[2021] FWC 5913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Grieve
v
BHP Mitsui Coal Pty Ltd
(U2021/2154)

DEPUTY PRESIDENT LAKE

BRISBANE, 14 SEPTEMBER 2021

Application for unfair dismissal remedy

[1] Mr Daniel Grieve (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by BHP Mitsui Coal Pty Ltd (the Respondent) at the Poitrel Mine in the Bowen Basin region of Central Queensland.

[2] The Applicant commenced employment with the Respondent on 14 August 2017 and was terminated on 21 February 2021 for misconduct. It is not in dispute that the application was made within time, the Applicant is protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply and the dismissal did not involve a genuine redundancy. 1 The matter for determination is whether the Applicant’s dismissal was harsh, unjust or unreasonable.

[3] This matter was heard in Mackay on 19 July 2021. At the hearing, the Applicant was self-represented. Ms Amanda Coulthard of Counsel appeared for the Respondent, instructed by Herbert Smith Freehills. I was satisfied that leave should be granted for the Respondent, for reasons outlined in my decision of 12 July 2021. 2

APPLICANT’S MATERIAL

The Applicant’s evidence

[4] The Applicant prepared a written statement and gave evidence at the hearing. He stated that he commenced his working career in the mining industry, gaining a mechanical trade apprentice at 16 years of age, and then worked in several mining sectors before obtaining his NSW Open Cut Examiners (OCE) ticket in 2008. In 2012, he sat for the Queensland OCE ticket, and was deemed competent. In 2014, he relocated to Queensland and was involved in the reopening of Collinsville Coal Mine. In 2015, he began working for Mikala Mining at Poitrel Mine. Following his appointment as OCE and supervisor, he would fill either of these two roles, as needed. He was in the Senior Production Supervisor role in August 2017, when he took up a full time position at Poitrel for the Respondent. He continued to transition between Supervisor and OCE roles across the C & D crews.

[5] The Applicant said that during his employment at Poitrel, he witnessed mismanagement of safety incidents on several occasions, which had been reported or escalated to supervisors, OCE’s, superintendents and production managers. The Applicant stated that these incidents were “swept under the carpet” and that not attempts were made to learn from the incident. Consequently, the Applicant escalated the event to the Respondent’s Ethics Point, who encourage the reporting of such events.

[6] On the Sunday of his first swing back at work after making the Ethics Point report, the Applicant said his supervisor, Mr Luke Cooper, spoke with him and said he did not think the Applicant was okay. The Applicant said he was, but added that he was hating his job, as he had been demoted back to an operating role. He thought this demotion followed him speaking up about safety. Mr Cooper sent the Applicant to the site’s First Aid attendant, who after some phone calls, arranged a driver to take him to the Mackay Base Hospital, suggesting he needed emergency mental health assessment. The Applicant was seen by three doctors who asked him questions and assessed his mental health. The head doctor on duty suggested he required a solicitor, rather than a doctor, and prepared a written report stating there were no concerns with the Applicant’s mental health.

[7] The Applicant stated that five days later, he was asked over the phone by an ERT member to complete a full psychiatric assessment by Gryphon Psychological before he returned to work. He was then emailed a Disclosure of Information document that he was required to sign and return. This document was signed by Mr Les Brown, his superintendent. The form suggested manager input was required, but the Applicant said he had not spoken to a manager.

[8] Apart from the phone call, the Applicant received no further communication from the Respondent, so the following Sunday , he rang Mr Cooper, hoping to better understand the situation. The Applicant stated that Mr Copper said he had spoken with Mr Brown, and that may have triggered the request to get another assessment. During the discussion with Mr Cooper, it was agreed the Applicant would wait until the Ethics Point investigation was completed and then arrange the Gryphon assessment.

[9] The Applicant’s evidence was that Mr Brown rang him in October and said he intended to call the Applicant the following Friday with Mr Cooper to arrange for the Applicant’s return to work, but that call did not eventuate.

[10] In January 2020, approximately five months after being removed from site, the Applicant was contacted by a solicitor who was engaged by Ethics Point to investigate. The Applicant spoke with the solicitor about the events reported on and his concerns, and she asked, “are you saying we sent you home, and aren’t paying you”. The Applicant informed her that was correct.

[11] The Applicant stated that he then began receiving some payment from the Respondent, however he has not seen pay slips, and suggests that the amount received was about 10% of his normal wage.

[12] After some delays, the Applicant stated that he arranged an appointment with Gryphon and did the assessment a short time after. The assessment was done over some time and the findings corroborated those of the doctors at the Mackay Base Hospital, which was that there were no mental health issues. The Applicant’s evidence was that despite the growing number of professionals reporting no metal health findings, Mr Brown required the Applicant to sign a document with commitments to complete more Gryphon visits and carry out specially made daily risk assessments on himself to assess his mental health.

[13] The Applicant returned to work around 22 July 2020 and continued to work as an operator onsite. He stated that at times he was told by Mr Benjamin, and his supervisors, that if he did not like it, he should leave. Upon his return, his existing email address had been closed and he was issued with a different one, and for the most part, treated as a new employee. He had to be trained to operate a haul truck, as he had never held that competency. His requests to work and be trained on other equipment that he had more recent experience on were ignored. The Applicant stated that others in his crew agreed that he was being treated poorly and targeted for speaking up.

[14] On 14 November 2020, the Applicant stated that he had operated a dump truck and parked it at the end of shift. The next day his supervisor told him that the vehicle had been found with a bent emergency ladder at the end of the Applicant’s shift the day before. The Applicant did not recall if or when this damage had occurred, and his evidence was that given the size of the vehicle it was entirely possible it could occur without the driver being aware. He also said it was not uncommon for minor damage of this kind to occur. The Applicant completed an incident statement and thought no more of it.

[15] During his shift on 16 November 2021, another operator on his crew, Mr Brendan Thicke had been operating Dozer 3 when the OCE failed to get Pos Coms in Light Vehicle (LV) 18-5 and drove meters from the dozer while it was working. The Applicant stated that Mr Thicke was heard on the two-way calling the incident in to the OCE, and the OCE was heard arguing the event was a POS Coms incident at all. A few hours after this alleged event, the Applicant stated that Mr Thicke arrived at Ramp 30 and told the Applicant he intended to write a statement about incident.

[16] The Applicant stated that he was sent to Mr Thicke’s dozer because Mr Thicke was involved in writing a statement for the earlier incident. Consequently, at the end of shift, the Applicant drove 18-25 LV from Ramp 40 to the Ramp 30 go-line at the end of shift. He said they were late to be swapped out so he was driving “efficiently”. The Applicant acknowledged having passed LV 18-6 in Ramp 40 at 5.50pm but did not believe he passed any other LV.

[17] Later that evening, the Applicant says he received a text message from the woman with whom he had a relationship (for the purposes of this decision, I will refer to her as T), who was on night shift, stating that she had observed the night shift supervisors downloading the GPS data from 18-25.

[18] At approximately 11:00am on 17 November 2020, the Applicant was picked up from a dozer in pit and driven to the office to meet with the supervisor and superintendent. At that meeting, he was told that he was stood down because it was alleged that he had been speeding in a 60km/hr zone, had not slowed for intersections, had driven in an unsafe manner and had been observed waving in an offensive manner.

[19] During the meeting, the Applicant recalls Mr Benjamin telling him he could return home to Airlie Beach, as he would not be required for the remaining two days of his swing. The Applicant was given a letter and was driven back to camp at around 12.30pm.

[20] The Applicant stated that he then went and spoke with T, who was working night shift, to let her know what had happened. The Applicant acknowledged that their relationship had been struggling following the loss of their baby. He stated that they sat outside T’s room for some time chatting before she invited him in for coffee. The Applicant stated that he followed her inside, but instead of making coffee, she got into her bed and invited the Applicant to join her.

[21] A couple of hours later, he stated that he left camp and drove to Mackay, where he picked his dog up from the kennels, and went to his storage shed. It was only then that he read the letter he had been given. He understood that it required him to stay at camp during his normal rostered shifts to be available for the investigation. Worried that his absence would impact adversely on him – he was particularly concerned as he thought Mr Benjamin was setting him up by telling him to return home while giving him a letter that said he needed to stay at camp – he made a decision to return to camp with his dog. He says that when he arrived, he received permission from a security guard and administration officer to have his dog at camp. The dog mostly remained in his car. He made no attempt to hide the fact that he had his dog with him, as he believed he had been authorised to do so.

[22] In the hearing, the Applicant stated that the letter dated 17 November 2020 that was provided in these proceedings by the Respondent (which is set out below) was not the one he was handed, but he no longer had a copy of the one he says he actually received on that day. He had left the original in his camp room, but he had not returned there. His solicitor may have a copy but he could not access that either, due to payment issues.

[23] On 18 November 2020, the Applicant stated that he waited around camp as per the written instruction. At around 3.50pm, just after T’s alarm clock usually went off, the Applicant arrived at her room with hot chips, gravy and her favourite chocolate bar. He said that she invited him in, and they sat on her bed while she ate the food. The Applicant stated that she showed him that she had leftover chips and gravy from the previous day, which she had bought after he left the day before.

