Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd
[2013] FCA 1097
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2013] FCA 1097
Citation: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2013] FCA 1097 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD (ACN 010 595 721) File number: QUD 173 of 2011 Judge: COLLIER J Date of judgment: 24 October 2013 Catchwords: INDUSTRIAL LAW – claim of adverse action pursuant to s 346 Fair Work Act 2009 (Cth) – presumption in s 361 Fair Work Act 2009 (Cth) that adverse action taken for prohibited reason unless employer proves otherwise – allegations that union member physically and verbally abused co-workers in relation to amount of overtime worked – allegations that union member directed co-workers not to attend work – decision-maker purported to terminate employment of union member based on findings of physical and verbal abuse and improper direction of co-workers – findings by decision-maker of serious misconduct on part of union member – whether union member had been engaged in industrial activity – credibility of witnesses – evidence of co-workers and decision-maker preferred to that of union member – respondent company discharged onus of proving that adverse action not taken against employee for proscribed reasons Legislation: Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 346, 347, 360, 361 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32 cited Dates of hearing: 3, 4, 5, 6, 20 July 2012 Date of last submissions: 2 October 2012 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 101 Counsel for the Applicant: Mr S Crawshaw SC with Mr A Slevin Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr H Dixon SC with Mr C Murdoch Solicitor for the Respondent: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 173 of 2011
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND: BHP COAL PTY LTD (ACN 010 595 721)
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
24 OCTOBER 2013
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application filed 18 July 2011 be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 173 of 2011
BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
AND: BHP COAL PTY LTD (ACN 010 595 721)
Respondent
JUDGE:
COLLIER J
DATE:
24 OCTOBER 2013
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 12 May 2011 the respondent terminated the employment of Mr Judd Crompton. At all material times Mr Crompton was a member of the applicant union. The applicant claims that the termination constituted adverse action in contravention of s 346 of the Fair Work Act 2009 (Cth) (“the Act”). By way of substantive relief, the applicant seeks:
·an order for reinstatement of Mr Crompton to his employment with the respondent (on terms and conditions no less favourable than those enjoyed by him immediately prior to the termination of his employment with the respondent) and for Mr Crompton’s continuity of employment with the respondent to be maintained;
·an order awarding compensation for loss and damage to Mr Crompton suffered because of the respondent’s contraventions of the Act;
·the imposition of penalties upon the respondent for contraventions of s 346 of the Act; and
·an order that any penalties imposed upon the respondent be paid to the applicant.
The dismissal of Mr Crompton by the respondent took place against the background of incidents involving Mr Crompton, Mr Darren Bright (an employee of a contractor) and Mr Matthew Moore (another employee of the respondent) in March 2011. It appears that the incidents arose from views taken by Mr Crompton of certain overtime undertaken by Mr Bright and Mr Moore.
The applicant claims that the respondent took adverse action against Mr Crompton (including termination of his employment following a decision to stand him down and an investigation) for reasons prohibited by the Act.
In my view the application should be dismissed. Before turning to my reasons for this decision, it is appropriate to set out, in some detail, the background to the current proceeding.
BACKGROUND
Mr Crompton
Mr Crompton has been a member of the applicant union since 1996. He commenced fixed-term employment with the respondent as a mechanical fitter at the Peak Downs Mine (“the mine”) on 7 June 2004. In 2009 he became the area delegate for the applicant union in the field crew. His responsibilities included representing and advising members on work related issues including disciplinary issues, training, grievances, speaking to the superintendent about safety issues, housing, overtime and roster relief.
In November 2010 Mr Crompton began working in the service bay as a fitter in the maintenance department. At around this time Mr Crompton also became a shift delegate for the applicant union in C Crew.
Mr Bright
At all material times Mr Bright was employed by a third party as an auto-electrician. His employer was contracted to work at the mine, and Mr Bright worked with the maintenance department of the respondent in the service bay. It appears that Mr Bright met Mr Crompton at the mine site.
Mr Bright was not a member of the applicant union, or any union, at any relevant time.
Mr Moore
At material times Mr Matthew Moore was employed by the respondent as a diesel fitter at the mine. He commenced employment with the respondent on 31 January 2001. After a period during which he was employed by third parties he recommenced with the respondent at the mine on 2 June 2007, where he remained until 20 September 2011. On 22 March 2011, when the incident involving Mr Crompton took place, Mr Moore was working in the role of a diesel fitter in the mine ancillary service bay on D Crew. On that day Mr Peter Gottke – who was usually Mr Moore’s direct supervisor – was the acting Ancillary Service Bay Superintendent.
At all relevant times Mr Moore was also a member of the applicant union.
Relevant overtime policies
It is common ground that the incidents involving Mr Crompton and Mr Bright, and Mr Crompton and Mr Moore, arose from Mr Crompton forming a view concerning the working of overtime by Mr Bright and Mr Moore.
The respondent has a fatigue management policy – the BMA Safe Hours of Work Standard (“the BMA fatigue policy”) – which applies to both employees and contractor employees. I understand that the BMA fatigue policy, which is dated 1 January 2006, was in operation at all material times in this proceeding. Paragraph 6.2.1 of the BMA fatigue policy states that a critical aspect of managing fatigue is ensuring there is sufficient opportunity for rest and sleep while the employee is not at work, and the policy therefore makes provision for, inter alia, maximum shift length and gross shift length at BMA sites, gross working times in roster cycles and weeks, and deviations from limits specified in the policy. A copy of the BMA fatigue policy is annexed to the affidavit of Mr Robert Law affirmed 27 October 2011 (annexure RL-1).
Separately to the BMA fatigue policy, in or around 1998 the Peak Downs Lodge of the applicant union adopted an overtime policy in respect of union members employed at the mine. The applicant’s policy was that seven-day roster employees should not work more than one overtime shift per round, and that five-day roster employees should not work more than 56 hours in a week. In his affidavit affirmed 26 October 2011 Mr Terrence Low, president of the Peak Downs Lodge, deposed that a reason for the adoption of the policy was to enable five-day roster employees to work longer hours to make up income lost through changes in company policy towards production bonuses. On the policy the aspiration is also expressed of more workers being employed by the respondent at the mine if overtime for existing workers is limited.
A copy of the union policy is annexed to the affidavit of Mr Mark Stroppiana sworn 23 November 2011 (annexure MAS-9).
Mr Bright gave evidence that he worked a roster of five days on and four days off, then four days on and five days off.
Mr Moore gave evidence that the roster he worked at the mine consisted of two “rounds” per month, with each “round” containing a panel of 16 days in which a total of 96 rostered hours were worked (affidavit of Matthew Moore sworn 24 November 2011). He stated that he generally worked one overtime shift on every round that he worked. If he wished to work overtime he would usually approach the Maintenance Planner, Mr Graeme Azzopardi, to ascertain if there was overtime available.
Incidents involving Mr Crompton and Mr Bright
Relevant incidents between Mr Crompton and Mr Bright took place on 5 March 2011 and 22 March 2011.
Mr Crompton’s version of events
In relation to the incident on 5 March 2011, Mr Crompton deposed in his affidavit that his attention had been brought to the fact that Mr Bright had worked overtime after he had completed his normal shift in the service bay. His evidence continued:
51.It was the practice, consistent with the rule that I had been told about when I started, that production and engineering employees only worked one overtime shift in a roster cycle. This practice had also been discussed at a number of union meetings that I attended …
52.I said to Mr Bolan and the other worker words to this effect:
“Well I will have a chat to him (Darren). He (Darren) is pretty new so he probably doesn’t know.”
53.I told Mr Bolan this because I understood that it was my role as a delegate to deal with these sorts of issues.
54.I was concerned that Darren did not know or understand the BMA Safe Hours of Work Policy. I found the BMA Safe Hours of Work Policy difficult to understand myself. I expected it was also hard for Darren to understand.
55.I was also aware that Darren lived in Ipswich which is more than a 12 hour drive from the mine. I was concerned about Darren driving his car from Peak Downs Mine to Ipswich at the end of a round if he had been working lots of overtime.
56.I then walked over to Darren to speak with him. I said words to the effect of:
“How many days in a row are you going to do? Do you know about the BMA Safe Hours of Work Policy?”
57.Darren told me that he was not aware of the BMA Safe Hours of Work Policy. I encouraged him to speak to a foreman or his boss about the BMA Policy.
58. I said to Darren words to the effect of:
“There are so many hours you can work in a certain period of time and I don’t know how many you can do. You would want to get that checked out.”
59. …
…
62.Because I was concerned about Darren and I wasn’t clear about how the Policy applied to him, I then rang Robert Law, CFMEU Peak Downs Lodge Vice President to speak with him about the BMA Safe Hours of Work Policy. Mr Law briefly discussed the BMA Safe Hours of Work Policy with me. At the end of the conversation, I wasn’t any clearer.
63.I then told Darren about my telephone discussions with Mr Law. I cannot recall what I said to Darren about my telephone discussions with Mr Law.
64. Darren said to me words to the effect of:
“No worries, thanks for your help.”
65.At the end of the conversation, I recall that Darren also said that he would speak to someone else about the BMA Safe Hours of Work Policy.
66.I did not instruct Darren not to report for work the next day to work a second overtime shift due to the ‘union overtime policy’. I did not mention the ‘union overtime policy’ to Darren at any stage throughout our discussions.
67.I did not discuss any ‘union overtime policy’ with Darren. I only spoke with him about the BMA Safe Hours of Work Policy.
Mr Bright’s version of events
Mr Bright deposed that on 5 March 2011 he was working an overtime shift in the mobile maintenance department at the mine. He was approached by Mr Crompton. In his affidavit affirmed 22 November 2011 Mr Bright deposed that the following interchange took place:
12. … Mr Crompton came over to me and said words to the effect:
What are you doing here?
13.I thought Mr Crompton just wanted to have chat [sic], so replied with words to the effect:
I am changing the isolation on the grader.
14. Mr Crompton then said words to the effect:
No, what are you doing here?
15.I took this to mean that he was asking what I was doing at PDM on that day. It seemed to me that Mr Crompton knew that I was not rostered on to work. We had a discussion to the following effect:
Me What do you mean? I’m here as I was told to be here.
Mr Crompton Oh well, you know you’re not supposed to be here.
Me Well, no.
Mr Crompton Workers can only do one overtime shift per round. This isn’t a union thing. This is the BMA fatigue policy.
