy’s] voice in an elevated tone outside my office with no actual dialogue recorded in what he was saying or who to”.[111] The rule in Jones v Dunkel does not operate to require a party to give merely cumulative or corroborative evidence.[112] In circumstances where Mr Konieczny, Ms Bates, Mr Carter and Mr Williams gave evidence concerning the 19 April 2018 incident and Mr Kirkpatrick’s email statement is corroborative of Ms Bates’s and Mr William’s evidence, I do not accept that an adverse inference should be drawn from Mt Arthur’s failure to call Mr Kirkpatrick and/or Mr Bayley to give evidence.
For the reasons given, on the balance of probabilities and having regard to the Briginshaw standard I find that during the incident on 19 April 2018, Mr Konieczny:
(a) pointed forcefully at the Policy, jabbing at the page aggressively, making it shake;
(b) got agitated and raised his voice;
(c) made Ms Bates feel intimidated due to the volume and tone of his voice and the way he was poking the Policy;
(d) said words to the effect of “I’ll speak however I want, I’m sick of this” in an aggressive and loud tone;
(e) said words to the effect of “I’m sick of this shit. BHP is a multi-million dollar company. Safety should be their first priority” in a raised voice and aggressive tone; and
(f) later on 19 April, apologised to Ms Bates for his conduct earlier in the day.
However, I do not accept that Mr Konieczny threw the Policy on Ms Bates’s desk in an aggressive manner. Despite Ms Power’s evidence that Ms Bates told her that Mr Konieczny threw the Policy on her desk on 19 April 2018, Ms Bates could not recall exactly how Mr Konieczny provided her with a copy of the Policy both in her written and oral evidence in these proceedings. I cannot, applying the Briginshaw standard, be satisfied on the balance of probabilities that Mr Konieczny engaged in such conduct based solely on Ms Power’s evidence in circumstances where Ms Power did not witness the event, Ms Bates could not recall how Mr Konieczny gave her the Policy, and other evidence was given on Mr Konieczny’s side of the ledger to the effect that the Policy was not thrown on Ms Bates’s desk.
Accordingly, I am satisfied that on 19 April 2018 Mr Konieczny acted in an intimidating manner through raising his voice and speaking aggressively which caused Ms Bates distress and he said words to the effect of, “I will speak to you how I want” in a forceful tone. However, I am not satisfied that Mr Konieczny threw the Policy on Ms Bates’s desk in an aggressive manner. As is the case with the interaction on 18 April 2018, I accept that Mr Koniecnzy did not intend to act in an intimidating or aggressive manner towards Ms Bates, and that he was genuinely frustrated at what he considered to be unreasonable conduct on the part of Mt Arthur towards employees he was representing in his capacity as a CFMMEU delegate. However, again, Mr Koniecnzy’s conduct, viewed objectively, was intimidating and aggressive and it caused distress to Ms Bates. Mr Koniecnzy is clearly a passionate person, but he needs to take care to ensure that both what he says to other employees in the workplace and the way in which he communicates with other employees is appropriate.
The investigation
On 19 April 2018, Mt Arthur became aware of the 18 and 19 April 2018 incidents. Mt Arthur appointed Mr McEniry to conduct an investigation into both incidents. I accept Mr McEniry’s evidence in relation to the steps he took to investigate the incidents, including obtaining statements from Mr Smith, Ms Power, Mr Kirkpatrick, Mr Williams, Mr Carter, Mr Konieczny, Ms Bates and Ms Sue Deboos and interviewing Mr Konieczny before making his recommendation the Warning was appropriate.
Throughout these proceedings, it has been suggested by the CFMMEU that the outcome of the investigation into the 18 and 19 April 2018 incidents was influenced by the fact that Mr Konieczny was, in his capacity as a delegate, representing the interests of CFMMEU members in relation to the polarised prescription safety glasses issue. This is a serious allegation. It is therefore appropriate to apply the Briginshaw standard to the allegation.[113]
Although the CFMMEU did not identify in detail all of the evidence it relies upon to substantiate the above allegation, it clearly relies on at least the following matters:
(a) comments made by Mr Kirkpatrick,[114] including “I will micro manage people out of the business that do not conform to my way, or raise issues regarding the culture within the Shotfiring crew” or words to that effect;[115]
(b) a text message exchange between Mr McEniry and Mr Whitney during the investigation, including a text message from Mr McEniry to Mr Whitney stating “fun times” in reference to the investigation;[116] and
(c) Mr McEniry’s failure to interview Mr Carter in relation to the 19 April 2018 incident.
