David McLachlan v Illawarra Coal Holdings Pty Ltd T/A South32
[2017] FWC 5167
•10 NOVEMBER 2017
| [2017] FWC 5167 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David McLachlan
v
Illawarra Coal Holdings Pty Ltd T/A South32
(U2017/4496)
COMMISSIONER CAMBRIDGE | SYDNEY, 10 NOVEMBER 2017 |
Unfair dismissal - dismissal based upon alleged misconduct arising from organisation of unlawful industrial action with consequential reputational damage to employer - further alleged dishonesty and lack of trust and confidence - industrial activity not unprotected industrial action - no contemplation of representational role of employee - absence of genuine objectivity in considerations of employer - no valid reason for dismissal - harsh, unjust and unreasonable dismissal - reinstatement Ordered.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by David Charles McLachlan (the applicant). The respondent employer is Illawarra Coal Holdings Pty Ltd T/A South32 (ABN 69 093 857 286)(the employer or South32).
[2] The application was filed with the Fair Work Commission (the Commission) on 26 April 2017, and the applicant has been represented by Slater and Gordon lawyers. On 15 May 2017, King & Wood Mallesons lawyers, filed a Notice of Representative Commencing to Act, and a response (Form F3) made on behalf of the employer.
[3] The application indicated that the date the applicant’s dismissal took effect was 19 April 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[4] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Commission in a Hearing conducted at Wollongong on 7 and 8 September and at Sydney on 14, 15 September, and 10 October 2017. Prior to the commencement of the Hearing, the Commission granted permission pursuant to s. 596 of the Act, for either Party to be represented by lawyers or paid agents.
[5] At the Hearing, Mr A M Slevin, of Counsel, appeared for the applicant. The applicant and two further witnesses were called to provide evidence in support of the claim.
[6] The employer was represented by Mr C O’Grady of Queens Counsel, together with Mr B Rauf of Counsel. Mr O’Grady introduced evidence from three witnesses, each of whom were cross-examined on the material that they provided on behalf of the employer. In addition, Mr O’Grady introduced a witness statement from another individual who was not required for cross-examination.
Factual Background
[7] The applicant is a man of some 50 years of age and he had worked for the employer and its predecessors for about 17 years. The applicant’s work can be broadly described as that of an underground coal miner. The applicant worked in a position described as Technician Mechanical, and he holds trade qualifications as a Fitter and Machinist. The applicant performed work at the South32 Appin Colliery which is located in the Illawarra region of New South Wales.
[8] South32 is a global commodity company which is predominantly engaged in base metal and coal mining. South32 has headquarters in Perth, Western Australia, and it has operations at various sites in Australia, Colombia, South Africa, Brazil and Mozambique. Relevantly, there are in excess of 900 employees engaged in connection with the South32 coal operations in the Illawarra region.
[9] The applicant has been a member of the Construction, Forestry, Mining and Energy Union (CFMEU) since he commenced working in the black coal mining industry in 1989. In November 2016, the applicant became President of the local CFMEU Lodge at the Appin Colliery. The applicant had previously been the local CFMEU Lodge President at the West Cliff Colliery for about 10 years. During 2016, the West Cliff Colliery integrated operations with the Appin Colliery. The applicant had also held a position as a member of the Central Council of the Mining and Energy Division of the CFMEU for approximately 7 years.
[10] On 5 January 2016, the Commission approved the Appin Colliery & West Cliff CPP Enterprise Agreement 2015 (the EA), which is the relevant, applicable industrial instrument. The applicant was a member of the bargaining team which negotiated the EA. At around the time of the approval of the EA, the local CFMEU Appin and West Cliff Lodges amalgamated.
The Historical Regulation for Work Clothing
[11] For many years the industrial instruments which covered the West Cliff Colliery included terms which established an entitlement for employees to be provided with work clothing, the laundering of which was the responsibility of “the Company”. For example, clause 26 of the West Cliff Colliery Workplace Agreement 2008 was in the following terms:
“26. Protective Clothing
Annually, full-time Employees will be provided with six (6) units as per the Company clothing form and every second year an additional two (2) units which may either be directed towards clothing or a dress/underground jacket.
Two (2) sets of thermal underwear will be provided annually to Employees who work in the following areas on a permanent basis:
I. Pit Bottom;
II. Dolly Car;
III. The CHPP; and
IV. Workshop Employees, yard employees and Surface electricians.
Shirts, trousers and overalls which are provided under this Clause will be laundered on a weekly basis.
Fixed term, part-time and casual Employees will receive six (6) units of clothing on the commencement of employment. Additional issues of clothing will be determined by the Company.”
[12] An earlier example of similar provisions can be found at clause 38 of the West Cliff Colliery, Certified Agreement 2004 which is in the following terms:
“38. Protective Clothing and Equipment
38.1 Full time employees will be provided with 2 sets of clothing per year and shall receive one winter (dress/underground) jacket every two years. Safety footwear will be issued on a replacement basis.
38.2 Two (2) reflective t-shirts will be provided to employees who are deemed to be working in high humidity areas
38.3 Two set's of thermal underwear will be provided for employees who work in the following areas on a permanent basis;
• Pit Bottom
• Dolly Car and
• The Washery
• Workshop employees and surface electrician
38.4 Overalls will be laundered on a weekly basis.
38.5 Thermos flasks will be replaced on an 'as needs' basis. Thermos Flasks will be provided to all Endeavour Coal employees if hot water is unavailable in their workplace.
38.6 Clothing for Fixed Term Employees
Fixed term employees will receive pro-rata payment in lieu of clothing, based on the number of months worked in a calendar year. If the contract of employment is greater than 6 months they will be given the pro rata points allocation in lieu of the payment.”
[13] The industrial instruments that have historically applied at the Appin Colliery did not provide entitlements in respect to the provision and laundering of work clothing that were similar to those applicable at the West Cliff Colliery. For example, clause 37 of the BHP Illawarra Coal Appin Colliery Certified Agreement 2001 is in the following terms:
“37. PROTECTIVE CLOTHING
On an annual basis each employee shall receive industrial clothing from the Company, without charge, in accordance with the items available in the "points" based system in operation at the time.
In addition , each employee shall receive one winter jacket every two years.
If an employee damages their industrial clothing in the course of duties, upon authorisation from their Co-Ordinator, the clothing will be replaced.”
[14] As a result of the different historical arrangements for the provision and laundering of work clothing that applied respectively at the West Cliff and Appin Collieries, the bargaining for the EA that would apply to the recently integrated operations of both sites, included as an issue of some significance, the arrangements regarding provision and laundering of work clothes. In this context, as part of reaching overall agreement in the bargaining for the EA, the following terms of clause 12 were included:
“12 PROTECTIVE CLOTHING
Appropriate industrial clothing and safety footwear will be provided and is to be worn at all times whilst performing work at the Site, unless otherwise directed.
A laundry service enabling clean clothes on a daily basis will be provided at no charge to Employees for all Employees by July 2016.”