Mr Bright deposed that their discussion continued, with Mr Crompton concluding:
Don’t come in tomorrow (being Sunday 6 March 2011, a day which had been organised for me to work by my employer).
Mr Bright then deposed that he rang his supervisor, Mr Heath Strickland, and informed Mr Strickland about his conversation with Mr Crompton. Mr Strickland’s response was:
I’m not 100% sure, but I know that what he’s said isn’t the BMA policy. That’s bullshit. Go and check with Bowlo. He’s ex-Southern Cross.
Mr Bright deposed that he then had a conversation with Mr Michael Bolam who informed Mr Bright that the policy to which Mr Crompton had referred was the union policy rather than the BMA Fatigue Policy, and that Mr Bright (not being a union member) was not obliged to comply with it.
Mr Bright deposed that he then completed an overtime shift on 6 March 2011.
On 22 March 2011 Mr Bright deposed that he saw Mr Matthew Moore leaving work at around 11.00 am or midday, and that Mr John Huther told Mr Bright:
Matthew and Judd just had a discussion in the office regarding overtime.
Mr Bright deposed that he then went to the office of the supervisor, Mr Kerry King, to talk to him about job priority, but Mr King was with another person and Mr Bright was unable to speak with him. Mr Bright then decided to leave the front office to continue with one of the jobs he was doing. He continued:
48.As I entered the workshop area, Mr Crompton and another BMA employee, David Smith (Mr Smith) were standing in the passageway used to get from the front office to the service bays. Mr Crompton and Mr Smith were standing roughly a metre or so to the left of the steel posts which supported the hose reels and a metre or so towards me as I walked out of the door. Mr Crompton and Mr Smith were standing about 3 metres away from the door leading out of the front office of the service bay office.
49.In order to get to the service bay I had to turn to the right after coming out of the front office. As I went to walk to my right and to the right of where Mr Crompton and Mr Smith were standing, they stood side by side in front of me with their arms crossed. As I tried to go around them (to their left and to my right), they both leaned their bodies sideways and partially blocked my path. I elected to walk to my right hand side of them as, to my left of them, was blocked by the bench and the parts on the ground and the path where they were standing was blocked by them. The only room left to pass by them was to my right of them.
50.Mr Crompton and Mr Smith’s actions at this point were not enough to block my path completely, but I realised that if I kept walking they would keep leaning over and would eventually block my path.
51.I did not try to keep walking, because if I did there would have been body contact with either Mr Crompton or Mr Smith, and I was concerned that they may have pushed me into the wall or something. Because of what Mr Crompton and Mr Smith did, I stopped because I did not want a physical confrontation. I felt intimidated. After I stopped I stared at them until they backed down and let me pass.
52.I assumed that Mr Crompton’s and Mr Smith’s behaviour was as a result of Mr Crompton and Mr Smith believing that I had been talking to Mr King about what had just happened between Mr Crompton and Mr Moore. There was to my knowledge no other reason for their conduct.
The primary difference in the versions of the incident of 5 March 2011 given by Mr Bright and Mr Crompton was that Mr Bright alleged that Mr Crompton directed him not to attend work on 6 March 2011, whereas Mr Crompton denied making that direction.
Further, in his affidavit sworn 22 December 2011 Mr Crompton denied that events occurred on 22 March 2011 as claimed by Mr Bright at paragraphs 48-51 of Mr Bright’s affidavit, and specifically denied that he and Mr Smith had deliberately blocked the path of Mr Bright in an intimidating manner.
Mr Moore’s evidence concerning background to the incident between himself and Mr Crompton
In his affidavit Mr Moore deposed, in summary, as follows:
·The first 16 day round of the D Crew roster for March started on 7 March 2011. He completed an unrostered overtime shift on that round.
·Mr Moore had organised leave from 27 March 2011, and had booked a holiday for himself and his family. He wanted extra money for the holiday.
·Because he would be away from work the period following that date (and therefore would not be doing any overtime during that period), he thought that an extra overtime shift before going on leave would allow him to earn that extra income. He believed that, in the circumstances, doing an additional overtime shift would be allowable and acceptable by the union (as he would not have the opportunity to do an overtime shift while on leave).
·Prior to 22 March 2011 he had decided to work an unrostered overtime shift on the last day shift of A Crew’s round, being 22 March 2011. He was rostered to work two day shifts after that on 23 and 24 March 2011 as part of his next D Crew round before taking leave.
·He saw Mr Azzopardi prior to 22 March 2011 to ascertain whether there was overtime available on 22 March 2011. There was, and Mr Moore was rostered to work on that day on the shift from 6.30 am to 6.30 pm.
Incident involving Mr Crompton and Mr Moore
Mr Moore has known Mr Crompton since approximately 2003. His social dealings have primarily been through Mr Crompton’s brother-in-law, who is a friend of Mr Moore.
Mr Crompton and Mr Moore gave similar versions of the incident. Their evidence diverged in respect of language used, whether aggression had been displayed by Mr Crompton, and the level of aggression displayed. Further in his evidence Mr Crompton referred to the BMA fatigue policy, whereas Mr Moore stated that Mr Crompton had referred only to the union policy.
Mr Crompton’s version of events
Mr Crompton’s version of events appeared in his affidavit sworn 3 July 2012 and was as follows:
80.At approximately 12.45pm on 22 March 2011, David Smith and I were doing paper work in the office in the service bay. The office has two rooms. We were in the outer room. Matt Moore and John Huther were also in the outer office.
81.Matt is a Fitter. I believe that Matt has worked in the service bay since approximately December 2010. We usually didn’t work together as Matt is on a different shift to me. However, he was working overtime on 22 of March 2011.
82.Kerry King was in the back office. I believe that Graham Azzopardi, Service Bay Planner, may have also been in the back office with Mr King.
83.While we were working, Matt and I were talking about cars. Our conversation then turned to an incident that had occurred several days earlier at Peak Downs Mine. Matt advised me that he had been on site on that day as he was working overtime.
84.The practice of production and engineering employees at Peak Downs Mine was to only work one overtime shift per roster cycle. This is a matter that is regularly raised at union meetings. As a delegate, I understood it was my responsibility to raise with Matt that he was acting contrary to the accepted practice.
85.I told Matt that he is working overtime today during his six day off period and had worked overtime in the previous two day off period. I told Matt that he can only work one overtime shift per cycle.
86.Matt said to me words to the effect of:
“Yeah, I have worked that.”
87.I then said words to the effect of:
“It is a scabby act to work excessive overtime.”
88. Matt said to me words to the effect of:
“I don’t see what the problem is if I am going on holidays.”
89. Matt then said to me as follows or similar words to this effect:
“I don’t know about any overtime rules for Peak Downs Lodge.”
90.Matt and I had previously spoken about the overtime rule in the crib room. It is often discussed on site.
91. I said to Matt words to the effect:
“You’re a liar.”
92. I then said to Matt words to the effect:
“You have been here for four years. How do you not know? There is a policy on the crib room wall.”
93.There was a document on the notice board, near the drink fountain of the crib room in the service bay. This document was titled ‘For Your information’ (“the document”). The document referred to the requirements under the BMA Safe Hours of Work Policy.
94. Matt then said to me words to the effect of:
“I did not know about the document on the crib room wall.”
95.I said to Matt that he knew about the document that was on the crib room wall. I said to him words to this effect:
“If you can come in I can show you.”
96.I directed him to the crib room wall. I touched Matt by the sleeve of his shirt and said:
“Come on I will show you where it is.”
97.I did not grab Matt’s shirt or shoulder. I was not aggressive. I was only indicating to Matt that I could show him where the document was on the crib room wall. I did not drag him through the service bay office door. I did not threaten to assault him.
98.Matt and I left the office and went into the crib room. The crib room is situated about 10 metres away from the office.
99.Matt and I went into the crib room. I believe that there were a couple of other contractors in the crib room; however I do not know their names.
100. I showed Matt the document on the crib room wall.
101. Matt said to me words to the effect of:
“I didn’t know anything about that. I am in the wrong.”
102. I said to Matt words to this effect:
“You’re a liar. Tell the truth. Man up.”
103. Matt then said to me words to the effect of:
“Well I would like to speak to Terry Low.”
104.Mr Low is the CFMEU Peak Downs Lodge President. I gave Matt Mr Low’s telephone number so he could speak to him.
105. I left the crib room so Matt could ring Mr Low in private.
106.I walked to my locker which is approximately 15 metres away from the crib room.
107. I then tried to ring Mr Low on his mobile. He did not answer.
108. I then rang Mr Law and left a message on his mobile.
109.I tried calling Mr Low and Mr Law to tell them what had happened and that Matt would be calling them about the overtime policy.
110.As I was standing near my locker, Matt walked towards me and started yelling at me. Matt said to me words to this effect:
“You are a fat cunt! I guess I was wrong, but I didn’t know about the policy!”
111. …
112. Matt was agitated and he said to me words to the effect:
“Do you want me to go?”
113. I then said to him words to the effect:
“Well you should have only done one overtime shift.”
114. Matt then said to me words to the effect:
“Well then I will leave then.”
115. I responded in words to the effect:
“Well if you want to leave then leave.”
(Extract incorporates amendments to evidence made at the hearing.)
Mr Moore’s version of events
Mr Moore’s version of events as found in his affidavit was as follows:
34.On 22 March 2011, I arrived at site for my overtime shift at about 7.00am. I was late for work. Mr King was the A Crew supervisor. Upon my arrival at work, Mr King allocated various tasks to me.
35.At about 12.30pm that day, I walked into the service bay office to talk to Mr King about another job as I had finished what I was doing.
36.When I arrived, I found Mr King already talking to a contractor in his office. Mr King shared an office with Mr Azzopardi, and I noted that Mr Azzopardi was at his desk. Mr King and Mr Azzopardi’s office adjoined a shared workspace used by servicemen, fitters etc. This workspace was known as the front office. The door to Mr King’s office was open.
37.When I arrived, I noted that Mr Crompton, John Huther (Mr Huther) and David Smith (Mr Smith) were in the front office. Mr Huther was an electrician employed by Down Under Maintenance. Mr Smith was a diesel fitter employed by BHPC in the service bay. When I walked in, I had a chat with them.
38.I recall that Mr Crompton was sitting at a computer. I saw that Mr Crompton was looking towards a computer screen.