First, in relation to the comments alleged to have been made by Mr Kirkpatrick referred to in paragraph [67(a)] above, general comments of that kind do not, in my view, warrant a finding that Mr Kirkpatrick was targeting Mr Konieczny as a result of his status as a union member or delegate.
Secondly, in regards to the text message exchange between Mr McEniry and Mr Whitney during the investigation, I do not accept that this evidence weighs in favour of a finding that the outcome of the investigation into the 18 and 19 April 2018 incidents was influenced by the fact that Mr Konieczny was representing the interests of CFMMEU members in relation to the polarised prescription safety glasses issue. I accept the evidence given by Mr McEniry in cross-examination that his use of the phrase “fun times” was sarcastic and that he did not take any pleasure in conducting the investigation.
Thirdly, in relation to Mr McEniry’s failure to interview Mr Carter in relation to the 19 April 2018 incident, Mr McEniry conceded in cross-examination that it was appropriate for him to speak to Mr Carter as part of the investigation. Although Mr McEniry’s failure to interview Mr Carter resulted in the investigation not being as thorough as it could have been, I do not accept that it weighs in favour of a finding that the outcome of the investigation into the 18 and 19 April 2018 incidents was influenced by the fact that Mr Konieczny was representing the interests of CFMMEU members in relation to the polarised prescription safety glasses issue. I am satisfied that Mr McEniry took his task as investigator seriously and made genuine efforts to determine what, in fact, had occurred. I am satisfied that any deficiencies in the investigation were not motivated by an intention or strategy to target Mr Konieczny because he is a member of the CFMMEU and was a site delegate at the time of the incidents. I am also of the view that Mr Konieczny was awarded sufficient procedural fairness in that Mt Arthur gave him an opportunity to respond to the allegations before findings were made and the Warning was issued.
Having considered all the evidence adduced, I am satisfied that the Warning was issued to Mr Konieczny as a result of his conduct on 18 and 19 April 2018 and not as a result of, or in connection with, his status or role as a union member or delegate.
Consideration
I have found that Mr Konieczny acted in an intimidating and aggressive manner toward Ms Power and Ms Bates. In engaging in this conduct, Mr Konieczny acted in breach of Mt Arthur’s Code of Conduct – Health and Safety, which provides that an employee should never “use or tolerate threats, intimidation, harassment, bullying or violence at work”[117] and the Workplace Discrimination, Harassment and Bullying Policy.[118] At the time of the incidents, I am satisfied that Mr Konieczny had been trained on the Code of Conduct,[119] knew that it was inappropriate to harass other people at work,[120] and knew that it was not inappropriate to act in an intimidating manner (which he described as confronting, rude and abrupt).[121] Further, the Warning was issued in circumstances where Mt Arthur had told Mr Konieczny in a previous letter dated 9 August 2017:[122]
“Brad, you must… raise your concerns in a way that is respectful and constructive. On this occasion you were not respectful or constructive, and that is not acceptable.”
For these reasons, in my view, Mr Konieczny’s conduct formed an evident and intelligible justification for issuing the Warning. It follows there is no unreasonableness in Mt Arthur issuing the Warning. I am also satisfied that there is no injustice in Mt Arthur issuing the Warning in circumstances where Mt Arthur undertook a reasonable investigation into the incidents before issuing the Warning to Mr Konieczny and two of the three instances of misconduct alleged by Mt Arthur in the Warning have been substantiated.
Conclusion
For the reasons given, I decline to grant the relief sought by the CFMMEU on behalf of Mr Konieczny because to do so would involve an unwarranted intrusion upon Mt Arthur’s right to manage its employee, Mr Konieczny. Accordingly, the CFMMEU’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr K Endacott, on behalf of the CFMMEU
Ms J Williams, of counsel, instructed by Ms S Beaman, solicitor for Mt Arthur
Hearing details:
2018.