The Laundry Dispute
[15] By July 2016, South32 had not established a laundry service in accordance with the requirements of clause 12 of the EA. During the second half of 2016, there was increasing disquiet amongst the local CFMEU representatives and the members that they represented, concerning the ongoing absence of the provision of a laundry service in accordance with the obligations imposed upon South32 under clause 12 of the EA. In the latter part of 2016, various meetings were held between local CFMEU representatives and relevant South32 managers during which the ongoing absence of the provision of the laundry service was repeatedly raised as a matter of recorded complaint.
[16] On 2 December 2016, the relevant South32 manager sent an email to the applicant as the most senior CFMEU site representative, which advised that in recognition of the absence of the laundry service, South32 would make a payment of $150 per affected employee when the laundry service was implemented and this was scheduled to be in January 2017. The laundry service did not commence in January 2017, and on 20 January 2017, the relevant South32 manager sent another email to the applicant which advised, inter alia, that the implementation of the laundry service was not likely to occur before late February 2017, and that the one-off annual payment of $150 may be increased to an annual maximum of $450 upon provision of proof of costs associated with laundering of work clothing.
[17] The propositions that had been made by South32 to address the ongoing absence of the provision of a laundry service did not satisfy the CFMEU. Consequently, on 17 February 2017, the CFMEU made application under s. 739 of the Act for the Commission to deal with the dispute that had arisen about the absence of the laundry service, and any agreed alternative arrangements to deal with that absence.
[18] On 1 March 2017, Dean DP conducted a conference to deal with the dispute application that had been filed by the CFMEU. During the dispute proceedings held on 1 March 2017, the CFMEU proposed an alternative arrangement to address the ongoing absence of the laundry service which involved a payment on a weekly basis for all weeks that the laundry service was not provided. The dispute proceedings in the Commission were adjourned on the basis that South32 would provide a response to the CFMEU proposition by 6 March 2017.
[19] On or about 3 March 2017, South32 entered into a contract for the provision of a laundry service. The execution of the laundry service contract on 3 March 2017 was not disclosed to the CFMEU at around that time or at any time shortly thereafter. Apparently, the South32 managers who were engaged in negotiating with the CFMEU about the laundry service dispute were not informed about the execution of the laundry service contract.
[20] On 6 March 2017, the relevant South32 manager sent an email to the CFMEU which responded to the CFMEU proposition that had been advanced during the conference held before Dean DP. In summary, South32 rejected the weekly payment that had been proposed by the CFMEU, and instead it modified its position and proposed a one-off payment of $420 per employee without any requirement for evidence of laundry costs incurred by an employee. The response provided by South32 was considered by relevant CFMEU representatives including the applicant, and it was strongly rejected.
The Undies Protest
[21] On the afternoon of 6 March 2017, the applicant decided that in response to what was considered to be an unacceptable position adopted by South32, he would arrange for a protest to be conducted on the following morning at the Appin Colliery site. The protest that the applicant organised has been described as an “undies protest” and it involved employees dressing only in their underwear rather than usual work clothing. By way of explanation, a protest of this nature had been conducted in 1995 at the West Cliff Colliery, and photographs of the miners in their underwear were reproduced in a PowerPoint presentation used by South32 in late 2015 as part of its communications to employees regarding the integration of the Appin and West Cliff Collieries.
[22] On the afternoon and evening of 6 March 2017, there were social media communications advising CFMEU members employed at the Appin Colliery about the proposed undies protest for the following morning. On 7 March 2017, the applicant arrived at the site at about 5:15 am and he commenced to organise the undies protest.
[23] The dayshift ordinarily commences at 6:00 am when a brief (approximately five minutes) pre-start meeting is held in the muster room. On 7 March 2017, there was a scheduled communication session that would start immediately after the completion of the pre-start meeting. The communication session on 7 March was the first that would be addressed by the recently appointed Operations Manager, Mr Wheatley. This communication session was also the first to be implemented following the restructuring of the Appin mine and it would involve providing employees with updates about business objectives and performance, as well as the presentation of awards which recognised particular service or performance of employees. As an enhancement associated with this “first” communication session, Mr Wheatley had arranged for a barbeque to be cooked by managerial staff and served to employees prior to the start of dayshift.
[24] Consequently, as employees arrived for work, those that participated in the undies protest did not get changed into their usual work attire, but instead wore only underwear when they went firstly to the barbeque, and then subsequently to the pre-start meeting. Although the applicant was not rostered to work on the dayshift of 7 March, he participated in the undies protest and undressed down to his underwear and attended the pre-start meeting.
[25] The pre-start meeting was addressed by the Mine Undermanager, Mr Horsfield, who noticed that there were various individuals who were dressed only in underwear. At the end of the pre-start meeting, Mr Horsfield advised the assembled employees that they could not go underground unless they were fully dressed.
[26] After the completion of the pre-start meeting the employees were required to leave the muster room and walk a short distance to the training room where the communication session would then commence. At this point the applicant led a group of employees to an area under a nearby tree where he conducted a meeting of the group. During the pre-start meeting and the meeting conducted under the tree, various photographs of the miners in their underwear were taken and these photographs were subsequently conveyed to local media outlets.
[27] As the applicant was conducting the meeting under the tree, Mr Wheatley noticed the assembled group. The employees who had assembled in the meeting under the tree were required in the training room so that the communication session could begin. Mr Wheatley commenced to walk towards the group who were being addressed by the applicant under the tree, and at this point in time the group disbanded and walked to the training room.
[28] The meeting that the applicant conducted under the tree delayed the commencement of the communication session by approximately 5 to 10 minutes. Mr Wheatley then conducted the communication session whilst various employees who were in attendance were dressed in only their underwear. Mr Wheatley presented one particular employee with a performance recognition award whilst that employee was dressed only in his underwear.
[29] The communication session concluded at approximately 7:30 am, and the employees that had not participated in the undies protest and were fully dressed, commenced to board the train that takes personnel underground. The employees who had participated in the undies protest went to the bathhouse and put on their work clothing so that they could subsequently board the train once it had returned from its initial journey underground.
[30] The applicant changed back into his regular attire and he left the Appin Colliery site at about 7:30 am. Later that afternoon photographs and reports of the undies protest appeared in local media publications, and the applicant was extensively quoted in these publications. Management of South32 became aware of the publicity that had developed regarding the undies protest, and it was decided that an investigation into the undies protest and related events of 7 March, would be commenced.
Investigation into the Undies Protest
[31] On 9 March 2017, the applicant was telephoned by Mr Wheatley and advised that he was suspended from work on full pay pending the employer’s investigation into the undies protest and related events of 7 March. This advice was subsequently confirmed in writing in a notice of investigation letter which particularised a number of allegations that were raised against the applicant in connection with his activities on 7 March 2017 in relation to the protest action. This letter also advised the applicant that he was required to attend an interview with South32 management representatives on 15 March 2017.