39.I recall that Mr Crompton, Mr Smith and Mr Huther were discussing BMA’s “sleeves down” policy. I recall that Mr Crompton mentioned that if you spilt oil on yourself you would have to go home early because the MSDS requires you to clean oil off yourself immediately.
40.I joined the conversation, and mentioned that I had had a run in with the warehouse officer.
41. I stated words to the effect of:
How about that bastard down in the warehouse. I was there the other night and the wanker wouldn’t give me a Deutch plug. I sent the apprentice up but he wouldn’t give him one. So I go up and this bloke is watching the footy. I told him that I would fill in the part number but he wouldn’t get me the plug because he was pissed off that he had to stop watching the footy. I gave him a bit of a mouthful and told him I would get it out of the C Crew locker.
42. At this point, Mr Crompton looked at me and stated words to the effect of:
You’re a fucking scab.
43. I stated words to the effect of:
Yeah, right.
44.Initially I thought Mr Crompton was joking, but then he repeated the words:
You’re a fucking scab.
45.I saw the look on Mr Crompton’s face. He looked angry. I then realised that he was not joking and assumed that he had worked out that I had done a previous overtime night shift with C Crew on 12 March 2011. Because I was talking about an event that had happened on 12 March 2011, I assumed that Mr Crompton had put two and two together and worked out that I was working two overtime shifts in one panel.
46. I then stated words to the effect of:
It’s all right, because I’m not going to be here for the next panel.
47. Mr Crompton stated words to the effect of:
You know the policy you slimy bastard.
48.By this stage, Mr Crompton was standing. I estimate Mr Crompton is at least 100 kilograms and at least 6 feet tall. In my view, he is a big man.
49.I believe that Mr Smith and Mr Huther were still in the room at this point but they did not say anything.
50.I was positioned adjacent to the door to Mr King and Mr Azzopardi’s office and close to the exit of the front office.
51.Mr Crompton spoke to me with a raised voice. The volume of his voice was bordering on yelling. It was necessary for me to raise my voice for Mr Crompton to hear my side of the story. I was trying to defend myself.
52.At this point, I was trying to speak over Mr Crompton so that he could hear my explanation. I stated words to the effect of:
Look, I won’t be doing an overtime shift next swing. We are going on a cruise mate. I haven’t broken any rules.
53. Mr Crompton kept repeating words to the effect of:
You’re nothing but a slimy cunt and a scab.
54. Mr Crompton said the words “slimy cunt” and “scab” several times.
55. By this stage, Mr Crompton had moved closer towards me.
56. Mr Crompton stated words to the effect of:
Are you telling me you haven’t seen the notice? You’ve been here four years and you don’t know the policy?
57. I responded with words to the effect of:
Look, I know that it is one shift a panel but I haven’t seen the notice.
58.When Mr Crompton referred to “the notice” I understood him to be referring to a CFMEU Notice which I had seen on the wall of the crib room before, which I refer to in paragraph 19 above.
59.As I point out above, I had actually seen the Notice, but I was not going to admit that to Mr Crompton because at that point he was angry and I was concerned for my safety.
60.At this point, Mr Crompton was just out of reach and he then moved into the doorway out to the service bay. Mr Crompton stated words to the effect of:
Come on, I’ll show you. Come on, I’ll show you the policy.
61.I refused to go out and see the policy, replying with words to the effect of:
I don’t want to see it. I don’t care.
62.Mr Crompton called me a “slimy bastard” and “dishonest” several times. At this point, we were standing in the service bay office, approximately one to 1.5 metres from the door. Annexed to my affidavit and marked “MNM-4” are 2 photographs of the office where I have marked where we were standing and where I have placed my initials.
63.At this point, Mr Crompton reached across and grabbed me by the right hand shoulder of my shirt. Mr Crompton stated words to the effect of:
I’ll show you the fucking policy.
64. I stated words to the effect of:
Judd, take your fucking hands off me.
65.At this point, Mr Crompton did not let go of me and forcefully dragged me through the doorway outside into the service bay. I almost hit my head on the door frame. Mr Crompton pulled me so hard I lost my balance. Mr Crompton was still standing adjacent to the doorway and still had a hold of my shirt.
66.Mr Crompton then lent close to my ear and said in a normal voice but with an angry tone words to the effect of:
I’ll do more than put a hand on you. I’ll punch your fucking head in.
67.At this stage, Mr Crompton was still holding on to me on my right shoulder. He had hold of a big scruff of my shirt.
68. [deleted]
69. Mr Crompton then gave me a slight shove as he let go of me.
70.Mr Crompton then started walking towards the crib room. He was mumbling something. Mr Crompton then said words to the effect of:
I’ll sort this out right now, I’ll call Terry Low.
71.Terry Low (Mr Low) is the President of the Peak Downs Lodge of the CFMEU.
72. I stated words to the effect of:
Righto, I’ll call him. Give me the number.
73.Mr Crompton then read out Mr Low’s number off his phone. I tried calling Mr Low but it went to message bank. Mr Low subsequently told me later that evening that he was in union negotiations when I had tried calling him.
74.I then followed Mr Crompton into the crib room. Annexed to my affidavit and marked “MNM-5” is a photograph which shows the area outside of the service bay office and on which I have initialled and marked the direction of the crib room with the words “path to crib room”.
75.The door to the crib room was approximately three metres from the service bay area office. I was still trying to calm Mr Crompton down. I stated words to the effect of:
Just calm down. I didn’t know.
76. Mr Crompton stated words to the effect of:
You have fucking worked here for four years.
77. Mr Crompton and I then went into the crib room.
78.In the crib room, there were four tables that were bolted to the floor. Mr Crompton leaned on the table closest to the door on the left and pointed to the Notice on the crib room wall. The Notice was on the right hand wall from the entry door, between the two tables on that side. Annexed to my affidavit and marked “MNM-6” is a rough plan I have drawn of the crib room, on which I have marked where the Notice was.
79.I recall that there were four contractors sitting at the far table from the door on the right.
80.Three of those contractors were sitting with their backs to the wall opposite the door and one was sitting across from them. I did not know the contractors.
81.I then walked towards the Notice and read the Notice, which is Annexure “MNM-2”.
82. I then turned towards Mr Crompton and stated words to the effect of:
I’m wrong. I didn’t realise, I’m wrong.
83. Mr Crompton stated words to the effect of:
You’re a fucking liar.
84. I stated words to the effect of:
I’m not. I genuinely didn’t know.
85.I made that statement to Mr Crompton because I thought I could justify my interpretation of the policy and because I was going away for two weeks.
86.I thought that the CFMEU policy stated that you could work one overtime shift every 16 days. I thought it was open to interpretation that the 16 days could start from the start of your days off or start at the end of your days off to the start of your days on. That is, that the start of the panel for the purposes of interpreting the policy could be the start of your days off.
87. Mr Crompton stated words to the effect of:
You have worked here for four years. You are a fucking liar and a slimy cunt. You knew.
88.Mr Crompton then walked out of the crib room. I felt very humiliated in front of the four contractors.
89. I followed Mr Crompton out of the crib room and towards the lockers.
90.As we were approaching the end of the row of lockers, I said to Mr Crompton words to the effect of:
Look, I’ll sort this out now. I will make it right and go home now.
91. Mr Crompton stated words to the effect of:
I don’t care what you do. You are a slimy cunt.
92. I then yelled words to the effect of:
Listen here you fuckhead.
93.I then took a deep breath and stated, in a calmer voice, words to the effect of:
I don’t need this bullshit. I’m going home.
Following the incident involving Mr Crompton and Mr Moore
Mr Crompton gave evidence that at approximately 2.30 pm on 22 March 2011, he was informed that a complaint had been made about him calling Mr Moore a scab. He deposed further that he subsequently saw Mr Moore on 23 March 2011, that he had apologised to Mr Moore for yelling at him, and that Mr Moore had also apologised for calling him names.
Mr Moore deposed that following the incident he had seen a number of people, including his father Mr Neville Moore who also worked at the mine. Mr Moore gave evidence that he had asked his father to say nothing about the incident to Mr Kerry King, a supervisor of A Crew in the service bay. In particular, Mr Moore gave the following evidence:
107.I was about half way home when Dad phoned me. I was about three kilometres from the service station on the Peak Downs Highway, just outside of Moranbah. I don’t remember Dad saying much, but I recall that I stated words to the effect of:
If you tell anyone I’ll quit my job and move out of Moranbah.
108.I told him this because I did not want Dad to report the incident between Mr Crompton and me to the company. I said this to him because I was concerned about the repercussions that might follow, because I had received that treatment after an incident that I had previously been involved in at work… and I believed it would be much worse the second time around.
109. Dad stated words to the effect of:
I won’t say anything.
The incident to which Mr Moore referred was an incident around late 2009 or early 2010 involving an argument between Mr Moore and another employee. The conduct of the other employee was reported to management, and Mr Moore was asked to make a statement (which he did). The other employee was then disciplined by management. It appeared that, as a result of these events, for some six to twelve months afterwards Mr Moore was the subject of low level bullying on a regular basis (for example, his locker was glued shut, his tools were greased, and he was ostracised as a “dobber” by co-workers).
The respondent’s human resources department
At material times, the respondent’s human resources (“HR”) department at the mine comprised:
·Mr Mark Stroppiana, manager, HR;
·Mr Alan Searle, senior HR adviser, responsible for the mining department;
·Ms Joanne Pearce, senior HR adviser, responsible for the maintenance department;
·Ms Jorja Roberts, HR adviser, responsible for the coal handling processing plant and the technical services department; and
·Ms Alix Gros-Dubois, graduate HR adviser.
Mr Stroppiana had overall responsibility for the HR department. He reported directly to the HR general manager in Brisbane, Ms Sonia Lewis. He also indirectly reported to Mr Brandon Craig, the general manager and site senior executive of the mine.
Mr Stroppiana deposed that in his experience and view there was a general reluctance on the part of employees at the mine to make complaints about their co-workers. Therefore, to investigate an incident, the HR department does not require that a complaint be made directly by an affected employee. In specific circumstances, including bullying, physical violence or safety issues, the HR department’s approach is that it is obliged to investigate the matter. This is the case regardless of whether the affected person has made a complaint under the BMA Workplace Conduct Policy. If a formal complaint is made under the BMA Workplace Conduct Policy, the respondent is required to comply with the requirements of that policy. However, if no formal complaint is made, the respondent may adapt the investigation to fit the nature of the matters being investigated. The BHP Coal Pty Ltd Workplace Agreement 2007 (“Workplace Agreement”) sets out a four-step disciplinary process that the respondent must apply, except if serious misconduct has occurred.