[24] The Applicant stated that shortly after missing a call from her brother, T became distant and frustrated with him. He asked what was wrong, to which she gave odd answers that did not relate or make sense. Approximately 20 minutes after he had arrived, the Applicant decided T was unhappy with him and did not want to talk, so he left to give her some space.

[25] The Applicant stated that on 26 November 2020, as per the written instructions, he returned to camp to be available for any investigation. He stated that at approximately 6.30pm, he was visited by Mr Benjamin and a camp security person at his room. Mr Benjamin told the Applicant two further allegations had been made against him, namely that he had entered a camp room of another worker without permission and that he had used a master key to do so. The Applicant said that he was not given anything in writing regarding these allegations at this time.

[26] The Applicant was asked to leave the camp and told he would be notified of the process in due course. The Applicant recalls being given 10 minutes to pack and then leaving for Airlie Beach as instructed.

[27] On the afternoon of 30 November 2020, Mr Benjamin contacted the Applicant requesting that he attend a Zoom meeting the following day at 10am, at which he could have a support person. The Applicant contacted Ms Tiona McGuigan, who he had previously spoken to about being his support person. However, on the morning of 1 December 2020, when the Applicant tried contacting Ms McGuigan, he could not do so. Consequently, he asked Mr Benjamin to postpone the meeting for 24 hours. Mr Benjamin only agreed to postpone the meeting until 2pm. The Applicant contacted many people and went looking for others at their homes, to find a support person. As the new meeting time approached, the Applicant contacted Mr Benjamin to let him know he had no success finding another support person. The Applicant stated that Mr Benjamin refused to reschedule the meeting and that the Applicant was “required to attend.”

[28] At the meeting, Mr Benjamin put the following allegations to the Applicant:

1. On 14 November 2020, the Applicant bent the emergency Ladder on RD17 (Allegation 1);

2. On 16 November 2020, the Applicant was observed speeding, not slowing down for intersections, and driving in an unsafe manner in LV18-25 at 5.50pm (Allegation 2);

3. On 16 November 2020, the Applicant was observed waving in an offensive manner (Allegation 3); and

4. On 17 and 18 of November, the Applicant had his dog at camp (Allegation 4).

[29] Mr Benjamin described the potential breaches in respect of the allegations and then asked for the Applicant’s response.

[30] In respect of Allegation 1, the Applicant responded with words to the effect of:

“RD17 bent ladder could only be caused from mechanical failure of the latch that holds it folded up. I identified that other trucks had had the same issues that week. Sometimes another person that can see the trucks ladder has fallen will call the truck up, and they can get out and fold it back up before its damaged.”

[31] In respect of Allegation 2, the Applicant responded with words to the effect of:

“…I did not believe I was speeding, or not slowing down for intersections, as “observed”. I did not at any time, put the wellbeing of my passengers, other persons, or myself at any risk of injury or worse I asked if there was other evidence, other than being “observed speeding” I was told there was evidence. I suggested, if there was GPS data evidence that showed I was speeding, then the same evidence could show my speed through intersection decreasing or increasing and prove or disprove that part of the allegation. At no time during this meeting was the speed of 84km/s an hour mentioned or any other speed. I stated that if I was shown the evidence proved, I was speeding I would take the learning away and ensure it did not happen again.

[32] In respect of Allegation 3, the Applicant responded with words to the effect of:

“That I never meant to offend anyone, and that I remember waving to Mozzy in 18-6 LV, with whom I had a great relationship with. But if I was wrong in my judgment and did offend him, or another CMW, could I be made aware who, and allow me an opportunity to take steps to apologise. I stated I would take away the learning, to ensure a none repeat.”

[33] In respect of Allegation 4, the Applicant responded with words to the effect of:

“I recounted the … events, with regards to getting my dog, and reading the written instructions that meant I returned to camp. I stated that I had gotten permission from to Civeo employees to have the dog at camp. I think this was a shock to SB, learning that id gotten permission. I suggested of could point out the people id gotten permission from”

[34] At the end of his responses, the Applicant stated that Mr Benjamin said he had to follow up some things with camp and should have an outcome the following work week.

[35] On 15 December 2020, Mr Benjamin rang to arrange another meeting with the Applicant, stating it would be to go through another two allegations, rather than provide an outcome. The Applicant was able to arrange a support person, Mr Jana Padfield, who took detailed notes of the meeting, and all other meetings that followed.

[36] At that meeting, Mr Benjamin put two further allegations to the Applicant:

1. On 17 and 18 November, he had entered the camp room of another coal mine worker without her authorisation (Allegation 5); and

2. The Applicant had used a master key to enter on both occasions without authorisation (Allegation 6).

[37] The coal mine worker referred to in the allegations was T.

[38] Directly after the meeting, the Applicant screenshot and emailed examples of messages that T had sent to him, both before and after he had been to her room on those days to show she did not communicate there being an issue with his visits.

[39] On 22 January 2021, Mr Benjamin requested another meeting and asked the Applicant to show cause as to why his employment should not be terminated. A letter to that effect was provided, the relevant sections of which are extracted below:

“I refer to our meeting on 1st December 2020 and 15th December 2020 in regards to the investigation into your conduct on 14th, 16th, 17th, and 18th November 2020. I note that you chose to bring Jana Padfield as a support person. I note that you elected not to bring a support person to the first meeting.

…The investigation is now complete. The investigation found that:

• On 14 November 2020, while operating RD17, you damaged the emergency ladder.

• On 16 November 2020, you were driving LV 18.25 with 2 other passengers from Exl dump in R40N 180RL to R30 main go line at end of dayshift;

• You were observed driving in an unsafe manner, not slowing down through intersections, and driving at 84km/h, well in excess of the 60km/h speed limit;

• On the same day, you were observed raising your fingers to other employees in a disrespectful manner.

• Between 17th November and 18th November, you had your dog at the Coppabella Civeo Camp without authorisation, in breach of the Civeo Code of Conduct.

• On 17 November 2020 while stood aside, you entered the camp room of another coal mine worker without authorisation while they were sleeping.

• On 18 November 2020, you again entered the camp room of the same coal mine worker without authorisation while they were sleeping.”

[40] The letter then set out how the substantiated allegations breached specific sections of Poitrel’s Standard Operating Procedures, BHP’s Code of Conduct, Accommodation Handbook and Charter Values and Civeo’s Code of Conduct and Village Rules, all of which the Respondent’s employees were required to comply with.

[41] The letter continued:

“I have taken all relevant matters into account, including the findings of the investigation, relevant information obtained during the investigation and your employment history in determining the appropriate outcome.

Outcome - Show Cause

Daniel, these findings are serious and constitute misconduct. The Company is considering taking disciplinary action against you, which might include the termination of your employment. Before deciding the appropriate outcome, I would like to provide you with an opportunity to provide a further written response and to show cause as to why your employment should not be terminated.

Please provide your written response to me by 3pm on Monday 25th January 2021 by email to [redacted]. If you do not provide a written response by this time, I will make a decision in relation to your employment based on the information presently available. Please let me know if you require an extension of the time for providing your written response.

In deciding the appropriate outcome, a number of factors will be considered, including your written and verbal responses, the findings of the investigation, relevant information obtained during the investigation and your employment history with the Company.”

[42] The letter reminded the Applicant of the availability of the Employee Assistance Program and the need to keep these matters confidential.

[43] On 29 January 2021, the Applicant provided a half-completed response, noting that he been unable to get advice as he would have liked.

[44] On 4 February 2021, the Applicant stated that, albeit with little notice, Mr Benjamin granted the Applicant an extension of time to provide further information. The Applicant asked Mr Benjamin specifically what information he meant, because the Applicant had continually asked for more information from Mr Benjamin that, though available, was not provided. Mr Benjamin did not specify.

[45] On 5 February 2021, Mr Benjamin sent an email to the Applicant again asking him to provide any evidence he wanted Mr Benjamin in response to the show cause letter. On 8 February 2021, the Applicant sent Mr Benjamin an email purporting to attach a document in response, but attachment was received.

[46] On 10 February 2021, the Applicant sent Mr Benjamin an email attaching a document containing evidence and a further response to the allegations. This concluded the Applicant’s response to the show cause letter of 22 January 2021.

[47] On 21 February 2021, a final meeting was held, where the Applicant was issued with a letter, which noted his employment was terminated, effective immediately, for reasons of misconduct. The termination letter noted the Applicant would be paid four weeks’ pay in lieu of notice, as was required by his employment contract.

Post termination

[48] The Applicant stated that it was evident to himself, and other crew members that he was being treated differently by the management team, because he had spoken up about safety, despite his statutory obligation to do so. The Applicant stated that this was why he approached a solicitor and initiated the unfair dismissal process.

Wages claim

[49] Though beyond the scope of these proceedings, the Applicant gave evidence that between 25 August 2019 when he was sent from site to Mackay Base Hospital until returning to work on the 9 July 2021, the Respondent did not pay him, though shortly after he spoke with the solicitor, he began to receive a small payment. The Applicant stated that the 42 weeks’ pay less the amount forwarded to him is approximately $101,000.00 in unpaid wages. The Applicant stated that the bonus paid for the same year was approximately $15,300.00, however his bonus was approximately $80. The Applicant stated that their certified agreement does not accommodate any part payment or prorated payment and is paid in full to other people who did not work the year in full. The Applicant said that other loses and costs included him having to outlay living costs while not being paid and this year’s bonus as well. The Applicant stated that the Respondent breached the long service leave payment time frame and have not provided him with payslips either.