[32] On 15 March 2017, the applicant attended a meeting with Mr Wheatley and other South32 managers who were investigating the events of the morning of 7 March 2017. At this meeting the applicant was accompanied by the CFMEU South Western District Vice President, Mr Bob Timbs. During this meeting, the applicant provided answers to a series of questions regarding his activities associated with the conduct of the protest action, and the subsequent media publicity that the event had attracted.
[33] During the period between about 9 March and 5 April 2017, the relevant South32 managers conducted an investigation into the events of 7 March 2017. The investigation included numerous interviews with various managerial and other staff that were present at the Appin Colliery at the time of the protest action.
[34] Around 14 to 17 March 2017, South32 sent letters to 23 employees that it had been able to identify as participants in the undies protest. These letters advised that South32 had determined that participating in action which involved a failure to present for work in the required clothing and which delayed the shift communication session, constituted unprotected industrial action. Further, the letters to these 23 identified employees advised that South32 had a legal obligation under s. 474 of the Act, to deduct a minimum of four hours pay and that that deduction would be made from the particular employee’s current weekly pay.
[35] On 5 April 2017, Mr Wheatley sent the applicant a show cause letter which advised, inter alia, that a series of preliminary findings had been made in respect to the applicant’s conduct associated with the protest action of 7 March 2017. In particular, these preliminary findings included that the applicant had coordinated a protest that constituted unlawful, unprotected industrial action, and that he had facilitated the publication of the protest in the media which caused South32 reputational damage. Further, this correspondence advised that South32 was considering terminating the employment of the applicant in view of the particularised preliminary findings that it had made, and therefore, the applicant was invited to provide any written response as to why his employment should be continued.
[36] By way of a letter dated 10 April 2017, the applicant mentioned a number of particular circumstances and matters that he believed should dissuade Mr Wheatley from any decision to terminate his employment.
[37] The representations made by the applicant were unsuccessful, and Mr Wheatley sent a letter dated 19 April 2017, which advised the applicant that his employment had been terminated for reason of his conduct as had been detailed in the earlier show cause letter. The conduct of the applicant was held to have been unlawful and damaging to South32, both “publicly and in terms of its relationship with its employees.” The letter of dismissal further advised that the applicant’s conduct had caused South32 to lose confidence in the applicant’s ability to abide by his obligations as an employee with respect to particular policies and codes of conduct promulgated by South32, and in respect to the EA. The employment of the applicant was terminated with immediate effect, but payment was made in lieu of notice together with any outstanding accrued entitlements.
[38] Following the dismissal, the applicant has secured some alternative employment. However, this alternative employment does not provide a level of remuneration commensurate with that gained in employment with South32 and to which he seeks to be reinstated.
[39] In May 2017, the laundry service was fully implemented in accordance with the obligations of clause 12 of the EA.
The Case for the Applicant
[40] Mr Slevin, who appeared for the applicant, made verbal submissions in addition to documentary material that had been filed. Mr Slevin submitted that the dismissal of the applicant which was for reasons associated with his conduct on 7 March, and the investigations that followed, was harsh, unjust and unreasonable.
[41] The submissions made on behalf of the applicant were framed with reference to the factors contained in s. 387 of the Act. In particular, Mr Slevin made submissions which focused upon paragraphs (a) and (h) of s. 387 of the Act, whereby it was asserted that there was no valid reason for dismissal of the applicant (s. 387 (a)), or alternatively, even if there was valid reason for dismissal, it was otherwise harsh.
[42] The submissions made by Mr Slevin asserted that the conduct of the applicant on 7 March 2017 was not unlawful, nor did it cause damage to South32, either publicly or in terms of its relationship with its employees. Further, it was submitted that the conduct of the applicant on 7 March 2017, could not have caused South32 to lose confidence in the applicant’s ability to abide by his obligations as an employee and in respect to the employer’s policies. Mr Slevin also noted that the applicant had an unblemished employment record and that South32 had treated others involved in the protest activity with substantially less severity than was applied to the applicant. Consequently, it was submitted that the reason for the dismissal of the applicant was not a valid reason.
[43] It was further submitted that when the various aspects of the reasons for the dismissal of the applicant were properly evaluated, the dismissal could not be said to have been based on a reason that was sound, defensible and well-founded. In particular, it was submitted that the punishment of dismissal was disproportionate to the conduct of the applicant. Consequently, it was submitted that the disproportionality of the punishment of dismissal further reinforced that there was no valid reason for the dismissal of the applicant.
[44] The submissions made on behalf of the applicant did not raise contest about those factors that are identified from paragraphs (b) to (g) of section 387 of the Act. There was no contest that the applicant was notified of the reason for his dismissal, and that he was given an opportunity to respond to the reasons for which he was dismissed. Further, there was no issue taken that the applicant was unreasonably refused the assistance of a support person. In addition, there was no submission made on behalf of the applicant that any relevance should be placed upon the size of the employer’s enterprise or the absence of any dedicated human resources specialists.
[45] Mr Slevin made submissions with reference to s. 387 (h) of the Act which raised other factors that were said to be relevant to any determination of the unfair dismissal claim. It was submitted that even if the Commission found that there was valid reason for the dismissal of the applicant, a series of other factors, when properly weighed, meant that the dismissal was harsh.
[46] In this regard it was submitted that the following factors were relevant to establish that the dismissal was harsh: (a) the applicant had 27 years’ service in the coal industry; (b) he had an unblemished record as an employee; (c) the protest action was a response to the employer’s failure to meet its obligations under the EA; (d) the protest action was measured; (e) there had been a similar protest action about 20 years earlier which had been used by the employer in its own presentation to its workforce; (f) others that were involved in the protest action were not dismissed; (g) the applicant is the main breadwinner for his family and he has dependents; (h) the applicant is unlikely to find work elsewhere in the coal mining industry; (i) the applicant has been unable to find alternative employment with commensurate remuneration.
[47] Mr Slevin made further submissions which elaborated upon the written submissions which had been filed on behalf of the applicant. Mr Slevin challenged that the protest action of 7 March was unprotected industrial action. Mr Slevin made submissions which referred to the definition of industrial action found at section 19 of the Act. In particular, Mr Slevin submitted that subsection 19 (2) (a) applied to the circumstances of the protest action of 7 March 2017, because, he said, the managers at the time of the protest did not say or do anything to challenge the conduct of the applicant or the other employees participating in the protest action.
[48] The submissions made by Mr Slevin asserted that South32 management had initially taken no steps to challenge the protest action but had subsequently elevated the seriousness of the conduct only once the protest had become the subject of media reports. Mr Slevin submitted that the nature of the response by South32 to the protest action of 7 March developed into an overreaction, such that when the conduct of the applicant was considered in totality, the dismissal of the applicant amounted to a punishment that did not fit the crime.