Evidence of Ms Jorja Roberts
The primary contact by the respondent’s HR department with Mr Moore and Mr Bright was through Ms Jorja Roberts. Relevant evidence is in her affidavit affirmed 22 November 2011. Ms Roberts’ evidence is to the effect that the incident involving Mr Moore and Mr Crompton was drawn to the attention of the HR department, and that subsequently she was informed of the incident involving Mr Bright and Mr Crompton.
Incident involving Mr Crompton and Mr Moore
In summary, Ms Roberts deposed that she received a phone call at about 1.00 pm on 22 March 2011 from Mr Kerry King, a supervisor of A Crew in the service bay. Mr King said that Mr Neville Moore, Mr Moore’s father, had been in to see him at the service bay about an incident between Mr Moore and Mr Crompton. As Mr Matthew Moore left the site earlier in the day, he had told Mr Neville Moore about the incident with Mr Crompton. Mr King said he had been told that Mr Crompton had grabbed Mr Moore’s arm and said words to the effect of, “You’re a scab for doing overtime. You’re breaking the rules.” Ms Roberts decided to make further inquiries about the incident because of the physical contact and the use of the word “scab”, which she understood to have very negative connotations at the mine.
Ms Roberts went to see Mr Neville Moore at the supervisor’s office in the pre-start room to obtain a contact number for Mr Matthew Moore. She planned to contact Mr Matthew Moore for a statement in relation to the incident. Mr Neville Moore informed her that Mr Moore would be reluctant to participate in any inquiry about the incident.
Ms Roberts told Mr Stroppiana that Mr Neville Moore had told her that the incident occurred because Mr Matthew Moore had breached the union’s overtime policy by working a second shift. Mr Stroppiana gave evidence that until this conversation he had not been aware of a union overtime policy, and had never seen a document purporting to be such a policy.
Ms Roberts then had a telephone conversation with Mr Matthew Moore. Mr Moore said that the incident with Mr Crompton had just been horseplay and was not a big deal. Ms Roberts said that she had received a call from Mr King, and that the matter sounded more serious than Mr Moore was saying.
Ms Roberts met with Mr Matthew Moore at 9.30 am on 23 March 2011. Ms Roberts told Mr Moore she required him to give a statement. Mr Moore said he was concerned that he would be harassed by other employees if he gave a statement. He said, “off the record”, that he had been advised by Mr Robert Law, Vice President – Engineering of the Peak Downs Lodge, not to give a statement. Mr Moore asked how much trouble Ms Roberts would be in if he did not give a statement. Ms Roberts replied, “None, but the company has an obligation to act once we are aware of this behaviour and this behaviour is unacceptable.”
Ms Roberts said, “If it’s easier, I’ll just say I’m directing you to give a statement and you can tell people you had no choice.” Mr Moore said, “I just want to leave it. It will all be fine. I just won’t work overtime on A Crew again. I didn’t realise I was doing anything wrong. I thought because I was on annual leave next week I could work two overtime shifts and not break the union’s overtime rule.” Ms Roberts deposed that she had to ask what the union overtime rule was, as she had never heard of it. Mr Moore said that there was a poster in the service bay that explained how the union overtime rule works but, in effect, the rule was that an employee could work one overtime shift in a round.
Ms Roberts agreed that Mr Crompton could tell her about the incident “off the record.” Mr Moore recounted that Mr Crompton had grabbed him and said, “You’re a scab for breaking the rules. You are slimy and dishonest.” Off the record Mr Moore said that the way in which Mr Crompton had grabbed him had been “forceful”. On the record, Mr Moore said that his encounter with Mr Crompton had been “just a heated chat”.
Ms Roberts returned to her desk to make a detailed file note of her meeting with Mr Moore. Mr Peter Gottke called her and said that Mr Crompton had had a similar conversation in relation to overtime with a contractor. Ms Roberts then spoke with Mr Stroppiana. Mr Stroppiana told her that there was no such thing as “off the record” and that she must record everything. Ms Roberts amended her file note to include Mr Moore’s “off the record” comments.
Ms Roberts met again with Mr Matthew Moore, accompanied by Mr Gottke as his support person, at 10.30 am on 23 March 2011 in the contracts building. Ms Roberts made a diary note during this meeting. In summary, Ms Roberts deposed that in response to her questions, Mr Moore made comments to the following effect in relation to the incident with Mr Crompton:
·Mr Moore and Mr Crompton had a heated argument lasting five minutes in the office about the overtime issue. Mr Moore had not understood the union overtime policy, which states that an employee can work one overtime shift per round over 16 days. Mr Moore did his first overtime shift on his two-day break and then the second one on 22 March 2011, meaning he was outside the overtime policy by one day.
·Mr Moore was in the front office of the service bay. He was talking about something that had happened on C Crew, and Mr Crompton realised that Mr Moore had worked an additional overtime shift. Mr David Smith and Mr John Huther were also in the room, but left as soon as the argument began.
·Mr Moore told Mr Crompton that he had not been aware of the union overtime policy. He did not want to upset the union and was going to go home. Mr Moore went to see Mr King. He told Mr King that he did not realise he had broken the overtime rule so was going to go home.
·Mr Moore went home because he was upset that Mr Crompton had made a big deal of the overtime rule. Mr Moore did not think it was Mr Crompton’s place to say anything to him. Instead, Mr Moore should have been approached by an area representative of the applicant. As a shift representative, Mr Crompton should have approached Mr Moore’s supervisor, rather than Mr Moore directly.
·Mr Moore saw his father, Mr Neville Moore, as he was leaving the site. Mr Matthew Moore said that he had had an argument with Mr Crompton about the union overtime policy and was going home. After he left the mine Mr Moore called Mr Law and Mr Low of the Lodge, asking them to tell Mr Crompton to “pull his head in”.
·In response to Ms Roberts’ question, “Kerry said that Judd grabbed you. Did this happen?”, Mr Moore said it did not happen.
·Ms Roberts asked Mr Moore why Mr Crompton called him a scab. Mr Moore said, “Because I was going against union policy. I don’t want to be known as a scab because it will get scratched into my car and garden. This is not a big enough incident to worry about. Last time I copped repercussions and I don’t want to go through that again. It is a union issue and the union should deal with it. The union delegate is on a different crew. I feel safe being at work. I’m not worried because I’m not putting a statement in, it’s only because I have to.” He said that last time people had stopped talking to him.
·Ms Roberts asked, “What did Rob Law tell you about not giving a statement?” Mr Moore said, “Rob did not tell me not to give a statement. He told me just to be careful. Things like this happen all the time.”
Following the meeting Ms Roberts prepared a typed statement for Mr Moore based on what he had said in the meeting. She sent that statement to Mr Gottke and requested that he ask Mr Moore to sign it. Mr Moore wanted the following sentences removed from his statement as he felt they were “not needed”:
·I was upset being called a Scab as I did not want to be known as this around site as it will get scratched into my car or lawn.
·Rob Law did not tell me to not give a statement but just be careful with what I said. Things like this happen al [sic] the time.
Mr Gottke informed Ms Roberts that Mr Moore would not sign the statement. Mr Gottke had said he would be signing in Mr Moore’s place. The statement Mr Gottke signed read as follows:
At 12.30pm on the 22nd of March I had a heated argument in the service bay in the front office over an overtime issue and the amount of overtime I had done in the last panel. I didn’t understand the policy and I was outside the policy by one day. It is the union overtime policy. The policy states that you can work one shift per round over 16 days. Judd started the argument by calling me a ‘scab’. Judd said that I was a Scab for breaking the overtime rules. A scab is someone who goes against union policy. I am a member of the CFMEU. Officially I was wrong but because I am going on holidays I did not think that one extra day would matter considering I will not work any overtime next round.
I did my first overtime on my two day brake [sic] (I worked on C Crew night shift around the 12th of March) and then the second one on the 22nd March 2011. I was out by one day in the panel. I am not a repeat offender for this. I did it once before within the first three months when I first moved to PDM, I have not done it again. I had been told by a supervisor before that it was ok to do this however Judd thinks that this rule is set in stone but its [sic] grey in other areas of PDM.
I was talking about something that happened the other day on C Crew and Judd picked up that I had worked two overtime shifts, currently on my second one. I was in the front office in the Service bay and Kerry King was in the main office with a contractor. David Smith (Fitter – Service Bay A Crew) and John Huther (Contractor for Down Under) were in the office and cleared out straight away when Judd started. Judd was sitting down at his computer and I was standing at the door into the back office.
I said to Judd that I was not aware that I made this error and I did not want to upset the union and I was going home. I went and saw Kerry King and said that I did not realise I had broken the overtime rules and I was going to go home and I signed off for the hours that I worked. I was upset because Judd had made a big deal of it. I do not think it was his place to carry on like this and an area representative should have come and spoken to me about the issue or seen my supervisor, he should not have approached me. I am unsure if Judd has been elected as a delegate for the service bay. Judd was fine until he put the two overtime shifts together, at the beginning I thought he was having a joke with me. I tried to calm him down but it was easier to just leave it and go home.
I told Kerry that I had an overtime issue with Judd and I didn’t realise I broke the rule so I was going home at 1:05pm.
I saw dad (Neville Moore) and he asked what was wrong and I explained that I had an argument over the union policy and I was going home.
I have discussed what happened yesterday with Terry Low and Rob Law asked them to speak with Judd to pull his head in. They said that they will have a talk to him. I have also spoken with Graeme Azzopardi and Peter Gottke.
No Judd did not grab me, I don’t know where this would come from, Kerry was a third party and not there at the time.
I didn’t want to give this statement because it is not a big enough incident to worry about. After the repercussion from the last case with the Leeroy I didn’t want to go through this again. It is also a union issue and the union should deal with it. I will not see Judd as well as he is on a different crew. I feel safe being at work and I am not the one putting in a statement I am going doing this because I have to.
The repercussions from last time were that some people in my crew and the whole of PDM stopped talking to me and it latest [sic] a couple of months. Things are just starting to get back to normal and I don’t want to upset the apple cart.