Bent ladder

[50] The Applicant stated that the findings that he was at fault, or in any way accountable for the bent ladder, is unreasonable due to the event being initiated by a mechanical latch failure whilst he was operating the machine. He stated that it is unjust and unreasonable to hold the operator of the machine to account for this mechanical failing. The Applicant likened it to someone hiring a car from a car hire company and the wheels falling off.

[51] The Applicant accepted that the ladder was bent while he was operating the machine, but stated that when in the truck it is not possible to see the ladder and that it was not uncommon for steel ladder latches to break. The Applicant stated that the ladder was bent due to mechanical failure of the latch to allow it to come down from an approximate ground clearance of 1400 mil down to about 800, just under 800 mil, and that's in an unloaded truck. Therefore, when 240 tonne of dirt is put on it, it can contract the ground. The Applicant thought this would be the end of this matter.

Dog at camp

[52] The Applicant’s evidence was that the conclusion that he had his dog at camp without permission is unreasonable because in the first meeting he stated he had spoken to two camp employees and received permission to have the dog at camp. When Mr Benjamin said at the that he had to follow “some things up with camp”, the Applicant assumed that he would speak to the two individuals who would verify his account.

[53] At the end of the second meeting, the Applicant told Mr Benjamin that he remembered that there had been two witnesses to him getting permission. The Applicant stated that he did not feel he could get witness statements from these people under the strict confidentiality rules he had been served with.

[54] In any event, the Applicant stated that any finding that he did not have authorisation to have his dog on site is unreasonable because the Respondent had the information and evidence in front of them, to verify and support the Applicant’s version of events. Accordingly, it is unjust to conclude the Applicant did not have permission when he did, or at least, thought he did.

Alleged Speeding

[55] The Applicant’s evidence was that the wording of the allegation regarding his speeding and failure to slow down for intersections has changed since it was first put to him in the 1 December 2020 meeting. He said the changes made, including the inclusion of the 84km an hour speed limit, is harsh because he had not had an opportunity to respond to the claimed speed. The Applicant says that the fact that the 84km/hr was not put to him specifically initially, raises significant questions about the integrity of the allegation.

[56] The Applicant stated that the stand down letter, and investigation, could have included the 84km if this was authentic, as the download was reported to him as having occurred on 16 November 2020, when another worker was engaged to do this, just hours after the allegations were made.

[57] The Applicant’s evidence was that it is harsh to allege he was affecting the safety and health of any other employees during his drive if he was speeding when the Respondent has previously had confidence in him exceeding the nominated speed limit on many other occasions. During a training exercise, the Applicant stated he was required to travel at speeds much higher on that same road from 40 ramp, past Ramp 30, and continue to the front gate.

[58] The Applicant stated that his actions were known to, and reviewed by, the Respondent’s management team and he was complimented. The Applicant stated that it is harsh that the Respondent would authorise him to perform tasks in specific ways without mention of safety concerns, and then on the same road, at much less speed suggest he was causing harm.

[59] In the hearing, the Applicant admitted that he was driving efficiently, but did not deliberately speed. He said that vehicle’s speed generally is not checked on site, but in his case it was. He said that it seemed the Respondent had used this allegation as an opportunity to exit him from the business.

[60] The Applicant stated that given the above, and his prior clean disciplinary history, it is harsh that his employment was terminated. He said that was particularly so given that he was aware that other employees who committed other breaches – including some which, he argued, were more serious than his own – did not result in termination of their employment.

Offensive wave

[61] The Applicant stated that it is harsh and unreasonable to refuse to provide specific details on the allegations regarding the “offensive wave”. The Applicant stated that the gesture was not intended to be disrespectful or offensive and was happy to apologise to anyone that found it so. He could also have taken this opportunity to learn and endeavoured not to offend anyone in future. In any event, he asserted that it was unreasonable to terminate his employment for making such a gesture.

Entering T’s room

[62] The Applicant stated that the original allegations were that he entered a room on 17 and 18 November 2020 without permission. He had provided significant evidence to show it could not be substantiated through text messages. However, he stated that the findings differentiated between the two days and he had not been given the opportunity to respond to the allegations as if they were two separate allegations.

[63] The Applicant’s evidence in the hearing was that he could not remember which day he opened T’s door, but it was definitely unlocked on that day, and he had permission to be in her room on both occasions.

Refused a support person

[64] The Applicant stated that he had requested that the first phone meeting be delayed to allow him the opportunity to bring a support person. This would still have been during his roster. He asserted that the four hour extension did not allow him time to find a support person despite his best efforts. Notwithstanding, Mr Benjamin told the Applicant he was “required” to attend. In doing so, the Applicant said that Mr Benjamin effectively refused him having a support person even though the Applicant is aware that the Respondent often reschedules these meetings to allow union representatives to attend and support.

[65] In cross examination, the Applicant accepted that when he was unable to contact his support person at the first meeting, Mr Benjamin offered him a support person from the office, to which he declined because he did not trust that they would be there to support him, given his misgivings towards management at that time.

Applicant’s Submissions

[66] The Applicant did not provide closing submissions. However, throughout the course of these proceedings he has provided a mixture of submissions and evidence. In addition to everything set out above, the Applicant’s submissions in respect of whether the Respondent had a valid reason to terminate his employment may be summarised as follows:

(a) the Applicant says he was driving “efficiently” on the day in question, however, denies that was operating the vehicle in an unsafe matter;

(b) the Applicant never intended to offend anyone by making the hand gesture. To him, the gesture was a common greeting – almost a wave – used onsite. Had the Applicant been alerted to the fact that someone had been offended by this gesture, he would have expected that it be raised with him so that he could apologise, take away the learning from the incident and ensure it was not repeated;

(c) the bend in the ladder was likely caused by a mechanical failure of the latch that holds it up. This damage was not unusual on a mine site. It would be unjust and unreasonable to hold the operator of the machine to account for this mechanical failure. To do so would be like holding someone who had hired a car from car hire company to account if the wheels fell off;

(d) the incident involving his dog was explained above. Given the events as described by the Applicant, he did not think he was breaching any rules (he thought he had the requisite permission to the extent that it was necessary) and, in any event, the incident did not warrant the termination of his employment; and

(e) the Applicant’s evidence with respect to his entry into T’s room have been described in detail above. The situation between them was complex and he maintains that on each occasion she had allowed him to enter her room.

[67] For the reasons set out above and in light of the evidence already described, the Applicant submitted that the Respondent did not have a valid reason for terminating his employment.

[68] Even if there was a valid reason, the Applicant would assert that the dismissal was harsh, unjust or unreasonable on the basis that the procedural aspects of his dismissal were defective. Specifically, the Applicant submitted that:

(a) the Applicant sought further evidence from the Respondent prior to filing his final response to the show cause letter, but those requests were refused. This inhibited his ability to respond to the allegations against him;

(b) throughout the investigation, the Applicant maintained that having been made aware of the Respondent’s concerns with his performance, he could take that learning from the incidents and ensure that those issues did not occur again. However, the Respondent was unwilling to allow the Applicant that opportunity;

(c) Mr Benjamin did not conduct further investigations based on the Applicant’s responses to the allegations. Had he done so, he would have found the Applicant’s assertions regarding the dog and his entry into T’s room to be true;

(d) he was unreasonably denied a support person in the meeting on 1 December 2020; and

(e) the allegations with respect to his entry into T’s room – with or without a master key – had been modified over time by splitting the allegation which originally contained two dates into two separate allegations.

[69] The Applicant pointed to a number of other matters that the Commission should take into consideration, namely:

(a) his three and a half years of service with the Respondent and the fact he had no prior disciplinary action;

(b) the significant personal and economic impact that the dismissal has had on him;

(d) that his dismissal was a retaliatory act following him speaking out about safety matters. He points to the demotion and referral to hospital for an emergency mental health assessment that occurred after he reported some safety issues; and

(e) that other individuals had engaged in conduct that was far more serious than his but had not been terminated.

RESPONDENT’S MATERIAL

Evidence of Mr Scott Benjamin

Mr Scott Benjamin, Mining Production Superintendent at Poitrel Mine provided a witness statement and gave evidence at the hearing. Mr Benjamin stated that he is currently employed by the Respondent as a Mining Production Superintendent at Poitrel and has been in that position since August 2020.

[70] Prior to his current role, he was employed in various other positions by the Respondent from December 2012, including Mining Coordinator at Poitrel, Drill and Blast/Pumps and Earthworks Coordinator at Poitrel, Dragline and DZP Engineer at BMC's South Walker Creek Mine (SWC), Scheduling Engineer at SWC and Drill and Blast Engineer at SWC.

[71] In his role as Mining Production Superintendent at Poitrel, Mr Benjamin is directly responsible for the supervision and management of two production crews (C and D Crews, respectively) in the Mining Production Department (MPD). The supervisors and OCEs for these crews report directly to him.