[49] Mr Slevin made further submissions about the alleged lack of honesty and/or frankness that was attributed to the applicant’s answers provided to South32 management during the investigation into the protest action. Mr Slevin submitted that the applicant had not been dishonest or disingenuous with any of the answers that he provided to South32 management. Mr Slevin said that the applicant had provided expansive answers to all questions that were asked of him during the investigation process.
[50] Mr Slevin also made submissions which were critical of the evidence provided by Mr Wheatley. It was submitted that the evidence provided by Mr Wheatley was unimpressive and that it was clear that he did not initially regard the protest as a matter of any great seriousness. It was further submitted that the evidence provided by Mr Wheatley concerning a discussion that was said to have been initiated by Ms Foodey on the morning of 7 March, could not be believed. In this regard, Ms Foodey had no recollection of a discussion with Mr Wheatley after the protest action during which she was alleged to have raised concern about the protest action, indicating that she had been shocked by the event and wanted something done about it because it was not acceptable. According to the submissions made on behalf of the applicant, Mr Wheatley made this conversation up as support for the subsequent seriousness that he attached to the protest action.
[51] Further submissions made by Mr Slevin addressed the question of the remedy sought by the applicant. Mr Slevin submitted that the applicant should be provided with a remedy of reinstatement, and ancillary Orders for back pay and continuity of service. Mr Slevin rejected any suggestion that reinstatement of the applicant was inappropriate. Mr Slevin noted that there were over 900 employees and that it was unlikely that the applicant would have any direct contact with Mr Wheatley. Mr Slevin also submitted that the applicant had recognised the inappropriateness of the protest action, and he was prepared to apologise to anyone who was offended by it, and, further, he would not be involved in activities of that nature in the future. Mr Slevin submitted that there was no basis for concern that the employment relationship could not be properly re-established.
[52] Mr Slevin submitted that the applicant had endeavoured to mitigate his loss, and he successfully obtained other employment. However, the alternative employment obtained by the applicant provided substantially less remuneration.
[53] In conclusion, Mr Slevin summarised that the dismissal of the applicant was unfair as it had been based on a reason that was invalid. Further, Mr Slevin argued that even if there was valid reason for the dismissal of the applicant, various other aspects of the circumstances surrounding the events of 7 March 2017, and other factors involving the personal circumstances of the applicant meant that the decision to dismiss him was harsh. Mr Slevin urged that the Commission find that the dismissal of the applicant was unfair, and that it would be appropriate for the applicant to be reinstated to his former position, with no loss of continuity and payment of lost remuneration.
The Case for South32
[54] South32 was represented by Mr O’Grady QC, who submitted that the dismissal of the applicant was not unfair. Mr O’Grady made verbal submissions which elaborated upon extensive documentary material that had been filed on behalf of South32.
[55] The submissions made by South32 focused upon the applicant’s role in organising and engaging in the protest action that occurred at the Appin Colliery on 7 March 2017. It was submitted by South32 that the applicant had engaged in unlawful industrial action in breach of the EA, and as part of an attempt to influence the position of South32 as had developed during the conciliation that was being conducted before Dean DP. South32 submitted that the protest action that occurred on 7 March 2017, was unprotected industrial action for which it was obliged to deduct four hours pay from employees who had participated in the protest event.
[56] Further, South32 submitted that the applicant and the CFMEU had made public statements which misrepresented the true circumstances surrounding the laundry service dispute, and the protest action that was taken on 7 March 2017. It was submitted that the public statements made by the applicant were damaging to the reputation of South32.
[57] South32 submitted that the actions of the applicant which involved the organisation and participation in the protest action and the subsequent public statements that were made represented valid reason for the termination of the applicant’s employment. South32 further submitted that dismissal was not a disproportionate outcome when one had regard for the consequences of the applicant’s conduct which included: (a) delay to the commencement of the communication session; (b) disruption to the communication session; (c) delay to the commencement of coal extraction work; (d) exposure of employees who were not participating in the protest action to the spectacle of their work colleagues parading around in a state of undress; (e) an undermining of management at the site; (f) the generation of images that damaged the reputation of South32; and, (g) the creation of a requirement for South32 to deduct four hours pay from employees who participated in the protest action.
[58] Therefore, it was submitted by South32 that the actions of the applicant in respect to the protest action, being unprotected industrial action, and the subsequent statements that were publicly damaging to South32, represented valid reason for the dismissal of the applicant. It was further submitted that South32 did not terminate the employment of anyone other than the applicant because his role was that of primary organiser and instigator of the protest, and the unprotected industrial action that it involved.
[59] The submissions made by South32 also involved an assertion that the conduct of the applicant during the investigation process that was undertaken into the protest action, established valid reason for his dismissal. In this regard it was noted that the applicant had: refused to identify those who had participated in the protest action; he refused to identify the employees who had taken photographs at the time; he misrepresented that the meeting that took place under the tree was spontaneous; he misrepresented that employees who attended the communication session in their underwear did so upon a misunderstanding rather than with intent; he denied knowledge of the social media notification of the protest action; and, he denied responsibility for media contact about the protest action.
[60] Therefore, according to the submissions made by South32 the applicant had not been honest during the investigation and his dishonesty and/or prevarication during the investigation meant that South32 could not be confident that the applicant would be honest in the future. It was submitted by South32 that the applicant’s failure to be completely honest and candid during the investigation process provided further valid reason for the termination of his employment.
[61] In addition, the submissions made by South32 rejected that there were other factors relevant to the circumstances of the applicant, which could establish that the dismissal was harsh. In particular, the submissions made by South32 rejected that the length of service of the applicant, and associated personal factors, rendered the dismissal to be harsh. Further, it was submitted by South32 that there was no differential treatment that applied in respect of the dismissal of the applicant compared with other disciplinary action taken against other employees in connection with the protest action of 7 March 2017.
[62] Mr O’Grady made oral submissions which expanded upon the documentary material that had been filed on behalf of South32. Mr O’Grady made submissions which challenged the credibility of the applicant. In this regard Mr O’Grady referred to the evidence provided by the uncontested witness statement of Mr Horsfield. Mr O’Grady submitted that the Commission had to accept the unchallenged evidence of Mr Horsfield. Consequently, according to the submissions made by Mr O’Grady, this meant that the relevant contradictory evidence provided by the applicant about issues such as whether Mr Horsfield chuckled when he saw the men in their underwear, and whether the applicant had advised him of the intention to hold a short meeting under the tree, should be rejected as being false evidence provided by the applicant.
[63] Mr O’Grady further submitted that it was a “huge stretch” to suggest that because Mr Horsfield had not taken immediate action to rectify the protest action, this somehow established that the action was condoned, or approved, or acquiesced to by South32. Mr O’Grady submitted that the evidence did not establish that the actions of Mr Horsfield or other South32 managers, constituted conduct of the type that would fall within subsection 19 (2) (a) of the Act.