Subsequently Ms Roberts met with Mr King in the HR office at the mine on 23 March 2011. Ms Roberts took notes during the meeting, and then prepared a statement, which Mr King later signed. In the statement Mr King said:
On the 22nd of March I walked into the office and saw Matthew Moore was visibly upset and filling in his time sheet. I asked him what was wrong and Matt replied saying that I am over the overtime limit and I am going home.
Matt also said that he was going to speak with Terry Lowe about it. I said that was a good idea. I did not think much more of it as it was a busy day.
10 minutes later Nev then came in to see me and he was upset, Nev said that Judd Crompton had grabbed Matthew by the arm and called him a ‘Scab’ for doing overtime. I told Nev that I was going to tell my superintendent and HR about this behaviour and that it was unacceptable. Nev was not responsive about this, he did not say to do it or not to.
Just as I was finishing up for the day John Huther (contractor electrician for Down Under) came to see me and asked if I have had a bad day, John then said I heard what was said to ‘that bloke’ and ‘it’s just not right.’ He asked me what was going on and I said that I cannot talk about it. John then said that he had to leave the office when he heard it start as he did not want to get involved.
Nev called near the end of the shift and expressed that he was concerned that HR did not support Matt through this last time and that Matt was not going to pursue this any further.
Incident involving Mr Crompton and Mr Bright
Ms Roberts deposed that she met with Mr Bright on 24 March 2011 to discuss the incidents between Mr Crompton and Mr Bright. Ms Roberts’ account of that meeting was as follows:
78. An exchange took place with words to the following effect:
MeDarren, what can you tell me about your dealings with Judd Crompton?
Mr BrightI was leaving the front office of the service bay on 22 March. I was walking to my next job. David Smith and Judd were standing outside the office with their arms crossed and they wouldn’t move. When I moved the other way, they moved.
Me When did this happen?
Mr BrightI can’t remember the exact time. This happened about 20 minutes after Matty had left.
Me Why would they have done that?
Mr BrightI think it might have been because I was in the office with a supervisor. I think that Judd thought I was going to dob. I was actually only there to get my next job.
79.This was the first time that I had heard about this incident. I was concerned that this alleged incident may have related back to the Matthew Moore incident.
80.I asked Mr Bright if he could tell me about any other incidents that he had been involved in with Mr Crompton. Mr Bright stated to the effect:
Mr BrightOn Saturday three weeks ago I was working during my break on the 24H in the workshop. Judd came up and asked what I was doing and how many overtime days I was here. I said two. I said I’m in here for 2 days in this workshop and I’ll be here today and tomorrow.
Judd said I couldn’t come in the following day because I could only do one overtime shift in a round.
I didn’t think much of it because I knew that it wasn’t a BMA policy but a union policy.
Investigation by the respondent
On 30 March 2011, the respondent informed Mr Crompton (by letter signed by Mr Aaron Daniel, the maintenance superintendent) that he was being stood down on full pay pending an investigation into his alleged misconduct. The letter referred to three incidents. Further details of these three incidents were provided in subsequent correspondence from the respondent, and referred to:
1.An incident in which Mr Crompton allegedly spoke to Mr Darren Bright, a contractor on site from Southern Cross Electrical, to instruct Mr Bright that he could not attend for work the next day to work a second overtime shift as the “union overtime policy” requires that employees and contractors can only work one overtime shift in a round.
2.The incident involving Mr Matthew Moore on 22 March 2011 in the front office of the service bay where Mr Crompton “allegedly verbally abused another employee Matt Moore for working a second overtime shift in a 16 day roster cycle and you call [sic] Matt Moore a scab for working the second shift within the round in breach of a ‘union overtime policy’. It is further alleged that during the course of the verbal altercation you grabbed Matt Moore on the shoulder and arm in a forceful manner.”
3.On 22 March 2011 outside of the service bay office “you allegedly together with another employee David Smith harassed Mr Darren Bright by blocking his path and deliberately moved in front of him as he tried to walk away.”
The respondent also said that the “union overtime policy” amounted to unprotected industrial action.
On 31 March 2011, Mr Crompton attended a disciplinary meeting with Mr Stroppiana, Ms Roberts, Mr Daniel, Mr Law and Mr Scott Leggett (secretary of the Peak Downs Lodge) in relation to the allegations of misconduct against him.
On 12 April 2011, Mr Crompton attended a further meeting with Mr Stroppiana, Ms Roberts, Mr Daniel, Mr Law and Mr Leggett. Mr Stroppiana told Mr Crompton that the respondent had finished its investigation and concluded that he was guilty of serious misconduct. Mr Stroppiana handed Mr Crompton a letter making reference to the three incidents, and requested that he show cause why his employment with the respondent should not be terminated. The letter stated:
Dear Judd,
Re: Show Cause Notice
I refer to our previous correspondence dated 30 March 2011.
We have now finalised our investigation into the three matters advised to you in our previous correspondence.
The investigation findings are as below:
Ÿ Approximately 3 weeks ago you spoke to a contractor on site from Southern Cross Electrical and instructed them that they could not attend for work the next day to work a second overtime shift as a “union overtime policy” requires that employees and contractors can only work one overtime shift in a round.
Ÿ On 22nd March 2011 in the front office of the Service Bay you harassed and intimidated another employee, Matt Moore, for working a second overtime shift in breach of a “union overtime policy” and that you called Matt Moore a scab. The investigation also concluded that you grabbed Matt Moore on the shoulder and arm in a forceful manner.
Ÿ On the 22nd March 2011 outside of the Service Bay office you together with another employee, David Smith, harassed a Southern Cross Electrical contractor by blocking his path by deliberately moving in front of him as he tried to walk away.
Based upon the findings of the investigation, we believe your behaviour constitutes serious misconduct. Accordingly, we invite you to show cause as to why your employment should not be terminated in light of the above findings.
We require your written response by COB on Thursday, 14th April 2011. Upon receipt of your written response we will make a final decision in respect of your employment. If you do not provide a response we will proceed to make a decision based on the material before us.
Yours faithfully,
Gary Morgan
Acting Maintenance Manager
PEAK DOWNS MINEOn 20 April 2011 Mr Crompton wrote to the respondent requesting further details of the alleged incidents, in particular dates, times and places of relevant events. Further details were provided by the respondent on 29 April 2011. In its letter dated 29 April 2011, the respondent noted:
We confirm that no formal complaint has been made against you. Notwithstanding this, the Company has become aware of the allegations and is bound to investigate them and has done so.
On 12 May 2011 Mr Crompton attended a meeting with Mr Ian Harris, mechanical maintenance manager, Mr Stroppiana, Ms Roberts, Mr Law and Mr Leggett. Mr Crompton was informed that his employment was to be terminated immediately.
Evidence of Mr Craig
The applicant contends that the actual decision-maker in respect of the termination of Mr Crompton’s employment was the mine manager, Mr Brandon Craig. In his affidavit affirmed 23 November 2011, Mr Craig deposes, in summary:
·He did not know who Mr Crompton was prior to the investigation into Mr Crompton’s alleged conduct in March 2011, and was informed of the investigation by Mr Stroppiana. Mr Craig himself was not involved in the investigation.
·On 28 March 2011 he received an email attaching a document of the applicant union which stated, inter alia, “There is a limitation placed on the amount of overtime you can work at Peak Downs”. He had not previously known of the view of the applicant concerning overtime.
·He met with Mr Stroppiana, Mr Harris and Ms Roberts on 30 March 2011, where they informed him of the status of the investigation into the alleged conduct of Mr Crompton concerning Mr Moore and Mr Bright. At that meeting Mr Stroppiana said words to the effect of:
The evidence of the investigation to date supports the allegation that there was an altercation in the service bay between Mr Crompton and Mr Moore and that Mr Crompton forcibly dragged Mr Moore at the shoulder, taken out of the service bay office [sic] and that Mr Crompton called him a scab for not complying with the overtime policy.
·He was also informed by Mr Stroppiana of two other incidents, one of which was where Mr Crompton had allegedly blocked the path of Mr Bright.
·He endorsed the recommendation of the investigation team that Mr Crompton be stood aside on full pay from normal duties pending the investigation because:
othe incident involving Mr Moore would amount to serious misconduct involving an allegation of physical and verbal abuse by Mr Crompton against another employee;
othe use of the word “scab” is totally unacceptable because it has a particular connotation at a coal mine – specifically that that person will be targeted for mistreatment by other workers at the mine;
ohe believed there was a likelihood that Mr Bright would be harassed and/or intimidated by Mr Crompton because he worked with Mr Crompton.
·Following his endorsement of the recommendation of the investigation team he was kept informed of the progress of the investigation in general terms by Mr Stroppiana and Ms Roberts, however he did not take an active role.
·On 11 April 2011 he attended a meeting of human resources and supervisory staff at which Mr Stroppiana, Ms Roberts and Mr Harris could present their views and conclusions concerning the investigation. Mr Craig considered that there were sufficient grounds to issue a show cause notice to Mr Crompton, because Mr Craig was satisfied that:
othere was an argument between Mr Moore and Mr Crompton that involved physical contact and verbal abuse of Mr Moore by Mr Crompton;
othere were inconsistencies between Mr Crompton’s version of events and the witness statements provided by other witnesses;
oMr Moore was forcibly taken by Mr Crompton to be shown the union overtime policy;
o Mr Moore went home early; and
o Mr Moore had told his father about the incident immediately after the event.·He was the decision-maker in respect of whether a show cause notice should be issued, and directed that it be done.
·He subsequently read the unsigned statement of Mr Moore and accepted that it accurately depicted relevant events. He was not persuaded to alter his views by additional information provided by witnesses identified by Mr Crompton.
·He considered that the conduct of Mr Crompton was totally unacceptable in that he considered that Mr Crompton:
o had physically abused Mr Moore;
ohad verbally abused Mr Moore, including calling him on several occasions a “slimy cunt” and a “scab”;
ohad purported to direct other workers – in particular Mr Bright – as to when they could and could not work; and
o had intimidated Mr Bright on 22 March 2011.
·He denied that his decisions were motivated by Mr Crompton acting as an officer and member of the applicant union in speaking to Mr Moore or Mr Bright about overtime.