Newcastle:
27 and 28 September and 9 November.
Final written submissions:
Mt Arthur, 26 October 2018
CFMMEU, 29 October 2018
<PR703180>
[1] Australian Federation Union of Locomotive Enginemen v State Rail Authority of New South Wales(XPT Case) (1984) 295 CAR 188; Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU[2015] FWCFB 1889 at [26]-[27]
[2] Minister for Immigration and Citizenship v Li (2013) CLR 332; [2013] HCA 18 at [76]
[3] Ex A5 at [44]
[4] Ibid
[5] Ex A6 at [24]
[6] PN 985
[7] PN 966
[8] Ex R7; attachment TM 19
[9] PN971
[10] PN 995
[11] Ibid; PN1158
[12] PN1024
[13] PN1062-3
[14] PN1064-5
[15] PN1066
[16] PN1067-8
[17] Ex R2 at [11]
[18] PN1875
[19] Ibid
[20] PN1724
[21] PN1726
[22] PN1734
[23] PN1832, PN1891, PN1835 and PN1845
[24] PN1883 to 1888
[25] PN1882
[26] Ex R7; attachment TM-14
[27] Ibid; attachment TM 11
[28] 101 CLR 298
[29] PN1712; PN1727
[30] See Claremont Petroleum NL v Cummings (1992) 110 ALR 239, 259 per Wilcox J
[31] Ibid; attachment TM 19
[32] PN463-471
[33] Ex A5 at [24]
[34] Ibid
[35] Ibid
[36] PN572
[37] PN574
[38] PN716
[39] PN721
[40] PN726
[41] PN727
[42] PN730
[43] PN490, PN516,PN517, PN518, PN525, PN526, PN529, PN532 to PN534, PN545, PN550, PN551 and PN560
[44] PN617
[45] PN618
[46] PN618
[47] PN678, PN679, PN681, PN702 and PN737
[48] PN671; PN675 and PN677
[49] Ex A6 at [21]
[50] PN689
[51] PN685
[52] PN686
[53] Ex A5 at [25]
[54] Ibid
[55] Ibid
[56] PN790
[57] PN792
[58] PN794 and PN799
[59] PN788 and PN801
[60] PN803
[61] Ibid at [30]
[62] PN892
[63] Ex A6 at [43]; PN893
[64] PN895
[65] Ex A3 at [9] – [12]
[66] Ibid at [15]
[67] Ex A4 at [15]
[68] PN257
[69] PN261; PN265
[70] PN 269
[71] PN338 - 341
[72] PN284
[73] PN286
[74] PN330 - 331
[75] PN281
[76] Ex R1 at [14] and [15]
[77] Ibid at [15] and [16]
[78] Ibid at [19]
[79] Ibid
[80] PN1287
[81] PN1414, PN1418 to PN1420, PN1428, PN1435, PN1437, PN1445 and PN1486
[82] PN1493 to PN1499
[83] PN1504 to PN1507
[84] PN1513, PN1559 and PN1562
[85] PN1567
[86] PN1452, PN1456 and PN1540
[87] Ex R1 at [30]
[88] Ibid
[89] Ex R5 at [6]
[90] Ibid at [7] and [8]
[91] PN2141
[92] PN2157
[93] PN2153
[94] PN2143
[95] Ex R5 at [8]
[96] Ibid at [9]
[97] Ibid at [12]
[98] Ibid at [12] and [13]
[99] PN1910
[100] PN1911
[101] PN1916
[102] PN1922, PN1923 and PN1925
[103] PN154, PN213, PN214 and PN216
[104] PN217, PN221, PN225 and PN231
[105] PN362
[106] PN365
[107] Ex R7; attachment TM 11
[108] Ex R5 at [9]
[109] Ibid
[110] PN1415; PN1570
[111] Ex R7; attachment TM8
[112] ACCC v Olex [2017] FCA 222 at [484]
[113] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363
[114] Ex A5 at [20] and [29]
[115] Ex A5 at [20]
[116] Ex A13
[117] Ex R7; attachment TM-2 at [89]
[118] Ibid; attachment TM-3
[119] PN446
[120] PN461
[121] PN459-461
[122] Ex R7; attachment TM 21
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