[72] The MPD's primary function is to extract and transport coal product, whilst maintaining BMC's safety and performance standards. Mr Benjamin’s responsibility in the MPD is to ensure the crews under his supervision achieve production KPls within regulatory safe work procedures and guidelines. More generally, it is his responsibility that the approximately 102 employees under his supervision maintain the Respondent's respectful, productive and safety-focused culture. Of all the employees he supervises, roughly 45 are on-site at any given time.

Poitrel and Coppabella Camp

[73] Employees of BMC engaged in the MPD at Poitrel work a different roster pattern depending on which crew they are in and which roster cycle they work. Mr Benjamin stated that mine employees, like the Applicant, work seven days on, seven days off, alternating between day shift and night shift.

[74] Mr Benjamin stated that he works eight days on, six days off. He stated that he attends site on the days he is rostered to work, but otherwise resides in Mackay and commutes by car. The workforce at Poitrel predominantly work on a 'fly-in, fly-out' or 'drive-in, drive-out' basis and most reside at the nearby Coppabella Village (Camp) during their roster cycle.

[75] Mr Benjamin stated that the Camp is not operated by BMC but outsourced to accommodation services provider Civeo Pty Ltd (Civeo). The Camp is situated within the township of Coppabella, approximately 160 kilometres south-west of Mackay. BMC employees commute to Poitrel from the Camp via a BMC-provided shuttle service. The travel time between Camp and Poitrel by bus is approximately 25 minutes.

[76] BMC employees who reside at Camp are required to comply with all the obligations set out in the BMC Accommodation Handbook (Handbook) and Civeo's Code of Conduct (Camp Code). The Handbook also sets out rules that must be followed by all BMC employees residing at Camp (Village Rules).

The Applicant's Employment

[77] Mr Benjamin’s evidence was that the Applicant worked in the MPD at Poitrel from 7 September 2017 until his dismissal on 21 February 2021. At the time of his dismissal, the Applicant's employment was subject to the BHP Billiton Mitsui Coal Pty Ltd Poitrel Mine Enterprise Agreement 2019 (the Agreement).

[78] Mr Benjamin stated that the Applicant's direct line supervisor at the time of his dismissal was Mr Brad Hyvonen, Supervisor - D Crew in the MP Department. Mr Hyvonen reports to Mr Benjamin.

[79] As an employee of BMC, Mr Benjamin stated that the Applicant was subject to the obligations set out in the Charter Values (Values) and Code of BHP Group Ltd (BHP). The Code and Values set out the expectations of all employees of the Respondent’s entities (including employees of BMC). It is a condition of employment of individuals comply with these documents. That obligation is clearly set out in the Applicant's Contract.

[80] Mr Benjamin said that training in the requirements of the Code is mandatory for all new starters and there is refresher training for existing employees.

[81] Mr Benjamin stated that the Applicant's Contract sets out that it was an obligation of the Applicant's employment to comply with the Code, Values, Camp Code, Handbook and all other BMC and applicable BHP policies and procedures.

Disciplinary Procedure

[82] In his role as a Superintendent, Mr Benjamin stated that he is responsible for overseeing disciplinary procedures for the employees he supervises, including investigations into allegations of misconduct.

[83] Whilst there is no specific disciplinary procedure that he is required to follow in managing disciplinary issues, Mr Benjamin said that as an associated entity of BHP Group Ltd, it is expected that managers within BMC are guided by the process set out in BHP Group's Managing Performance and Conduct Procedure (Disciplinary Procedure).

Allegation 1 - Incident on 14 November 2020 - Damage to emergency ladder on RD17

[84] On 14 November 2020, Mr Mervyn Gesah completed a pre-start check that identified that the emergency ladder on dump truck RD-17 was damaged. He reported that damage to Mr Hyvonen, who subsequently logged the incident with Poitrel's incident management system.

[85] On 16 November 2020, Mr Hyvonen informed Mr Benjamin of the damage to RD17 and that the Applicant had been operating RD-17 before the damage had been discovered, so he had taken a statement from the Applicant in relation to the incident.

[86] Mr Benjamin stated that he subsequently formed the view that the actions of the Applicant on 14 November 2020 were in breach of the Poitrel Standard Operating Procedure 'Inspecting Work Area'. Specifically, the requirement that “All CMWs have a responsibility to obtain information about the condition of the area they are required to perform work in. This is achieved by: ... undertaking visual inspections.”

Allegations 2 and 3 - Incidents on or about 16 November 2020 - Unsafe Driving and Obscene Gesture to Work Colleagues

[87] Mr Benjamin’s evidence was that Poitrel has a strict site speed limit of 60km/hr. This is detailed in Poitrel Standard Operating Procedure 'Using Mobile Plant (Vehicle Incident)'.

[88] On or about 16 November 2020, Mr Benjamin stated that Mr Hyvonen informed him that two employees had observed Applicant driving a light vehicle designated LV 18-25 back to the crib hut at the end of his day shift with two other employees in the vehicle. The two observers had told Mr Hyvonen, who in turn told Mr Benjamin, that the vehicle was travelling at excessive speed and the Applicant had made a hand gesture towards them. Mr Hyvonen informed Mr Benjamin that he had logged the incident in the incident management system.

[89] Mr Benjamin evidence was that most vehicles have on-board cameras, which among other relevant data, monitor the speed of a vehicle. The footage is then stored in a cloud based storage program called Blackvue.

[90] On 17 November 2020, Mr Benjamin stated he observed footage taken from the Applicant’s vehicle during the relevant period which showed the Applicant travelling in excess 60km/hr, making an obscene gesture with his hand towards another vehicle and generally operating the vehicle in an unsafe manner. On that day, Mr Benjamin took statements from the two observers referred to by Mr Hyvonen regarding what they had witnessed on or about 16 November 2020. Mr Benjamin states that those employees told him they were surprised by the Applicant's hand gesture and that it was not usual for him to gesture at them in that way.

[91] On 26 and 27 November 2020, Mr Benjamin emailed Blackvue's technical support team to confirm whether there was any reason the speedometer reading taken from the vehicle would not be correct. Mr Benjamin stated that he received confirmation that if a speedometer reading was showing then it would be accurate.

Stand down

[92] On 17 November 2020, Mr Benjamin stated he spoke to the Applicant during shift and told him that he had been stood aside pending an investigation into the incident regarding his operation of the vehicle. He gave the Applicant a letter, which he says, read:

“Dear Daniel

Direction not to attend work

This letter is to confirm that you are stood aside on full pay from 17 November 2020, pending an investigation into the incident that occurred at work on 16 November 2020. You are directed to not attend work until further notice from the Company.

You will continue to be paid during this time. You must remain contactable (including by phone) and attend any meetings held during your rostered shift hours (in a fit for work condition) or at another agreed time during this period.

Confidentiality

It is important that you keep in mind that any allegations and the investigation are confidential. You must not discuss this matter with any other person unless they are acting as your support person or employee representative. All parties involved in this process, including your support/ employee representative, are also required to keep the matter confidential.

Employee Assistance Program

Daniel, I understand that this may be a difficult time for you. I wish to extend to you the offer of any assistance you may require regarding this matter and also remind you that the Company's Employee Assistance Program (EAP) is available to you. Appointments may be made by contacting Gryphon Psychology directly on [redacted].

In the meantime if you have any questions, please feel free to contact me on [redacted]

Yours sincerely

Scott Benjamin
Mining Superintendent
BMC Poitrel Mine”

[93] Mr Benjamin says he told the Applicant that, whilst he could stay at Camp, he was not required to work during his stand aside period. Mr Benjamin stated that he told the Applicant that he could return home if he wished, but that he had to remain contactable by phone.

[94] In the hearing, Mr Benjamin confirmed that the letter presented in the hearing material, was the letter given to the Applicant on 17 November 2020 and maintained that he told the Applicant he could go home rather than stay at camp, as he was not going to finish the investigation that day.

Allegations 4, 5 and 6 - Reports of misconduct at Camp on 17 and 18 November 2020

[95] On 18 November 2020, Mr Benjamin stated that the two observers told him they had seen the Applicant at Camp with his dog. Consequently, on 19 November 2020, Mr Benjamin emailed Kim MacElroy, Principal - Non-Processing and Infrastructure (Integrated Operations) at BMC, asking her to check with Civeo whether there was evidence of the presence of a dog Applicant's Camp room, WA114.

[96] On 19 November 2020, Ms MacElroy forwarded Mr Benjamin an email which attached photographic evidence that a dog had been in Camp room WA114.

[97] Mr Benjamin’s evidence was that on 26 November 2020, Sarah Bowes, the C Crew Supervisor, brought T to see Mr Benjamin regarding an incident involving the Applicant. Ms Bowes told him that she had observed T become visibly upset during a pre-start meeting and had taken T aside and asked what was wrong, to which T replied there had been an incident at the Camp involving the Applicant.

[98] Mr Benjamin stated that he observed that T was visibly shaken and upset. It was clear she had been crying. Mr Benjamin asked T what the Applicant had done. T told him that on 17 November 2020, the Applicant had come into her room at Camp while she was sleeping. Mr Benjamin stated that T said to him that she had told the Applicant not to come into her room unannounced again. T said the Applicant returned the next day and entered her room, despite her instruction. Mr Benjamin’s evidence was that T told him that she believed the Applicant had a master key because he had told her that he did. T told Mr Benjamin she thought she had locked her door. T said she had become upset at the pre-start meeting on 26 November 2020 because she heard the Applicant was back at Camp. Mr Benjamin took a statement from T regarding these events.