THE CLAIM AND DEFENCE
In its application and statement of claim filed 18 July 2011 the applicant sought declaratory relief related to contraventions of s 340 and s 346 of the Fair Work Act 2009 (Cth). At the hearing however, the applicant did not press the alleged contraventions of s 340.
In summary, the applicant claims that the respondent dismissed Mr Crompton, and/or injured Mr Crompton in his employment and/or altered his position to his prejudice, because:
·The Workplace Agreement provides that the respondent may require employees to work reasonable overtime in accordance with prevailing arrangements.
·The prevailing arrangements at the mine are that an overtime list coordinated by the applicant is used to allocate the overtime required by the respondent. By virtue of his position with the applicant union, Mr Crompton had a role or responsibility in coordinating that list.
·In his capacity as an officer of the applicant, Mr Crompton had conversations with Mr Bright and Mr Moore concerning the amount of overtime Mr Bright and Mr Moore had been working.
·Mr Crompton advanced the views, claims or interests of the applicant union and acted in accordance with his role or responsibility under a workplace agreement.
In its amended defence filed 3 April 2012, the respondent claims, inter alia:
·On or about 5 March 2011 Mr Crompton instructed Mr Bright not to report for work the following day on a second overtime shift. Mr Crompton had no authority to issue such an instruction, and this constituted serious misconduct; and
·On 22 March 2011 Mr Crompton seriously verbally and physically abused Mr Moore, including threatening to punch him.
The respondent further denied that Mr Crompton had a role or responsibility under a workplace agreement, and denied that it stood Mr Crompton down for acting in accordance with that alleged role.
RELEVANT LEGISLATION
In this proceeding, at material times the relevant provisions of the Act were as follows:
12 The Dictionary
In this Act:
…
officer, of an industrial association, means:
(a) an official of the association; or
(b) a delegate or other representative of the association.…
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4 1).
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4 1).
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
…
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
346 Protection
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Note: This section is a civil remedy provision (see Part 4 1).
347 Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a)becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) …
(ii) …
(iii)encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) …
(v)represent or advance the views, claims or interests of an industrial association; or
(vi) …
(vii) …
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
SUBMISSIONS OF THE PARTIES
In summary, the applicant contended as follows:
·The respondent contravened s 346 of the Act by taking adverse action in the form of the stand down, investigation and dismissal of Mr Crompton because he engaged in the industrial activity of discussing overtime with Mr Bright and Mr Moore.
·That this is so was clear from the stand down letter and the show cause letter given by the respondent to Mr Crompton, where the respondent’s allegations focussed on the discussions Mr Crompton had with Mr Bright and Mr Moore concerning overtime. Mr Craig acknowledged that Mr Crompton’s advancement of what the respondent characterised as the “union’s overtime policy” was central to the allegations and the decision-making process made in relation to the allegations that resulted in Mr Crompton being stood down, investigated and dismissed.
·Mr Crompton’s account of the events involving Mr Bright is to be preferred to that of Mr Bright, particularly in relation to the alleged incident on 22 March 2011. In respect of this incident, Mr Crompton’s version of events was supported by Mr David Smith.
·In relation to the incident involving Mr Moore:
oit was not uncommon for employees at the mine to have heated discussions;
oMr Moore’s initial statements to the respondent’s human resources staff did not suggest that Mr Crompton was dragged through the door or threatened with assault;
oMr Crompton is a more reliable witness than Mr Moore because, inter alia:
§there are major inconsistencies between the version of events given by Mr Moore to Ms Roberts and Mr Gottke, and Mr Moore’s evidence at trial;
§at the hearing Mr Moore gave varying versions of the account he gave to his father of the incident;
§Mr Moore’s evidence conflicts with that of Ms Roberts in relation to what he had told her about the incident with Mr Crompton;
§Mr Moore gave evidence that he had told Ms Roberts that Mr Robert Law had told him not to make a statement. This was not the case, and impugns the reliability of all his statements to Ms Roberts;
§Mr Moore was clearly motivated by the desire to see that Mr Crompton lost his job (transcript 6 July 2012 p 318 ll 1-3);
§the evidence clearly demonstrates that an offer by the respondent to assist Mr Moore to relocate from Moranbah and finalise a settlement with him constituted a “reward” to Mr Moore to make a signed statement supporting the respondent’s position.
·The effective decision-maker in relation to the actions taken by the respondent was Mr Brandon Craig, who rubber-stamped the recommendations of Mr Stroppiana. Mr Craig’s evidence that he was motivated to take relevant actions by a view that there were allegations of serious misconduct against Mr Crompton lacks credibility because:
oin relation to the incident of 5 March 2011 involving Mr Bright, it cannot be credibly contended that Mr Crompton engaged in serious misconduct by saying to Mr Bright, “You can’t come in tomorrow”, in the context in which the words were used;
oin relation to the incident of 22 March 2011 involving Mr Moore, Mr Craig cannot have made a decision to either stand down Mr Crompton or require him to show cause why he should not be dismissed on the basis that Mr Crompton “forcibly dragged” Mr Moore, because the allegation that Mr Crompton had forcibly dragged Mr Moore only came to light in Mr Moore’s unsigned statement which post-dated both the time when Mr Crompton was stood down and the requirement that he show cause. Further, there was nothing to substantiate Mr Craig’s interpretation of the word “scab”, which in its ordinary meaning simply means that Mr Moore was going against union policy;
oin relation to the other incident involving Mr Bright on 22 March 2011, it cannot be credibly put by the respondent that Mr Crompton had committed serious misconduct by harassing Mr Bright by blocking his path and deliberately moving in front of him.
·The respondent has taken adverse action against Mr Crompton in dismissing him, standing him down, and subjecting him to an investigation.
·The reasons the respondent took adverse action against Mr Crompton included that:
oMr Crompton advanced the views, claims or interests of the applicant union; and
oMr Crompton acted as an officer or member of the applicant union.
In summary, the respondent submitted:
·Mr Crompton engaged in serious misconduct.
·Throughout the investigation conducted by the respondent’s human resources team, and during the proceedings, Mr Crompton’s evidence was unreliable and largely untruthful.
·Following its investigation, there was a legitimate basis for the respondent to conclude that Mr Crompton had engaged in serious misconduct upon which it was entitled to act.
·Membership or a position with the applicant union did not authorise Mr Crompton to engage in the conduct complained of. To that extent, no reverse onus applied pursuant to s 361 of the Act.
·Even were the reverse onus operative, the respondent has discharged it because the reason for the respondent’s conduct was in no way attributable to Mr Crompton acting in accordance with any role or responsibility under a workplace law, or (inter alia) advancing the views of the applicant union.
CONSIDERATION
As I noted earlier in this judgment, the applicant relied upon s 346 of the Act which provides that (inter alia) an employer must not take adverse action against another person because the other person was an officer or member of an industrial association, or because the other person engaged in industrial activity (including representing or advancing the views, claims or interests of an industrial association).
As a general proposition the applicant in proceedings of this nature bears the onus of proving the relevant employee had been such an officer or member and/or had engaged in industrial activity. Once these factors have been established, the next question is whether the employee has been the subject of adverse action by the employer. If the answer to that question is in the affirmative, the onus of proof shifts to the employer in respect of the reason for the adverse action taken against the employee. The employer has acted in breach of the Act if the reason for the adverse action contravenes the Act.
In my view this application cannot succeed.
First, in my view the applicant’s claim that Mr Crompton had engaged in industrial activity within the meaning of s 346 and s 347 of the Act is dubious at best. This is because there is some confusion in the applicant’s case as to whether Mr Crompton was indeed seeking to “advance the views, claims or interests” of the union. Mr Crompton in his evidence claimed that, in respect of the incident involving Mr Bright on 5 March 2011 and Mr Moore on 22 March 2011, he was referring both men to the BMA fatigue policy (in the case of Mr Moore, this referral was through reference to the union policy). However I am unable to see how Mr Crompton could be said to represent the union’s views if he was, at material times, relying on the respondent’s policy. And indeed, in one respect this is the essence of the respondent’s case – namely that Mr Crompton had purported to assume authority to enforce the respondent’s rules, when he had no authority to do so.
Second, for reasons to which I will shortly turn, I am satisfied that the incidents of 5 March 2011 and 22 March 2011 occurred in the manner described by Mr Bright and Mr Moore. Accordingly, I am satisfied that Mr Crompton did direct both workers not to attend work, and that he had been physically and verbally abusive of Mr Moore. To that extent, I consider there is substance to the respondent’s submission that, even were Mr Crompton acting in the capacity of a union member or officer in engaging with both co-workers, neither role extended to the conduct Mr Crompton exhibited. It follows that there is merit in the respondent’s submission that the applicant is unable to invoke the protection of s 346 of the Act in this proceeding.
However, even assuming that the actions of the respondent against Mr Crompton constituted adverse action and the respondent bears the onus of proving that relevant actions were not for reasons prohibited by the Act, the application cannot succeed for the fundamental reason that I am satisfied that the respondent has discharged that onus. In my view, the adverse actions upon which the applicant relies were taken by the respondent because the relevant decision-makers in the respondent were satisfied that Mr Crompton had engaged in serious misconduct by:
·improperly directing co-workers when to work or not work; and
·engaging in physical and verbal abuse of a co-worker.
I make this finding in light of my views concerning:
·the credibility of key witnesses to Mr Crompton’s conduct on 5 March 2011 and 22 March 2011. In summary, I prefer the evidence of Mr Moore and Mr Bright to that of Mr Crompton; and
·the credibility of key witnesses for the respondent, in particular Mr Craig and Ms Roberts in respect of the reasons for the adverse action taken against Mr Crompton.
Credibility of key witnesses concerning Mr Crompton’s conduct on 5 March 2011 and 22 March 2011
In my view the evidence of Mr Moore and Mr Bright was more credible than that of Mr Crompton in respect of events on these dates.
First, in my view Mr Crompton was somewhat unresponsive as a witness at the hearing. In many instances his response to a question by Counsel for the respondent during cross-examination was simply, “I rely on my affidavit”, or words to that effect (for example, transcript 3 July 2012 p 22 ll 38-40, p 24 ll 18-19, p 32 ll 18-19, p 44 ll 26-28, p 45 l 4, p 47 ll 12-14, p 50 ll 44-45). While an answer in this form is not, of itself, objectionable, continued such responses suggest a reluctance to be candid, and an unwillingness to depart from carefully prepared written evidence in order to answer questions.