[64] Mr O’Grady made further submissions which rejected that any of the actions of South32 management could be properly construed as providing for authorisation or agreement for the protest action. Mr O’Grady stated that there was a clear requirement for employees to be properly attired when attending for work and the idea that turning up to work in your underwear would not represent industrial action was novel and surprising. Consequently, Mr O’Grady submitted that it was an unrealistic proposition to suggest that the absence of any immediate objection by particular managers to the protest action operated so as to avoid any characterisation of the action to be anything other than industrial action.
[65] Further submissions that were made by Mr O’Grady elaborated upon the employer’s finding that the applicant had not been honest and frank in the answers that he provided during the investigation into the protest action. Mr O’Grady submitted that the applicant had provided at best disingenuous answers, and that the employer was properly of the view that such a lack of frankness on the part of the applicant constituted a valid reason for the termination. Mr O’Grady referred to the particular aspects of the evidence which he said supported the employer’s finding that the applicant had not provided truthful and frank answers during the investigation process.
[66] Mr O’Grady made further submissions which rejected the proposition that Mr Wheatley had not treated the protest action with the level of seriousness that it properly attracted. Mr O’Grady submitted that it was understandable that in circumstances where Mr Wheatley was involved in the presentation of the first communication session, he did not immediately react to the circumstances but then subsequently undertook steps which led to the initiation of the investigation.
[67] In summary, Mr O’Grady submitted that the deliberate actions of the applicant, which involved a breach of his employment contract, a breach of the enterprise agreement, and a breach of the Fair Work Act in the form of organising and participating in unprotected industrial action, when coupled with his lack of frankness during the employer’s subsequent investigation, established valid reason for the dismissal. Mr O’Grady rejected that the dismissal was otherwise harsh, notwithstanding the applicant’s personal circumstances including length of service, because of the seriousness of the deliberate action and the consequences that it had upon the reputation of South32 generally and in respect to its other employees.
[68] Mr O’Grady made further alternative submissions in respect to the question of any remedy in the event that the dismissal of the applicant was found to have been unfair. In this regard, Mr O’Grady submitted that it would not be appropriate to reinstate the applicant as there were real concerns regarding the ongoing employment relationship because of the nature of the behaviour of the applicant regarding the protest action, the media attention that followed, and which amounted to aggregating factors that operated to confirm that reinstatement would not be an appropriate remedy.
Consideration
[69] Part 3-2 of the Act contains provisions which deal with unfair dismissal, and one of those provisions, section 385, stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[70] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct
[71] In broad terms, there were two facets of the applicant’s conduct which were said to have provided valid reason for his dismissal. Firstly, the applicant’s conduct in respect to the protest action that occurred on 7 March 2017, and the media coverage of that event, was asserted to have been misconduct that provided valid reason for dismissal. Secondly, the applicant’s conduct in respect to the investigation that followed the protest action was said to have involved a level of dishonesty and misrepresentation that provided South32 with valid reason for dismissal. Consequently, consideration of the question of valid reason has first examined the events of 7 March 2017, and then secondly, attention has been directed at the conduct of the applicant during the investigation that followed the protest event.
The Protest Action of 7 March
[72] The applicant was clearly the instigator of the protest action that occurred on 7 March 2017 at the Appin Colliery. There were two components of the protest action. The first component involved individuals who did not dress in their usual work attire but prior to and at the scheduled commencement time, were dressed only in their underwear. This action has been described as an “undies protest”. The second component of the protest action involved an unauthorised meeting of employees, most of whom were wearing only their underwear. This meeting has been referred to as the “meeting under the tree”.
[73] South32 determined that the protest action which involved both the undies protest and the meeting under the tree, constituted unprotected industrial action. The applicant asserted that the protest action was not unprotected industrial action. This submission primarily relied upon the meaning of industrial action as found in s. 19 of the Act, and specifically focussed upon what action by employees is excluded from the meaning of industrial action under subsection 19 (2) of the Act.
Unprotected Industrial Action or Imprudent Industrial Activity
[74] The question of whether the protest action of 7 March 2017 was unprotected industrial action is an important matter with significant consequences for the determination of the applicant’s unfair dismissal claim. The substantial and operative reason for the dismissal of the applicant was his role as the primary organiser and instigator of the protest action. If the protest action was unprotected industrial action it would represent an unlawful activity. However, if the protest action was lawful industrial activity, then the dismissal of the applicant would appear to have been adverse action taken in breach of the protection established by s. 346 of the Act.
[75] The Act establishes a general protection regarding industrial activities that are lawful. Relevantly, sections 346 and 347 of the Act are in the following terms:
“346 Protection
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Note: This section is a civil remedy provision (see Part 4-1).
347 Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association; or
(c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e) complies with an unlawful request made by, or requirement of, an industrial association; or
(f) takes part in industrial action; or
(g) makes a payment:
(i) that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii) to which an employee is not entitled because of that Division.”
[76] An extrapolation of this general protection into the circumstances of this case can be made as follows; a person, in this case, South32, must not take adverse action against another person, in this case, the dismissal of the applicant, because the other person, the applicant, organise[d] or promote[d] a lawful activity for, or on behalf of, an industrial association, or, encourage[d], or participate[d] in, a lawful activity organised or promoted by an industrial association, or, represent[ed] or advance[d] the views, claims or interests of an industrial association, in this case, the organisation, promotion, encouragement and participation in the protest action of 7 March 2017.
[77] Therefore, if the protest action was not unprotected industrial action as was declared by South32, but instead, lawful industrial activity, albeit imprudent or misguided, but nevertheless comprehended by the meaning of industrial activity provided by s. 347 of the Act, then, it would seem that to dismiss the applicant for his role in such lawful industrial activity would breach the general protection provided by s. 346 of the Act.
[78] South32 declared the protest action of 7 March to be unlawful as it was said to be unprotected industrial action. Section 19 of the Act provides for a meaning of industrial action and it is in the following terms:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.”
[79] There appeared to be an acceptance that the undies protest involved the performance of work in a manner different from that in which it was customarily performed, and that the meeting under the tree caused a delay, albeit minor, in the performance of work, that being the commencement of the communication session. However, there was evidence that any delay caused by the protest action of 7 March did not result in any loss of production or direct, quantifiable cost to South32. 1
[80] Those individuals that participated in the undies protest changed into their usual work attire immediately after the communication session had finished, and those individuals who were required to change into work clothing departed for work underground in the “second train”, but, as Mr Horsfield identified, “...they were always going on the second train.” 2 The extent of any delay or other impact of the meeting under the tree was minimal, and as Mr Wheatley recorded, this aspect of the protest was described as “…the group having a discussion to the side.”3
[81] Consequently, the protest action which involved both the undies protest and the meeting under the tree, had little practical impact on the performance of work, and it did not cause any loss of production. The practical impact of the protest action was largely confined to the alleged reputational damage to South32. Therefore, if the protest action of 7 March could have properly represented industrial action at all, it was industrial action of the lowest order, which would not even register a reading on any realistic scale of actual industrial action. Although the protest action could at best, represent only seemingly inconsequential industrial action, both the undies protest and the meeting under the tree have been carefully analysed in order to determine whether those actions, separately or in combination, could be properly characterised as meeting a practical interpretation of the definition of industrial action contained in s. 19 of the Act.