[99] On 26 November 2020, Mr Benjamin stated that he went to see the Applicant in his room and advised him that further allegations had been made against him and that he was required to leave Camp.

[100] On or about 26 November 2020, Mr Benjamin determined that the Applicant's conduct toward T were a breach of the Values of "Respect" and "Integrity" and the Code. Consequently, he reported the matter through Ethics Point and awaited a response from BHP's Ethics and Compliance team as to whether they would investigate the allegations.

[101] On 27 November 2020, Mr Benjamin also took statements from the observers in relation to seeing the Applicant at Camp with his dog.

First Meeting with the Applicant on 1 December 2020

[102] On 30 November 2020, Mr Benjamin telephoned the Applicant to ask if he was free for a meeting the following morning to discuss the misconduct allegations against him. The Applicant said yes and Mr Benjamin told him that he could bring a support person.

[103] On 1 December 2020, Mr Benjamin sent an email to the Applicant inviting him to a video conference at 10:00am that day. The Applicant responded with a request to delay the meeting to allow him time to obtain a support person. Mr Benjamin agreed to delay it until 2:00pm. Later that day, the Applicant sent him a further request for the meeting to be delayed so that he could have a support person. Mr Benjamin denied that request so at 2:00pm on 1 December 2020, Mr Benjamin met with the Applicant to discuss the allegations against him. Ms Amy Schloss, Maintenance Execution Superintendent, also attended to take notes.

[104] Prior to commencing the meeting on 1 December 2020, Mr Benjamin asked the Applicant to confirm he had chosen not to bring a support person. The Applicant refused to accept this as Mr Benjamin had not re-scheduled the meeting to allow him to arrange a support person. Mr Benjamin stated that he told the Applicant that he checked with him on 30 November 2020 whether he was available for a meeting on 1 December 2020 and had already re-scheduled the disciplinary meeting once to allow him to find a support person. Mr Benjamin stated that he told the Applicant he could locate someone at site to attend as his support person, but the Applicant rejected this offer.

[105] During the meeting on 1 December 2020, Mr Benjamin put four allegations to him in relation to the bent emergency ladder, the dangerous operation of the vehicle, the making of the offensive gesture and having his dog at camp. No mention was made to the allegations in relation to T because he was still awaiting a response from Ethics Point.

[106] Mr Benjamin describes the Applicant’s responses to each allegation as follows:

• Allegation 1 - the Applicant did not deny that he was operating RD17 on 14 November 2020 or that the ladder was likely damaged whilst he was operating it. The Applicant said that the emergency ladder likely became unlatched whilst he was operating RD17 due to a fault with the latching mechanism. The Applicant said that he had to operate RD17 in a tight environment on 14 November 2020 and the ladder was likely bent at this time.

• Allegation 2 - the Applicant wanted to see evidence of his speeding and dangerous operation of the Vehicle. He denied speeding and not slowing down at intersections and said he was always told to drive to conditions.

• Allegation 3 - the Applicant did not deny making a gesture but denied that the gesture was offensive and said that it was common greeting in the mining industry. The Applicant stated that the gesture was more of a 'wave'.

• Allegation 4 - the Applicant stated that he understood from his stand aside letter that he had to be at Camp during the stand aside period if he would ordinarily be rostered to work. The Applicant stated that he could not find someone to look after his dog so had brought it to Camp. The Applicant stated that he had permission from a Civeo receptionist and security guard to have the dog at Camp.

Further Investigation

[107] Mr Benjamin’s evidence was that between 1 and 8 December 2020, he summarised all the information provided by the Applicant in the meeting on 1 December 2020 and considered it.

[108] On 8 December 2020, Mr Benjamin sent an email containing a summary of the Applicant's responses to Allegations 1 to 4 to Jayson Smeeton, MP Manager for BMC at Poitrel at the time, and Jonathon Calligeros, Employee Relations Specialist at BHP. Mr Benjamin requested an update from both men regarding the progress of the Ethics Point report relating to the allegations of T.

[109] On 14 December 2021, Mr Benjamin stated that he sent an email to Ms MacElroy to check with Civeo whether any of their employees gave the Applicant permission to have a dog at Camp. On 15 December 2021, Ms MacElroy forwarded him an email from Ms Ammer confirming that no Civeo employee had given the Applicant permission to have a dog at Camp on 26 and 27 November 2021.

[110] On 22 December 2021, Mr Benjamin realised Ms Ammer had asked about the wrong dates and Mr Benjamin sent a further email to Ms MacElroy to check with Civeo whether any of their employees gave the Applicant permission to have a dog at Camp on 17 or 18 November 2020.

[111] On 23 December 2021, Ms MacElroy forwarded Mr Benjamin an email from Ms Ammer stating that no Civeo reception employee had given the Applicant permission to have a dog at Camp on 17 and 18 November 2021.

Second Meeting with the Applicant on 15 December 2020

[112] On or about 14 December 2020, Mr Smeeton told Mr Benjamin that he had received advice from the Ethics and Compliance team that T's allegations were not a Category A matter under the Disciplinary Procedure. Accordingly, Mr Benjamin was to investigate the allegations.

[113] On 14 December 2020, Mr Benjamin telephoned the Applicant to ask if he was free for a meeting the following day in relation to further misconduct allegations. The Applicant said yes. Mr Benjamin told the Applicant he could bring a support person.

[114] On 15 December 2020, Mr Benjamin invited the Applicant to a video conference at 2:30pm that day. That meeting took place at the allotted time. Ms Schloss attended to take notes and the Applicant brought Ms Padfield as his support person. During that meeting, Mr Benjamin put the following allegations to the Applicant:

• That he had entered T’s room without consent on 17 November 2020 using a master key (Allegation 5); and

• That he had entered T’s room without consent on 18 November 2020 using a master key (Allegation 6).

[115] Mr Benjamin stated that the Applicant's response to each of the allegations was in respect of:

• Allegation 5 - the Applicant was in a relationship with T and was in her room with her consent on 17 November 2020, her having invited him inside. The Applicant stated that he did not have a master key.

• Allegation 6 - the Applicant did not have T’s express consent to be in her room on 18 November 2020 but said he thought they had an understanding that he could come in her room when he wished. He would frequently come into her room while they were in a relationship. The Applicant stated that he did not have a master key.

[116] After the meeting, the Applicant sent Mr Benjamin information to consider in his investigation into Allegation 5 and 6.

Further Investigation Steps

[117] On 8 January 2021, Mr Benjamin met with T regarding the Applicant’s responses on 15 December 2020. Mr Benjamin stated that T told him the Applicant did not ask for her permission to visit her room on 17 and 18 November 2020. T told Mr Benjamin that she and the Applicant were not in a relationship at the time, having broken up in October 2020. Mr Benjamin stated that T told him she was still communicating with the Applicant but that their relationship had ended badly. T told Mr Benjamin the Applicant had shown intimidating behaviour toward her in the past. T showed Mr Benjamin a video that she said was taken from a surveillance camera at her house. Mr Benjamin’s evidence was that the video showed the Applicant attempting to gain access to the house with a crow-bar. T told Mr Benjamin she would send through text messages around October and November 2020.

[118] On 11 January 2021, T emailed Mr Benjamin screenshots of text messages between her and the Applicant between 24 October 2020 and 18 November 2020.

[119] On or about 11 January 2021, Mr Benjamin formed the view that T had been truthful in her statements to him on 26 November 2020 and 8 January 2021. Mr Benjamin stated that he formed this view as there was no evidence that she was in a relationship with the Applicant on 17 and 18 November 2020, or that she had invited the Applicant into her room. T appeared to have been distressed by her interactions with the Applicant.

Show Cause Process

[120] On 22 January 2021, Mr Benjamin stated he concluded his investigation and determined that, apart from the detail relating to the possession of a master key, there was sufficient evidence to determine that the allegations against the Applicant had been substantiated because:

• There was physical evidence of Allegation 1. Mr Benjamin did not accept the Applicant's evidence that the emergency ladder would have been damaged due to becoming unlatched as there was no evidence of this issue being reported for other dump trucks at Poitrel around 14 November 2020. Further, even when unlatched, the emergency ladder does not protrude from RD17 and has sufficient ground clearance. Mr Benjamin therefore formed the view that the damage to the emergency ladder on RD17 was most likely caused by operator error. Mr Benjamin formed the view this was in breach of the Standard Operating Procedure. Mr Benjamin further formed the view the Applicant's conduct was in breach of the Code, requiring that he comply with relevant health and safety requirements. Mr Benjamin also formed the view the Applicant's conduct was in breach of the Values, specifically those that put health and safety first, being environmentally responsible and “supporting our communities and doing what is right and doing what we say we will do”.