Second, at the hearing Mr Crompton in a number of instances sought to distance himself from the contents of an unsigned statement made on or about 5 May 2011, provided by him to the respondent, and instead insisted that only his affidavit prepared in the proceeding was accurate (for example, transcript 3 July 2012 p 50 ll 1-47). This evidence was particularly important in light of the apparent direction given by Mr Crompton to Mr Moore during the incident on 22 March 2011, which Mr Crompton in his unsigned statement appeared to admit, but later in his affidavit resiled from.
While it is neither uncommon nor unreasonable for witnesses to review the accuracy of their evidence, nonetheless in respect of the evidence in Mr Crompton’s unsigned statement I note that:
·Mr Crompton was assisted by his solicitor in preparing his initial statement. To that extent it is difficult to see that Mr Crompton, in preparing that statement, could in any way have been disadvantaged or misled in respect of the contents of that statement.
·That statement was prepared comparatively contemporaneously with the events in question, whereas Mr Crompton’s first affidavit was not sworn until several months later on 27 October 2011. It is difficult to accept that Mr Crompton’s recollection of events would have improved over the passage of several months, such that his later affidavit was “more accurate” than his initial statement.
Third, Mr Crompton’s evidence that, during the incident with Mr Moore, he was actually referring Mr Moore to the BMA fatigue policy rather than the union policy is implausible in light of Mr Crompton’s own admission that he told Mr Moore that it was “a scabby act to work excessive overtime.” In my view a much more plausible explanation for Mr Crompton to refer to Mr Moore in such derogatory terms was because Mr Moore had breached union policies, not company policies. This evidence shows a disingenuousness in Mr Crompton’s evidence, to suit the case of the applicant.
Fourth, as between Mr Bright and Mr Crompton I consider Mr Bright’s evidence more credible than Mr Crompton’s because:
·Mr Bright’s evidence in respect of the events of 22 March 2011 supports a finding of a pattern of aggressive conduct – both verbal and physical conduct – by Mr Crompton towards others who act in a way of which Mr Crompton does not approve. This pattern, although evidenced in only the few instances detailed in this proceeding, is nonetheless consistent from evidence of Mr Bright and Mr Moore.
·I can identify no plausible reason why Mr Bright, an outsider and non-union member, would invent the version of events involving Mr Crompton and himself on 5 March 2011 and 22 March 2011.
Fifth, in relation to the incident involving Mr Bright and Mr Crompton on 22 March 2011 I note that evidence in support of Mr Crompton’s version of events was given by Mr David Smith. However I did not find Mr Smith’s evidence helpful. The witness seemed vague on key points, for example he claimed that Mr Crompton and Mr Moore were “having a discussion about overtime” but did not consider that the discussion was “heated” (transcript 4 July 2011 p 122 ll 18-20). (I note that Mr Crompton conceded that the argument between himself and Mr Moore was “heated” (transcript 3 July 2012 p 27 ll 30-47).) I am not persuaded that Mr Smith was candid in relation to his role in the events of 22 March 2011 alleged by Mr Bright.
Finally, as between Mr Moore and Mr Crompton I consider Mr Moore’s evidence more credible than Mr Crompton’s because:
·It is very clear that Mr Moore’s co-operation with the respondent in relation to the incident of 22 March 2011 was reluctant. As Mr Moore detailed in his evidence, he had had previous experience of isolation and ostracism in the workplace by co-workers following circumstances where Mr Moore had made a complaint about another co-worker. It was clear that Mr Moore was fearful of repercussions from co-workers if they perceived him as in any way assisting the respondent to discipline Mr Crompton (for example, transcript 6 July 2012 p 303 ll 20-21, ll 42-44, p 304 ll 32-46, p 305 ll 1-5). It was primarily for this reason that, initially, Mr Moore was only prepared to provide “off the record” comments to Ms Roberts, and did not want management to take further the matter of the incident of 22 March 2011. I note, in particular, Mr Moore’s evidence that he “didn’t want to upset the union when [he] gave the first couple of statements” (transcript 6 July 2012 p 309 l 18). It follows in my view that, if anything, during the initial stages of speaking with the respondent’s human resources team, Mr Moore understated the nature of events to which the respondent referred in its decision-making process.
·I am not satisfied that, following the meeting between Mr Moore and the respondent’s human resources staff on 5 April 2011, Mr Moore provided a statement which “suited” the respondent because he was in any way “paid” for making such a statement. I accept Mr Moore’s explanation that he finally provided more detailed information to the respondent in relation to the events of 22 March 2011 because it was clear to him that he would be unable to return to Moranbah, and that he needed to move forward with his life. In particular, I note his evidence as follows:
Right?---It was never about the money.
And what do you mean, “It was never about the money”?---Well, it was never about the money.
You didn’t want money?---I didn’t know what I wanted. All I knew is I had a family to support and I didn’t know which way to turn.
Well, you needed money for that, didn’t you?---Well, everybody needs a way of supporting their family.
Yes. So it was about money, in part?---In part.
Yes?---But there was still options available at this point. I still could have transferred to another BHP division at this point.
Yes. But - - -
HER HONOUR: So, sir, if I can – so what was it about?---Basically, it was about trying to find the best way to go, whether we wanted to transfer, whether we wanted to – where we wanted to go and how we wanted to go about it, your Honour. My wife’s family all resides in Moranbah. I was born in Moranbah. To have the door closed to the mining industry because of an incident that is not my fault is – I didn’t know which way to turn. I was trying to get sufficient legal advice; I was trying to find out how exactly to run with all of this and, to be perfectly honest, I wasn’t dealing with it very well at all.
(Transcript 6 July 2012 p 306 l 26 - p 307 l 4)·There is ample evidence to support the finding that Mr Moore was distressed from the altercation involving Mr Crompton on 22 March 2011, and that he had left the workplace in that state. I note, for example, evidence of Mr Bright and Mr Neville Moore, and the material collected by Ms Roberts during her investigation.
·I can identify no plausible reason why Mr Moore would have provided false information to the respondent for the purposes of their investigation, or inaccurate evidence to the Court. I am not persuaded that Mr Moore was motivated by revenge against Mr Crompton, as suggested by the applicant. Indeed, as the respondent submitted, Mr Moore had nothing to gain, and everything to lose, by making the allegations that he made against Mr Crompton.
·I am not persuaded from viewing Mr Moore in the witness box that Mr Crompton simply speaking to Mr Moore about overtime would have caused Mr Moore to leave work in a distressed state on 22 March 2011. I consider that it is more probable than not that Mr Crompton conducted himself in precisely the manner alleged by Mr Moore, including both verbally and physically.
·I am not persuaded that Mr Moore’s evidence lacked credibility because his statements to Ms Roberts concerning Mr Robert Law’s advice changed. It is clear that, when Mr Moore spoke with Mr Law, Mr Moore did not wish to engage with HR in relation to the incident and did not wish to make a statement. Mr Moore certainly did not insist in his evidence to the Court that Mr Law had instructed him not to give HR a statement – merely that Mr Law had informed him that he was not obliged to make a statement (affidavit of Matthew Moore paras 128-132, transcript 6 July 2012 pp 293-294). I consider that the submissions of the applicant in relation to this issue and the credibility of Mr Moore are not persuasive.
Credibility of key witnesses for the respondent concerning the reasons for the adverse action taken against Mr Crompton
The evidence before me supports findings that the ultimate decision-maker in the respondent in taking adverse action against Mr Crompton was Mr Craig. Although Mr Craig deposed that he did not become involved in the matter until after the investigation had been commenced by Mr Stroppiana (affidavit of Brandon Craig paras 9-10), I note Mr Stroppiana’s evidence that he required the endorsement of Mr Craig to stand down Mr Crompton on full pay (affidavit of Mark Stroppiana para 70) and that Mr Craig agreed with the approach recommended by Mr Stroppiana. It is clear that Mr Stroppiana played a significant role however in making relevant recommendations to Mr Craig.
As I observed earlier in this judgment, I am satisfied that the reason adverse action was taken by the respondent against Mr Crompton was that:
·Mr Stroppiana and Mr Craig believed there were strong grounds to believe that Mr Crompton had engaged in serious misconduct; and
·in the final analysis Mr Craig was satisfied that Mr Crompton had engaged in serious misconduct.
I have formed this view for the following reasons.
First, as was explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32 by French CJ and Crennan J it is not appropriate to consider the “reason” for adverse action of the relevant decision-maker in terms of an objective enquiry, including any “unconscious reason” of the decision-maker (at [44]). The question of why the decision-maker has acted is one of fact. As their Honours observed at [45]:
… direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(cf Gummow and Hayne JJ at [129], Heydon J at [146]).
Second, I found Mr Craig, Mr Stroppiana and Ms Roberts to be credible witnesses. In particular I note the investigation of the incidents involving Mr Crompton by Ms Roberts, including the detailed records of interviews and events made by her. I found her evidence particularly persuasive.
I accept as reliable the evidence of Mr Craig as to why he took relevant decisions in relation to the standing down of Mr Crompton, the issue of the show cause letter, and the dismissal of Mr Crompton. I accept the evidence of Mr Stroppiana, in reporting to Mr Craig, that it was a combination of the three events which – in the view of the HR team investigating the incidents and reporting to Mr Craig – constituted serious misconduct within the meaning of the BMA Workplace Conduct Policy. In particular I note the following oral evidence of Mr Stroppiana:
So it was a combination of these events which caused you to characterise conduct as serious misconduct; is that correct?---That’s right.
So it wasn’t any individual thing, it was all three, or - it was aspects of some of the individual allegations? There’s a reason - - -?---Yes.
And the reason I ask this is because wanting to terminate somebody is a very serious matter, and I understand you would appreciate that, being a human resources manager. I’m just trying to understand how you got to that?---We got to that based upon the three incidents, although it is fair to say that the second incident was probably – well, was the incident which, for us, was the most serious of the three.
The more [sic] - incident?---Yes. But all – we took into account the whole conduct involving the three incidents, but the second involving the interaction with Matt Moore was the most serious.
(Transcript 5 July 2012 p 188 ll 33-47)This evidence is, in my view, supported by evidence of Mr Craig (transcript 5 July 2012 p 231 ll 9-27) where Mr Craig stated, in summary:
·the incident of 5 March 2011 where Mr Crompton had instructed Mr Bright not to attend work was serious misconduct;
·the incident of 22 March 2011 where Mr Crompton physically and verbally abused Mr Moore was serious misconduct; and
·the incident of 22 March 2011 involving Mr Crompton and Mr Bright, standing on its own, did not constitute serious misconduct.