Sections 19 (1) (a) and (c)
[82] The undies protest represented the performance of work in a manner different from that in which it is customarily performed, that is, attendance at the pre-start meeting and the communication session dressed only in underwear. However, the undies protest action did not result in any restriction or limitation on, or a delay in, the performance of work as is necessary to satisfy the definition of industrial action found in s. 19 (1) (a) of the Act. Immediately following the conclusion of the communication session all employees who had participated in the undies protest changed into their customary work attire, and they did so during a period of time when they would have otherwise been waiting for the train to return from its first journey underground.
[83] The fact that the employees who participated in the undies protest were performing work in a manner different from that in which it is customarily performed does not necessarily mean that those employees were taking industrial action. Respectfully, I refer to the helpful Judicial authority regarding the correct construction to be provided to s. 19 (1) (a) of the Act which can be found in the Judgement of Ross J in the case of United Firefighters Union of Australia v Easy 4(Easy). The following extracts from the Judgement in Easy have relevant application to the circumstances in this instance:
“The first element of s 19(1)(a) is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work.” 5[emphasis added]
and
“There may conceivably be situations where particular work can only be performed whilst wearing certain clothing and the refusal to wear that clothing could affect the manner in which the work is performed and result in a restriction or limitation on, or a delay in, the performance of the work. But this is not such a case.” 6
and
“If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case.” 7
[84] In the circumstances of this case, all of those individuals that participated in the undies protest accepted and complied with the directive of the Undermanager, Mr Horsfield, and they changed into their ordinary work attire before going underground. During the period of the undies protest, the wearing of the particular items of clothing, being only underwear, did not place any limitation or restriction on the performance of work, nor did it result in any delay to the performance of work. That component of the protest action that involved the undies protest did not result in any restriction or limitation on, or a delay in, the performance of work and therefore it was not industrial action within the meaning of industrial action found in s. 19 (1) (a) of the Act.
[85] The meeting under the tree which was unauthorised and as such held contrary to the terms of the EA, did not result in a restriction or limitation on, or a delay in, the performance of work other than the short delay in the commencement of the communication session. Further, the meeting under the tree did not represent a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees in satisfaction of s. 19 (1) (c) of the Act. The evidence established that the meeting under the tree occurred following the pre-start meeting and during the period that employees were making their way to the training room for the communication session. At the first indication of any concern regarding the meeting, when Mr Wheatley commenced to approach the group, it disbanded, and the individuals made their way to the training room, albeit wearing only their underwear.
[86] This event, described as the meeting under the tree, when considered in isolation from the undies protest component of the protest action, and having regard for the immediate disbanding of the event at the first indication of complaint from the employer, did not involve; either, (a), the performance of work in a manner different from that in which it was customarily performed, or the adoption of a practice in relation to work, the result of which was a restriction or limitation on, or a delay in, the performance of work; or (b), a ban, limitation or restriction on the performance of work; or (c), a failure or refusal of the employees to attend for work or otherwise fail or refuse to perform any work.
[87] The corollary of a proper characterisation of the meeting under the tree has resulted in a finding that it was an event which, in isolation, did not satisfy the meaning of industrial action as contained in subsection 19 (1) of the Act. That is, a group of employees congregating together for discussion and photographs, and which then immediately disbanded at the first indication of complaint from the employer, could not, on any reasonable and objective contemplation, amount to industrial action as generally contemplated, and for the purpose in particular of s. 474 of the Act.
[88] Consequently, when properly analysed and considered in isolation, the meeting under the tree component of the protest action that occurred on 7 March 2017 did not satisfy the meaning of industrial action as found in subsection 19 (1) of the Act. In some respects, this is an unsurprising outcome. One might contemplate the practical absurdity that would arise if an assembled group of employees who engaged in discussion and were photographed, but immediately ceased their assembly at the first suggestion of complaint from the employer, would represent an event that could be construed to represent industrial action for the purposes of the Act.
Section 19 (2) (a)
[89] The purported industrial action must also be considered against the exceptions to the meaning of industrial action that are contained in subsection 19 (2) of the Act. In this instance, it was said that subsection 19 (2) (a) was applicable to the circumstances of the protest action that occurred on 7 March 2017 at the Appin Colliery. Relevantly, subsection 19 (2) (a) of the Act says:
“(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;”
[90] It seems that there have been only a relatively small number of cases that have considered the operation of the exemption to the definition of industrial action provided by s. 19 (2) (a) of the Act. The Parties have helpfully provided a number of citations for cases that examined the question as to whether the action of employees had been authorised or agreed to by the employer as contemplated by s. 19 (2) (a) of the Act (or in one case, similar provisions contained in the Workplace Relations Act 1996).
[91] Relevantly, the Commission was referred to; inter alia, the cases of; Director of Fair Work Building Industry Inspectorate v McCulloch 8 (McCulloch); Director of the Fair Work Building Industry Inspectorate v Adams 9 (Adams); and, Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo and Others 10 (IEU and Bendigo). The more recent cases of McCulloch and Adams both dealt with industrial action that occurred on the new Children’s Hospital site in the Perth suburb of Nedlands, Western Australia. The IEU and Bendigo case involved industrial action taken by teachers at Catholic Colleges at, inter alia, Bendigo and Chadstone, Victoria.
[92] In each of the cases of McCulloch, Adams and the IEU and Bendigo, the Court found that the exemption to the definition of the industrial action because of authorisation or agreement by the employer had not been satisfied. However, the circumstances in the cases of McCulloch and Adams involved the absence of groups of employees from the workplace associated with CFMEU rallies, and in the IEU and Bendigo case, there was clear refusal by teachers to attend particular meetings although they remained at work and undertook other activities.
[93] Further, it is relevant to note that in the case of Adams, the Commission had made final Orders under s. 418 of the Act that industrial action by employees stop, and there was a clear paucity of evidence 11 regarding any contention that the industrial action was authorised or agreed to by the employer. In the case of McCulloch, the Court found that evidence which was asserted to have condoned the absence of employees from work did not represent authorisation or agreement for their absence, but rather indicated that the employer believed that it was unable to stop the action from occurring as it was essentially powerless, and had no alternative but to suffer the consequences of the employees absenting themselves from work.
[94] It is also relevant to note that in the case of the IEU and Bendigo, that matter involved the clear refusal by teachers to attend particular meetings, and the performance of alternative work by those teachers without objection or other directive from the employer, could not avoid a finding that the refusal to engage in particular work constituted industrial action. These circumstances can be readily distinguished from this case, which at no stage involved any refusal to undertake any particular work, but instead involved the performance of work in a manner different from that in which it is customarily performed.