• There was physical evidence of Allegation 2. Mr Benjamin did not accept the Applicant's claim that he was ok because he was driving efficiently as the Poitrel site maximum of 60km/h is a strict limit. Mr Benjamin formed the view this was in breach of the Standing Operating Procedure by driving over 60k/hr. Further, Mr Benjamin stated that the Applicant had failed to take into account potential blind spots or comply with relevant health and safety requirements. Mr Benjamin also formed the view the Applicant's conduct was in breach of the Values.

• There was physical evidence of Allegation 3. The Applicant's gesture could be perceived by a reasonable person as offensive. From Mr Benjamin’s own experience in the mining industry, he formed the view the gesture made by the Applicant (“the forks”) is not common and Mr Benjamin did not accept the Applicant's claim that the gesture was a “wave”. Mr Benjamin formed the view that the Applicant's conduct was in breach of the Code which states that employees must “Never behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others”. Mr Benjamin also formed the view the Applicant's conduct was in breach of the Values, specifically those of Respect and Integrity.

• There was physical evidence of Allegation 4. Mr Benjamin did not accept the Applicant's claim he did not have a dog in his Camp room as photographs showed dog hair on the bed in his Camp room. Mr Benjamin also did not accept that the Applicant had permission to keep his dog at Camp as Ms Ammer at Civeo told Mr Benjamin that no Civeo receptionist had given this permission to the Applicant on either 17 or 18 November 2020. Given that it appeared that the Applicant had not been truthful about being granted permission to have his dog at Camp by a Civeo receptionist, Mr Benjamin concluded on the balance of probabilities that the Applicant also did not have permission from a Civeo security guard. Civeo employees refusing permission for BMC employees to have pets at Camp accords with his experiences at the Camp. Mr Benjamin formed the view that the Applicant was in breach of the Camp Code and Handbook which say that pets are not permitted.

• Mr Benjamin said the Applicant's evidence relating to Allegations 5 and 6, was insufficient to demonstrate he had not engaged in conduct inconsistent with the Code. The Applicant had no evidence that he visited T with permission on 17 and 18 November 2020 and had admitted that he did not have express permission to enter her room on one occasion. The Applicant also admitted that T was clearly upset by his presence in her room on 18 November 2020. Mr Benjamin formed the view that the Applicant's conduct was in breach of the Code. Mr Benjamin also formed the view the Applicant's conduct was in breach of the Values, specifically Respect and Integrity. Mr Benjamin formed the view the Applicant's behaviour breached the Handbook which says that Sexual harassment or behaviour that causes distress to guests, staff or visitors of any kind will not be tolerated and that employees who breach the Code or Values will be subject to an investigation which can include disciplinary action up to and including termination of their employment.

[121] On 22 January 2021, Mr Benjamin sent the Applicant a show cause letter stating that the investigation into the six allegations against him had concluded. The letter stated that the allegations against the Applicant, with the exception of the detail relating to his possession of a master key, had been substantiated. The letter stated that the Applicant was required to show cause why his employment should not be terminated. The letter gave the Applicant until 3:00pm on 25 January 2020 to provide a response to the show cause notice. Prior to sending this letter, Mr Benjamin had called the Applicant to explain to him its contents.

[122] On 24 January 2021, the Applicant sent Mr Benjamin an email requesting to have the deadline for his show cause response extended to 3:00pm on 5 February 2021.

[123] On 25 January 2021, Mr Benjamin replied to the Applicant's email stating that the deadline would be extended until 3:00pm on 29 January 2021.

[124] On 27 January 2021, the Applicant sent Mr Benjamin an email again requesting to have the deadline for his show cause response extended to 3:00pm on 5 February 2021. Mr Benjamin replied to the Applicant on the same day via email restating that the deadline would not be further extended.

[125] On 28 January 2021, the Applicant sent Mr Benjamin an email again requesting to have the deadline for his show cause response extended to 3:00pm on 5 February 2021. The Applicant also made requests for documents. Mr Benjamin said he replied to the Applicant on the same day via email re-stating that the deadline would not be extended further and that the Applicant had been provided sufficient information to be able to respond to the allegations.

[126] On 29 January 2021, the Applicant sent Mr Benjamin an email providing his response to the show cause letter.

[127] On 4 February 2021, Mr Benjamin sent an email to the Applicant asking him to provide any evidence he wanted Mr Benjamin to consider in support of his response to the show cause letter. Mr Benjamin stated that he requested a response by 2:00pm on 5 February 2021.

[128] On 4 February 2021, the Applicant sent Mr Benjamin an email which provided a further response to the show cause letter.

[129] On 5 February 2021, Mr Benjamin stated that he sent an email to the Applicant again asking him to provide any evidence he wanted Mr Benjamin to consider in support of his response to the show cause letter. Mr Benjamin again requested a response by 2:00pm on 5 February 2021.

[130] On 8 February 2021, the Applicant sent Mr Benjamin an email purporting to attach a document containing evidence and a further response to the show cause letter and allegations. Mr Benjamin stated that no document was in fact attached to the email.

[131] On 10 February 2021, the Applicant sent Mr Benjamin an email attaching a document containing evidence and a further response to the show cause letter and allegations.

[132] Mr Benjamin’s evidence was that he read all the material provided by the Applicant in his emails of 29 January, 4, 8 and 10 February 2021 in response to the show cause process (Show Cause Responses) and considered it when deciding whether or not to terminate the Applicant's employment.

Decision to Terminate

[133] On 21 February 2021, Mr Benjamin stated that he determined that in light of all the evidence that the Applicant had engaged in misconduct justifying dismissal. He made this decision because:

“• The Applicant had not provided evidence in response to Allegation 1 and 2 to alter my finding he was in breach of the… [Standard Operating Procedures], Code and Values.

• The Applicant had not provided evidence in response to Allegation 3 to alter my finding he was in breach of the Code and Values.

• The Applicant had not provided evidence in response to Allegation 4 to alter my finding he was in breach of the Camp Code and Handbook.

• The Applicant had not provided evidence in response to Allegation 5 and 6 to alter my finding he was in breach of the Camp Code, Handbook, Code and Values.

• The Applicant's substantiated conduct in Allegations 1 to 6 was in breach of various policies and procedures of BMC and BHP, including fundamental health and safety policies, which Applicant had been trained in repeatedly throughout the course of his employment.

• The Applicant had not provided sufficient reasons for why he should not be terminated and his Show Cause Responses indicated he did not understand the seriousness of his misconduct.”

[134] On 21 February 2021, Mr Benjamin sent a letter to the Applicant advising him that he had considered all his evidence and responses and that he had decided to terminate the Applicant’s employment due to his misconduct. Mr Benjamin stated that he advised the Applicant he would be paid in lieu of his notice period.

[135] Prior to sending the termination letter to the Applicant on 21 February 2021, Mr Benjamin called the Applicant to explain to him its contents.

Respondent’s Submissions

[136] The Respondent submits the dismissal was not unfair having regard to the factors in s.387 of the Act. The Respondent made submissions with respect of each of the matters, it says, constituted a valid reason for dismissal.

Operation of the vehicle

[137] The Respondent noted that the Applicant had received training on BMC Poitrel Standard Operating Procedure Using Mobile Plan (SOP Using Mobile Plant) when that version of the SOP, which introduced the 60 kilometre per hour limit, was rolled out in December 2017 and then, on two subsequent occasions. The Applicant did not dispute receiving this training. Further, the Applicant on his own evidence acknowledged the inherent risk of interactions with heavy vehicles on the mine site.

[138] The Respondent submits that the Applicant’s operation of the light vehicle, in which he was transporting two other employees at a speed of approximately 84 kilometres per hour, was in excess (and therefore a breach) of the 60 kilometres per hour speed limit imposed in the SOP Using Mobile Plant. Further, the Respondent submits, the Applicant’s operation of the vehicle was in an otherwise unsafe manner and in breach of the SOP, which requires employees to drive to conditions and to take account heavy vehicle blind spots when interacting with heavy vehicles.

[139] The Respondent states that the Applicant’s conduct also breached the BHP Code of Conduct, which requires employees to comply with all health and safety requirements and the Applicant’s obligation under the Coal Mining Safety and Health Act 1999 (Qld).

[140] The Respondent submits that the Applicant’s conduct was particularly serious given that coal mining is safety critical industry. In such an environment, it is imperative that employees comply with all safety obligations. Each obligation imposed on the Applicant with respect to the safe operation of a light vehicle on the mine site, was reasonable and appropriate given the safety critical nature of the industry and the particular risks associated with travelling above the maximum speed limit, and in an otherwise unsafe manner, without regard for the safety of others. Whilst there was no ‘near-miss’, the Applicant’s conduct was nevertheless inherently unsafe, and there was no reasonable justification for him to exceed the speed limit and drive unsafely. Accordingly, the Respondent submits that the misconduct was serious. The Applicant suggested that the conduct could not have been serious because Mr Benjamin did not suspend him immediately upon receiving the report from Mr Fahey and Mr Wilson. Mr Benjamin explained in cross-examination that it was necessary to gather evidence before taking any action. To the extent the Applicant claims that he did not exceed the speed limit intentionally, wilfully or with a malicious intent, this is irrelevant in circumstances where the Applicant’s conduct has put the safety of other employees in the workplace in jeopardy.