In my view, this evidence of Mr Stroppiana and Mr Craig is credible. I am not persuaded that the finding of serious misconduct by the respondent resulting in the decision to terminate the employment of Mr Crompton was “trumped up” (as suggested by the applicant) because “in reality” the respondent wished to dismiss Mr Crompton for engaging in industrial activity at the mine.
Third, I am satisfied that both Mr Stroppiana and Mr Craig were concerned about the level of physical and verbal aggression which it appeared that Mr Crompton had displayed towards Mr Moore. In particular, I note the following evidence of Mr Craig:
I see?---So on 23 March, in relation to Mr Crompton, when I first learnt there was to be an investigation, it was made clear to me at that stage already that Mr Crompton had allegedly grabbed Mr Moore by either the collar of his shirt or his sleeve, and had been physically manhandled through to the crib room to view the union overtime policy document.
And you learnt that from Mr Stroppiana on the 23rd, did you?---That’s correct.
You don’t mention that in your affidavit when you deal with that conversation at paragraphs 8 and 9?---That’s correct. I did not mention that in the affidavit.
And that’s because Mr Stroppiana never mentioned it?---No, I don’t agree.
You’re quite firm that he mentioned it to you on 23 March?---Very firm.
Very firm?---Very firm
He mentioned dragging?---Yes.
Or being manhandled - - -?---That’s correct.
- - - all the way from the service bay office and out the door?---That’s correct.
And did he – so was it then that he – was that when you got that information, or was that repeated by Mr Stroppiana on the 30th?---At each meeting we’ve discussed the actual conduct of Mr Crompton in this event.
Well, I understand that, but I want to know whether this forcible dragging through the door, or manhandling through the door, was discussed on the 30th when Mr Stroppiana set out to you what the allegation entailed in the speaker-phone conversation?---Yes.
I suggest that your - are you very firm about that, too?---I am, because I can remember those particular events quite clearly. I can remember the first conversation on the 23rd, when it first came to my attention, and I can recall the telephone conversation – well, the teleconference that we had related to the further review.
HER HONOUR: Can I just ask a question. Why do you think you remember them so clearly?---I was probably somewhat outraged that conduct like that could actually occur, and when it came to my attention I was particularly concerned that that type of conduct was taking place at the mine site, and hence why clearly it was a matter that required investigation.
Thank you.
MR CRAWSHAW: It was the actual forcible dragging through the door that was what outraged you, wasn’t it?---Well, yes. There were two elements. One was obviously the physically manhandling.
Yes?---And the second was the language.
Yes. Well, we will come to the language in a second. But what outraged you about the physical contact was not just that he touched him, or grabbed him on the clothing or body, but that he dragged him through the door?---That’s correct. What – if I could just put it in my own words, I was very concerned that somebody who’s trying to go about their work can be forcibly taken from one point of the mine to another, against his will.
Yes. So you’re making all this up, aren’t you, Mr Craig, that this was part of the conversation on the 30th?---No, I’m not.
(Transcript 5 July 2012 p 207 l 31 - p 208 l 43)I am not persuaded that Mr Craig “made up” this evidence as suggested by Counsel for the applicant – rather I consider Mr Craig was elaborating on the already detailed material in his affidavit.
I also note Mr Stroppiana’s evidence in relation to his concern that a “culture of intimidation” was developing or in existence at the mine wherein people who had made complaints or raised issues had been subject to intimidation or had damage done to their property (transcript 5 July 2012 p 183 ll 24-46). At relevant times Mr Stroppiana had information suggesting that Mr Crompton had engaged in verbal and physical bullying of Mr Moore (and to a lesser extent, Mr Bright on 22 March 2011), as well as improper direction of Mr Bright and Mr Moore. It is clear that, in conducting the investigation and in recommending that Mr Crompton be stood down and dismissed, Mr Stroppiana considered that Mr Crompton was contributing to the development of an undesirable culture of this nature in light of Mr Crompton’s serious misconduct.
Fourth, I am satisfied that Mr Craig viewed the use of the word “scab” by one employee against another to be a very serious slur, particularly in the mining industry. I note paragraph 24(b) of Mr Craig’s affidavit where the witness states:
I regard the use of the word “scab” as totally unacceptable. I was particularly concerned about the allegation of the use of the word “scab” as, in my view and my experience, when that term is used against an employee at a mine site.
The applicant submitted that there was no basis for Mr Craig forming the view that the use of the word “scab” potentially resulted in intimidation, harassment or bullying by co-workers. However I am not persuaded that Mr Craig did not hold that belief, or did not have a basis upon which to hold that belief. Mr Terrence Low, the President of the Peak Downs Lodge of the applicant union, certainly gave evidence that the use of the word “scab” was almost always unacceptable (transcript 4 July 2012 p 94).
Further, I note the following evidence of Mr Craig given at the hearing:
Is that in Australia or is that overseas? What does that mean?---If I relate my experience purely to my time in coal, as an example, your Honour, the use of the word “scab” and examples I have seen particularly in BMA indicate very clearly people being singled out for mistreatment. We have seen recent examples even during the likes of some of the current industrial action that we are going through, where people - some people may have anything from stainless steel clips thrown into their garden or “scab” burnt into their front lawn with chemicals and such other matters. So I think when you do see the word “scab” or the connotation of “scab”, it does have a particular meaning, and what I ascribe to the word “scab” is that you are going against a membership group, and that you will be singled out for mistreatment. And that has been my experience and - - -
Over what period of time?---I think I’ve seen it in my time in South Africa. Well, actually, in Mozambique we had some strike action there where employees who crossed the picket line would be exposed to risk. But I think I have seen it in a more pronounced fashion since I’ve been in Australia.
But you’re - are you blurring there crossing the picket line and the use of the word “scab”?---No. No, I see “scab” almost as a universal term for anybody who doesn’t follow the fold and, as such, separating themselves and, therefore, singling - people being singled out for mistreatment.
(Transcript 5 July 2012 p 211 ll 26-46)…
All right. Well, we will come - okay. But we will come to that. But the forerunner is if “scab” used in an industrial relations, human relations context, that it suggests that the person who it is used against has gone against union principles or union policy?---Yes.
But you say the use of the word “scab” arises in that context, but also involves the person who is called a “scab” being singled out for harassment, intimidation, bullying, matters of that kind?---Yes.
So you acted on the basis that once - that if it was established that Mr Crompton called Mr Moore a “scab”, that as night follows day it was likely that he would be then singled out by the union members at the worksite for intimidation, harassment or bullying?---Yes.
And that was the basis on which you acted in 24(b)?---Yes.
And, see, I want to suggest to you that that is totally unbelievable, Mr Craig. It’s totally unbelievable that you would think that every time the word “scab” was used the person against whom it was used would necessarily then suffer from physical or mental intimidation of some kind?---I do not agree.
HER HONOUR: So could I just ask a question. So in your experience, the word “scab” is not a term to be used lightly?---That - that’s correct. My experience would be to be a “scab”, or to continue the conduct or any conduct which was the conduct resulting in your being called the “scab”, would certainly place a tag on you to warrant workmates or colleagues potentially mistreating that person.
(Transcript 5 July 2012 p 212 ll 15-40)I accept this evidence. I am satisfied that there was ample justification for Mr Craig to find that it was unacceptable, in circumstances where Mr Crompton had accused Mr Moore of contravening a union policy, for Mr Crompton to call Mr Moore a “scab”.
Fifth, I am satisfied on the facts before the Court that Mr Crompton had indicated to both Mr Bright and Mr Moore that they should not attend work for reasons connected with the amount of overtime they had worked. I am further satisfied that Mr Craig considered it a serious matter that unauthorised personnel - such as Mr Crompton - should purport to direct co-workers at the mine concerning whether or not they should attend work. I note in particular evidence of Mr Craig at transcript 5 July 2012 p 233 l 45 - p 234 l 36.
Finally, I note the following evidence of Mr Craig:
All right. Now, the first thing I just want to raise with you is this: that, again, it was made clear from your knowledge of the allegations and what Mr Stroppiana said to you on this day in relation to the first and second incidents that central to the allegation was that Mr Crompton was taking issue with a breach of the union’s overtime policy?---No. Central was the conduct.
Well, that included Mr Crompton taking issue with the breach of the union overtime policy?---Well, that was the reason for him behaving the way he did, but the cause or the concern in question was the conduct.
Well, the conversation itself was about the breach of the union overtime policy, wasn’t it, in your view?---No. The conversation was about Mr Crompton’s conduct towards Mr Moore.
And that included the conversation about the breach of the union overtime policy?---Well, that was the conversation that was taking place, but the matter in question was the conduct.
(Transcript 5 July 2012 p 216 l 41- p 217 l 11)In my view this evidence goes to the heart of the reason why the applicant’s claim cannot be sustained. While the applicant’s case is that the respondent’s adverse action against Mr Crompton was motivated by his engaging in industrial activity, I am satisfied that this is not the case, and that the respondent’s adverse action was motivated by Mr Crompton’s aggressive conduct towards Mr Moore, as well as his purported direction of co-workers. In my view the facts amply support this finding.
CONCLUSION
In summary I do not accept, on the material before me, that the respondent’s reasons for taking adverse action against Mr Crompton were reasons which contravened the Act. This was, in my view, succinctly expressed by the following submissions of Mr Dixon SC for the respondent during the hearing:
In our respectful submission and the respondent’s case is, your Honour, that the existence of the union overtime policy in this case might be what your Honour might conclude motivated Mr Crompton to act in a particular way but it is not what in any way motivated the company.
(Transcript 4 July 2012 p 128 ll 42-45)….
The fact that Mr Crompton was promoting on the version that the union now puts a union overtime policy was not an operative reason for the company’s actions. It may have been the context or it may have been a proximate reason as to what gave rise to Mr Crompton’s conduct, but the existence of that policy or any belief or concerns or pursuing of that policy, which of course was disavowed which I will show your Honour in a moment, could not be said to be part of the operative reason for the company’s conduct.
(Transcript 20 July 2012 p 378 ll 19-25)The appropriate order is to dismiss the application.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 23 October 2013
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