[95] Although in the case of McCulloch the Court was dealing with industrial action that involved a group of employees absenting themselves from work, particular aspects of the consideration in that case have relevance to the circumstances of the protest action of 7 March 2017 at the Appin Colliery. The following extracts from the Judgement in McCulloch are pertinent:
“In my view, whether the Director has proved an employer of the employees has “authorised or agreed to” relevant action for the purposes of s 19 of the Act, is a question of fact, having regard to all the evidence, in each case. Plainly enough the authorisation or agreement does not necessarily have to be in writing. Nor does it need to be given at any prescribed time before the action is taken. However, as a matter of common sense construction of the material words, the action must have been authorised or agreed to by the employer before the action was taken. I reject a construction that suggests an employer can retrospectively authorise or agree to the action.
It may well be that, in the particular circumstances of a case, the fact that customarily an employer allows employees to take action at a certain time or in certain circumstances may be relevant to the question of authorisation or agreement. Similarly, in the circumstances of a given case, the Court may find that an employer relevantly authorised or agreed to the action complained of despite the absence of express words of authorisation or agreement being proven in evidence.” 12 [emphasis added]
[96] In the present circumstances there was no suggestion that South32 had retrospectively authorised or agreed to the protest action that occurred on 7 March, on the contrary, it was asserted that it was only after publicity of the action emerged that South32 raised objection to it. However, it seems clear that the particular facts and circumstances of each case must be closely examined so as to determine whether or not authorisation or agreement for the action by the employer can be established. Any such authorisation or agreement may not be by way of overt or formalised consent, but I see no reason why acquiescence to particular action in particular circumstances, could not provide for implied authorisation or agreement in satisfaction of s. 19 (2) (a) of the Act.
[97] It was asserted on behalf of the applicant that the circumstances of the action that occurred on 7 March involved actions that were tacitly agreed to by South32, and thus captured by the exemption provided by s. 19 (2) (a) of the Act. This proposition was supported by evidence that included:
● At no stage of the protest action on 7 March had any South32 management representative instructed any individual who was participating in the undies protest to immediately change into their usual work attire.
● The tacit agreement of South32 to the undies protest was reflected by comments made by the Undermanager Mr Horsfield, when he said “you can’t go underground unless you’re fully dressed” 13 and by implication, there was no challenge to continuing in underwear until such time as an individual was embarking on the train to go underground.
● The tacit agreement of South32 to the undies protest was reflected by the permitted attendance of individuals wearing only underwear at the pre-start meeting and also at the communication session that followed the pre-start meeting.
● The tacit agreement of South32 to the undies protest was reflected by its own use of pictures of a similar undies protest that occurred about 20 years ago. 14
● The tacit agreement of South32 to the undies protest was reflected by the absence of any conduct immediately following the action which raised concern about the incident or which represented pursuit or initiation of complaint by South32 management representatives who had witnessed the protest action. In particular, immediately following the protest action, Mr Wheatley attached little concern and only low priority to the matter, reflected by his statement; “I planned to generally follow-up about what I had seen that morning once I was free of my planned commitments for the day.” 15
● Complaint by South32 about the protest action did not materialise until the afternoon of 7 March, and as a consequence of managers who had not witnessed the incident but who became aware of the media coverage that it had attracted.
● The tacit agreement of South32 to the undies protest was reflected by evidence that sought to artificially elevate the level of concern amongst, in particular, a female member of South32 management who gave evidence that directly conflicted with that provided by Mr Wheatley regarding her alleged communication to him of her “shock” 16 at what she had witnessed earlier on the morning of 7 March.
● The tacit agreement of South32 to the meeting under the tree was reflected by evidence that, in Mr Wheatley’s own words, it was little more than “the group having a discussion to the side” and that as soon as Mr Wheatley commenced to walk towards the group it disbanded, and the individuals at the meeting then walked to the training room to attend the communication session.
● The tacit agreement of South32 to the meeting under the tree was reflected by evidence that at no time did any South32 management representative take any action or give any instruction for the group that was assembled under the tree to immediately disband or discontinue their discussion.
● The tacit agreement of South32 to the meeting under the tree was reflected by evidence that the applicant believed that short flashpoint meetings had historically not been objected to by the employer.
● The tacit agreement of South32 to the meeting under the tree was reflected by the photo opportunity that it presented as an integral part of the undies protest component of the protest action, which South32 management had not attempted to stop.
[98] Consideration of the totality of evidence regarding the purported tacit agreement of South32 to the protest action of 7 March, has involved further examination of the two identified components of the protest action, being, the undies protest, and the meeting under the tree.
[99] The component of the protest action that involved the meeting under the tree can be dealt with first. In respect to the evidence regarding the meeting under the tree, it was clear that, although even the applicant may have agreed with the description of the event as an unauthorised meeting, in reality, as Mr Wheatley first recorded, it should more accurately be determined to have been a discussion by a group to the side, which disbanded at the first indication of any objection from South32 management. It is also relevant to note that the meeting under the tree represented a photo opportunity which subsequently provided the most significant photographic record of the undies protest.
[100] The meeting under the tree has been mischaracterised to have been a stop work meeting. There was contested evidence 17 as to whether the applicant had advised the Undermanager, Mr Horsfield that he intended to hold a short meeting after the pre-start meeting had finished. Although Mr Horsfield did not have authority to approve such meetings there was evidence18 that suggested that informal short meetings of this nature had occurred in the past without objection from South32 management.
[101] Importantly, at the first indication from South32 management that the meeting was causing any delay or disruption it disbanded. Although the meeting under the tree was not authorised or overtly agreed to by the employer, up until concern was identified, those participating in the meeting under the tree could reasonably assume that in the absence of any complaint or challenge to the meeting, there was implied agreement by the employer to the assembly. Such an assumption was well supported by the particular circumstances whereby the meeting under the tree represented a photo opportunity in the context of the generally compliant approach that South32 management had taken to the undies protest aspect of the activities of the morning.
[102] Consequently, when all of the relevant factors concerning the meeting under the tree are carefully assessed and balanced, and particularly having regard for; (a) the applicant’s belief that there had historically been acquiescence to the holding of similar short meetings, (b) the immediate disbanding of the meeting on the first indication of concern or challenge, (c) the inter-connection of the meeting with the undies protest as it represented a photo opportunity, and, (d) the broadly compliant reaction of South32 management to the undies protest, I have been drawn to the conclusion that, if the meeting under the tree could be held to have been industrial action under s. 19 (1) of the Act, it was action that was authorised or agreed to by South32 in satisfaction of s. 19 (2) (a) of the Act.
[103] The second component of the protest action of 7 March, involved the undies protest. Earlier in this Decision, I determined that this component of the protest action did not satisfy the meaning of industrial action found in subsection 19 (1) (a) of the Act. The undies protest component of the protest action on 7 March 2017, involved the performance of work in a manner different from that in which it was customarily performed. However, it did not result in a restriction or limitation on, or a delay in, the performance of work. The undies protest component of the protest action has been further examined so as to determine whether or not it was action that was authorised or agreed to by the employer.