[141] For these reasons, the Respondent contends that the excessive speeding, coupled with the general operation of the vehicle in an unsafe way, was a valid reason for dismissal.

Obscene gesture

[142] The Respondent submits that the Applicant’s making of the “obscene gesture” to fellow employees in a passing vehicle was a breach of the Code which requires that employees never behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious, or humiliating to others and contributed to the Applicant operating the light vehicle in an unsafe manner in breach of the SOP Using Mobile Plant. The Respondent submits that it is irrelevant whether the individuals to whom the gesture was directed did not state that they were offended or insulted. It is sufficient that the gesture could be so perceived and as such, was a breach of the Code. Further, the Respondent rejected the Applicant’s assertion that it was a very common greeting in the mining industry or that it was like a “wave”.

[143] The Respondent states that the excessive speeding, coupled with the general operation of the vehicle in an unsafe way and the making of the obscene gesture, was a valid reason for dismissal.

Emergency ladder

[144] The Respondent submits that in operating RD17, in a manner which caused the emergency ladder to be damaged, the Applicant failed to properly visually inspect the area in which he was operating or, check RD17 at the conclusion of his shift. Accordingly, the Applicant was in breach of the SOP Inspecting Work Area. Further, the Applicant’s answers, both at the meeting on 1 December 2020 and in these proceedings, demonstrates that his approach to safety issues, when they concern his own conduct is to find reasons why the incident is not his responsibility.

[145] The Respondent submits that this was a factor that, in conjunction with the serious safety breaches detailed above, was taken into account in considering whether to terminate the Applicant’s employment.

Dog on site

[146] The Respondent states that by having his dog at the Village on 17 November 2020, the Applicant was in clear contravention of the Civeo Code of Conduct and the Handbook. The Respondent submits that the Applicant’s reasons for this contravention were implausible. In particular, the Respondent says, the Applicant’s assertions regarding there being another letter which instructed him to stay on site is an unbelievable story given that no evidence could be produced to support it. In those circumstances, the Respondent submits that Mr Benjamin’s evidence on this point should be accepted. That is, that the Applicant had not been instructed to remain at the Village either verbally by Mr Benjamin or in writing.

[147] The Respondent also submits that it should be noted and considered that the Applicant’s evidence with respect to whether the dog remained in his car or left the car had changed. Further, the Applicant’s statement that the dog had not gone in his room had been contradicted by evidence of animal hair and dog bedding therein.

[148] The Applicant maintained that he had permission to have his dog at the Village from an ‘admin lady’ and a security guard. The Respondent points to Mr Benjamin’s enquires of the Civeo accommodation manager which received a response to the effect that no Civeo reception employee had given permission to the Applicant to have his dog at the Village. The Respondent submits it was reasonable for Mr Benjamin to conclude as he did that, a security guard did not give permission either. The Respondent submits that the Applicant sought to side-step the issue by saying that he had no knowledge of the Village rules with respect to pets, going so far at one point to suggest, he had never seen or familiarised himself with the Village rules. The Respondent states this is inconsistent with his training record. Indeed, the Applicant’s assertion of unfamiliarity with the Village rules begs the question as to why the Applicant would suggest he had obtained permission to have his dog at the Village, if he had no familiarity with those rules. The Applicant sought to deflect that question by saying, he wanted to know what ‘the go with dogs’ was.

[149] The Respondent submits that this was considered in the decision made to terminate the Applicant’s employment.

Entering T’s room

[150] During the investigation, at a meeting on 15 December 2020, the Respondent put to the Applicant the allegation he had on two occasions, entered T’s room at Village, without her permission. Mr Benjamin did not accept the Applicant’s assertions that he had permission to enter the room. I do not propose to set out the various accounts again here. It is sufficient to say that the Respondent relies on the fact that, Mr Benjamin, having had the benefit of speaking with both the Applicant and T, accepted T’s evidence. He had preferred her version of events and had noted that she was visibly upset when she spoke to him.

[151] The Respondent submits, although the Commission has not had the benefit of hearing T give evidence, the Commission can safely rely upon Mr Benjamin’s judgment and conclude that the Applicant did not have T’s authorisation to enter her room, at the very least, on the second occasion. Accordingly, the Respondent submits that the Applicant’s conduct fell below the standard required by the relevant sections of the Code and Values.

[152] The Respondent submits that the Applicant’s conduct in respect of T, coupled with all the other occurrences within the four-day period, justified the Respondent’s decision to terminate the Applicant’s employment.

Reason for dismissal was fair, sound and defensible

[153] The Respondent submits the breach of safety obligation was a valid reason for dismissal. Further, the other breaches of policies and procedures – which occurred over a four-day period – demonstrate that the Applicant was not concerned with knowing or complying with safety procedures, or, being considerate of the welfare of fellow employees, and/or was prepared to disregard them. Further, the conduct demonstrated that, without any reasonable excuse, the Applicant was prepared to ignore safety rules and to make his own assessment as to whether compliance was required.

[154] The Respondent further submits that the dismissal was a fair and proportionate response to the Applicant’s failure to comply with the Respondent’s policies and procedures.

Procedural aspects

[155] The Respondent submits that the dismissal was conducted in a way that was procedurally fair having regard to the relevant matters in ss.387(b)-(g) of the Act. The Respondent rejects the Applicant’s assertion that the procedural aspect of the dismissal was deficient.

[156] In any event, the Respondent submits that the factors set out in ss.387(b)-(g), assist the Commission to determine whether the employer afforded the employee procedural fairness, in terminating their employment. Whether, in any given case, a person has been notified of the relevant matters which may form the reason for their dismissal and to which they are asked to respond, depends on all the circumstances of the case. The enquiry is not whether a procedure was perfect. Rather one must consider whether the procedure adopted was fair and reasonable and if, in all the circumstances, any practical injustice arose from the procedure adopted. 3 Generally, the approach of this Commission is to consider whether, in all of the circumstances, the employee knew what the allegations were and whether they were given a fair opportunity to respond.4 A dismissal will not be regarded as unfair because of flaws in the decision-making process, without regard to whether the conduct warranted dismissal.5

Notification and opportunity to respond

[157] The Respondent submits that the Applicant was informed of the allegations against him at the meetings on 1 December 2020 and 15 December 2020 and that on those occasions the allegations were put to the Applicant with sufficient particularity, to enable him to know what conduct is “putting his job at risk”. 6 The Respondent asserts that this is demonstrated by the fact the Applicant had no difficulty at either of those meetings in understanding and responding to the allegations.

[158] The Respondent further submitted that the Applicant was notified of the reason for his dismissal in the show cause letter dated 22 January 2021, and termination letter dated 21 February 2021.

[159] The Respondent acknowledges the Applicant’s complaint that the allegation he was travelling in the light vehicle at 84 kilometres per hour was a particular that was not put to him at the meeting on 15 December 2020. They accept that is true. However, they say, the Applicant became aware of, and had an opportunity to respond to the particularised allegation, as it was put in the show cause letter. Nonetheless, from the very beginning, the Applicant was on notice that he had been observed travelling in excess of the maximum speed limit.

[160] The Respondent stated that the Applicant was given a full opportunity to the allegations against him on 1 and 15 December 2020 and then, following the investigation, to each reason detailed in the show cause letter. The Applicant did so over nearly three weeks in various emails dated 29 January and 4, 8 and 10 February 2021.

[161] The Respondent asserts that the information requested by the Applicant to prepare his response was not information necessary to enable him to have a proper opportunity to respond. This was evidenced by the Applicant’s detailed responses to the show cause letter, which demonstrate that he was in no doubt as to the allegations being made against him and the conduct that was putting his job at risk, to which he had a proper and fair opportunity to respond.

No reasonable refusal of a support person

[162] The Respondent denies the Applicant’s claim that he was unreasonably denied a support person at the meeting on 1 December 2020. The Respondent accepts that the Applicant did not have support person with him at that meeting. However, they submit that Mr Benjamin had already re-scheduled the meeting to allow the Applicant to find a support person, that the request to reschedule it again was made just over an hour before it was due to commence and that Mr Benjamin offered to find someone at site to act as the Applicant’s support person but this was refused. The Respondent says it was not unreasonable for the Respondent to deny the Applicant’s request to further delay the meeting, nor was the Applicant unreasonably denied a support person. Further, the Respondent submits that the absence of a support person at the 1 December 2020 meeting did not compromise the Applicant’s overall opportunity to respond to the allegations made against him or be treated fairly. In other words, there was no practical injustice resulting from the absence of a support person at the 1 December 2020 meeting. Consequently, even if the Commission is satisfied that the Applicant was unreasonably denied a support person, this is but one factor to be considered and a procedural defect in the termination should not be given undue weight, especially where there is a sound reason for dismissal.

Other procedural considerations

[163] The Respondent submits that s.387(e) is irrelevant given that the dismissal did not relate to unsatisfactory performance. Further the fact that the Respondent is a large employer with dedicated human resource management specialists or expertise in the enterprise are either not relevant, or are neutral considerations for the Commission, in determining this matter.

Other relevant matters

[164] The Respondent reiterates that the Applicant’s misconduct was conduct in breach of reasonable workplace policies, and legislation, in a safety critical industry. As to the other matters raised by the Applicant, the Respondent made the following comments:

(a) the Applicant had only worked for the Respondent for four years during which time he had a significant periods of absence for personal reasons. Even in the case of a long and unblemished work history, a dismissal may not be unfair where the reason for the dismissal involves misconduct, particularly where the misconduct involves a failure to comply with health and safety requirements; 7

(b) the Applicant has not provided any evidence of the personal or economic impact of the decision;

(c) the Applicant’s assertions regarding the dismissal and the process taken to dismiss the Applicant as being retaliatory for the Applicant’s outspoken stance with respect to some safety matters is baseless. The Applicant’s attempts to speak up about safety played no part in Mr Benjamin’s investigation or his consideration of the matters that led to his decision to terminate the Applicant’s employment; and

(d) no evidence was provided to support the Applicant’s claims that other employees who have engaged in more serious misconduct than his own have not been dismissed so as to demonstrate that he was treated differently to others.

CONSIDERATION

Was the dismissal harsh, unjust or unreasonable?

[165] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[166] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 8

(a) whether there was a valid reason for the dismissal

[167] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 9 and should not be “capricious, fanciful, spiteful or prejudiced.”10 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. It is not sufficient that the employer believed, on reasonable grounds that the employee was guilty of the alleged conduct. 11

[168] I am not satisfied that the allegations made against the Applicant in respect of the bent ladder, the “obscene gesture” or the bringing of his dog on the site, even if made out, justify the termination of his employment. That is particularly so given the short period of time in which it occurred, the heightened emotional state the Applicant was then in, given the circumstances of his relationship with T and his otherwise clean employment history.

[169] With respect to the Applicant’s visits to T, I will make a couple of brief comments. Clearly the Applicant and T had a close and complex relationship, made more difficult by the circumstances in which they found themselves. Emotions were high. They were both coming to terms with the termination of a pregnancy and the ending of their relationship. I am not satisfied that the facts as put in this case and the allegations of breach of the Respondent’s policies and procedures in respect of this incident are, on the balance of probabilities, made out to justify the termination of the Applicant’s employment.

[170] In my view, determining whether there was a valid reason to terminate the Applicant’s employment in this case turns solely on whether the Applicant was operating the vehicle in breach of the Respondent’s procedures and in an unsafe matter. I accept the Respondent’s evidence that the Applicant was travelling approximately 24 kilometres per hour over the site speed limit. That is not an insignificant speed. While there were no incidents or near misses arising out of the Applicant’s conduct, I accept that these speed limits are imposed to maintain the safety of employees in a high risk environment and that by travelling some 20 kilometres over the speed limit, the Applicant was in breach of the Respondent’s safety standards and that this breach was serious. While the Applicant gave evidence that he had previously been complimented by management on his ability to drive “efficiently” (that is, in excess of the speed limit) in a mock-emergency scenario, I do not accept that any such comment, if it had been made, had any bearing on whether the Applicant’s conduct was a breach of the Respondent’s procedures in the relevant circumstances. There was no suggestion that there was any emergency that justified the Applicant driving approximately 24 kilometres per hour faster than he ought to have been on the day in question.

[171] It seems the Respondent has sought to bundle the issues with respect to the ladder, the dog and T with the speeding issue in an effort to have enough material to constitute, in their minds and perhaps to an outside observer, a valid reason to dismiss the Applicant. The investigations conducted into these other issues were clearly lacking. The suggestion by Mr Benjamin that the Applicant used a master key had not been abandoned when he gave evidence, despite no such evidence being uncovered in the investigation. 12 In respect of the dog incident, there were clearly other people Mr Benjamin could have asked for information before being in a position to accept or reject the Applicant’s version of events. It may be that the other witnesses would have supported Mr Benjamin’s conclusion, but perhaps they may not have. In any event, the lack of inquiry – and the willingness to conclude that the Applicant was being untruthful – caused me concern. Further, the purported reliance on the damage to a ladder and an apparently rude hand gesture to other employees to justify the termination of an individual’s employment seems completely disproportionate. These peripheral issues seemed to be relied upon more to discredit the Applicant than to actually justify the decision to dismiss him from his employment. The Respondent’s closing submissions properly emphasised that the driving allegation was the most significant of the Applicant’s conduct. In my mind, that is the sole valid reason.

[172] Despite my concerns about the investigation conducted and the grounds relied upon, I am satisfied that the safety breach is significant and is, of itself, a valid reason for termination. Mine sites have strict safety policies because it is an environment that can and does pose significant risks that must be managed through appropriate policies and procedures. Driving at excessive speed in a light vehicle without any mitigating factors being put forward justifies the Respondent’s decision to terminate of the Applicant’s employment.

(b) whether the person was notified of that reason

[173] Based on the evidence provided and submissions made, I am satisfied that the Applicant was notified of all the reasons the Respondent sought to rely on to justify his dismissal. I accept that when the allegation of speeding and unsafe operation of the vehicle was first put to the Applicant, the speed at which the Applicant’s vehicle was said to be driving was not particularised. While it may have been best practice to do so, I am satisfied that the Applicant was made aware of the allegations in sufficient detail to respond.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[174] I am satisfied on the evidence detailed above that the Applicant was given an opportunity to respond to each of the allegations.

[175] There may be a question as to whether the Applicant’s responses were taking seriously and further investigated as they should have been by Mr Benjamin, particularly in respect of whether the Applicant received authorisation to have his dog on site and in respect of the allegations relating to T. I also do not think that the withholding of the requested information deprived the Applicant of the ability to adequately respond to the allegations against him. Notwithstanding those comments, the Applicant was aware of the allegations against him and was afforded and opportunity to respond to them in detail.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[176] I accept the Applicant’s submissions that he was unreasonably refused a support person. The Applicant indicated to Mr Benjamin that he wished to have a support person present. The meeting was delayed by four hours to allow the Applicant time to find such a person.

[177] When the Applicant indicated that he had been unable to do so, Mr Benjamin refused to reschedule. He offered to find someone from the Respondent to act as a support person, but given the Applicant’s impression of the events, I can understand why he did not wish to do so. There was no good reason why the meeting could not have been rescheduled to the following morning, as proposed by the Applicant, to allow him more time to obtain a support person.

[178] While I view this favour as being in favour of the Applicant’s application, I am mindful of the authorities presented by the Respondent which provide that this factor should not be given undue weight in circumstances where there is a valid reason for termination.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[179] This factor is not relevant.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[180] The Respondent had the benefit of being a large organisation with dedicated human resource personnel.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[181] This factor is not relevant, except insofar as to state that the investigation which took place in respect of the damaged ladder, the dog onsite and the allegations with respect to T and the hand gesture fall short of that which would ordinarily be expected of an organisation that has a dedicated human resource function such as the Respondent.

(h) any other matters that the FWC considers relevant

[182] I have considerable sympathy for the Applicant given how the investigation was conducted and the manner in which he was stood down without pay for several months pending a mental health examination. However, given the hypervigilance with respect to safety that is required on a mine site, and the Applicant’s conduct of driving at a speed 24km/hour in excess of the speed limit, I am satisfied that the termination was not harsh, unjust or unreasonable.

[183] Though not strictly relevant to these proceedings, it is worth noting that the Applicant’s assertions with respect to his having been stood down without pay following him making an Ethics Point report will be a matter for another tribunal or court to determine, if the Applicant chooses to pursue them.

Conclusion

[184] I have made findings in relation to each of the criteria in s.387 of the Act, as relevant and find that the Applicant was dismissed in accordance with the legislative requirements.

[185] I order that the Applicant’s unfair dismissal application be dismissed.

DEPUTY PRESIDENT

Appearances: The Applicant was self-represented. A Coulthard, instructed by Herbert Smith Freehills, appeared for the Respondent.

Hearing details: 19 July 2021, Mackay Court House

Final written submissions: The Respondent filed written closing submissions on 20 August 2021. The Applicant was given until 31 August 2021 to provide closing submissions, but no further submissions were received.

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009 (Cth) s.396.

2 Grieve v BHP Mitsui Coal Pty Ltd[2021] FWC 4075.

3 See e.g., Kioa v West (1985) 159 CLR 550, 562-563; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13-14.

4 See, e.g., Schaale v Hoechst Australia Limited (1993) 43 IR 249, 252.

5 Byrne v Australian Airlines Limited (1985) 185 CLR 410. See also Crozier v Australian Industrial Relations Commission [2001] FCA 1031.

6 Gibson v Bosmac Pty Limited (1995) 60 IR 1, 7.

7 Rust v Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad [2018] FWC 2676; Sicolo v Accolade Wines Australia Limited T/A Accolade Wines[2015] FWC 5920; Crowley v Qantas Airways Limited [2014] FWC 5587 at [54] – [56]; McCarthy v Woolstrar Pty Ltd [2014] FWC 1186.

8 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].

9 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.

10 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371.

11 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

12 When asked about whether he still held the view that key was used at the hearing, Mr Benjamin stated, “I still considered there could be a master key. I can't prove it, though.” He went on to say if the Applicant did not have a master key, he may have had a separate key to T’s room.

Daniel Grieve v BHP Mitsui Coal Pty Ltd

[2021] FWC 5913

14 SEPTEMBER 2021

DECISION