[104] A careful examination and consideration of all of the evidence of the details of the undies protest component of the protest action on 7 March has confirmed that South32 management did not take any immediate action to stop the undies protest as it commenced, and as it continued. However, does such inaction properly translate into tacit agreement for the undies protest component of the protest action of 7 March, in satisfaction of the terms of subsection 19 (2) (a) of the Act?
[105] In my view, a practical and realistic interpretation should be provided for the terms contained in subsection 19 (2) (a) of the Act. As earlier mentioned, the authorisation or agreement of an employer to particular action taken by employees would be unlikely to manifest as some formal document or other easily verifiable evidence. The practical application of these particular legislative provisions would potentially encompass circumstances where the particular action of the employees was not the subject of any articulated protest by the employer, as opposed to any formalised position involving expressed authorisation or agreement.
[106] In many circumstances, particular action that was subsequently declared to be industrial action would need to have been the subject of complaint or warning from the employer in order to avoid what is the exemption that is provided by subsection 19 (2) (a) of the Act. There would be particular actions which would not necessarily require such complaint or warning if there was plainly loss of production or manifest detriment to the employer caused by the action. However, in instances where the action in question did not appear to have any detrimental consequences for the employer, if no complaint is made about that action there would appear to be strong basis to have established tacit authorisation or agreement for that action.
[107] In circumstances where the particular industrial action does not manifest in some overt display such as a direct refusal to perform a particular task, but instead is marginal or “soft” in nature, such as in instances where employees wear particular attire or badges at work, there would seem to be a practical requirement for an employer to challenge such action so as to test whether such action is to be properly considered to be industrial action. This practical requirement for testing of industrial action that is marginal in nature was alluded to in the following passage from the Easy Judgement :
“The applicants assert that Ms Antonakis’ wearing of the UFU t-shirt ‘was directed at the circumstances in which Ms Antonakis was offering to do work on the afternoon of 18 May 2012’. But there is no evidentiary basis for this proposition. Ms Antonakis did not give evidence to that effect and was never asked whether she was only prepared to work if she wore the UFU t-shirt. I am not persuaded that there was a restriction or limitation on the performance of work involved in the wearing of the UFU t-shirt.
By wearing campaign clothing Ms Antonakis was not banning the performance of the work, limiting the performance of the work or restricting the performance of the work. Nor was she banning, limiting or restricting the acceptance of or offering for work. All that the conduct amounted to was the wearing of particular clothing whilst work was performed. As such, the conduct does not fall within s 19(b).” 19[emphasis added]
[108] There are particular aspects of the undies protest of 7 March that should be recognised in the context of the consideration regarding whether there was any tacit agreement by South32 for that action. These aspects include:
● South32 management representatives were aware of the undies protest before it began, but there was no step taken to attempt to circumvent the action.
● The undies protest became manifestly apparent when, prior to the commencement of the day shift, the first individuals emerged from the washroom wearing only underwear. South32 management representatives did not remonstrate with these underwear wearing individuals, but instead they provided them with barbeque food.
● The only management directive that was given to those participating in the undies protest were the words to the effect of, “you can’t go underground unless you’re fully dressed.”
● Those participating in the undies protest moved uninhibited and unchallenged from the pre-start meeting in the muster room to the meeting under the tree, and then into the training room for the communication session.
● There was a combination of mirth and discomfort associated with the presence of individuals wearing only underwear during the communication session which was addressed by Mr Wheatley.
● Immediately following the conclusion of the communication session, those that had participated in the undies protest changed into their usual work attire.
● The undies protest would logically involve the subsequent dissemination of photographs of the participants, and realistically, South32 management representatives would have been aware that an undies protest without photographs would be of little purpose as it would have no enduring impact.
● There was minimal concern of a lower order of priority about the undies protest raised by the South32 management on site immediately following the action.
● South32 had used photographs of the earlier undies protest as part of its own PowerPoint presentation in an earlier communication session.
[109] Upon careful consideration of all of the detailed aspects of the undies protest, particularly involving the acquiescence of South32 management representatives before, during and shortly after the event, I have concluded that it represented action that was tacitly authorised or agreed to by South32. Consequently, the undies protest component of the protest action that occurred on 7 March was not industrial action by virtue of the operation of subsection 19 (2) (a) of the Act.
[110] Therefore, neither the undies protest nor the meeting under the tree components of the protest action that occurred on 7 March at the Appin Colliery can be properly established to represent industrial action in accordance with the terms of section 19 of the Act. It follows accordingly that the protest action undertaken by the applicant and others on 7 March, was not unprotected industrial action.
[111] The particular involvement and conduct of the applicant in respect to the protest action that occurred on 7 March, has been, upon analysis, properly construed to represent lawful industrial activity. However, as was acknowledged by the applicant, industrial activity involving an undies protest is an inappropriate activity in the context of a contemporary, inclusive workplace. There may have been little concern about the nature of an undies protest conducted in the 1990s, but contemporary workplace standards have altered significantly in the past 20 years. What may have been broadly acceptable workplace protest activity at a time before cigarette advertising was banned, and cash tolls were manually collected on the Sydney Harbour Bridge, must now be recognised to be inappropriate workplace conduct.
[112] In view of the determination made that the protest action that occurred on 7 March 2017, was not unprotected industrial action, the dismissal of the applicant for reason that his conduct in respect to that incident involved unlawful conduct has no basis in fact, and consequently cannot represent valid reason for the dismissal. There were other aspects of the applicant’s conduct upon which South32 relied as basis for the dismissal of the applicant and these matters are addressed later in this Decision. However, the primary and operative reason for the dismissal of the applicant involved his organisation, promotion, encouragement and participation in lawful industrial activity, organised and promoted by an industrial association, and which was action that involved his representative role in advancing the views, claims and interests of an industrial association.
Unprotected Industrial Action but not Valid Reason
[113] Although that aspect of the reason for the dismissal of the applicant that relied upon the protest action of 7 March being unprotected industrial action has been invalidated, I have approached further consideration of the matter on the basis that my findings in respect to the absence of unprotected industrial action may be incorrect. Therefore, I have undertaken further consideration of the unfair dismissal claim based upon an alternative theoretical circumstance that has assumed that the protest action of 7 March was unprotected industrial action.
[114] Dismissal for conduct that is unlawful will not necessarily or automatically provide for a sound, defensible and well-founded reason for dismissal. The particular nature and circumstances of the unlawful conduct must be objectively examined in order to establish that the conduct represented valid reason for dismissal. It would be manifestly unreasonable to simply translate conduct that was unlawful as valid reason for dismissal.
[115] In this instance, this particular aspect of the reason for dismissal was specifically referred to as the unlawful unprotected industrial action, the media coverage of which allegedly caused reputational damage to South32. It was clear from the letter of dismissal which referred to the earlier letter of 5 April 2017, that it was the alleged reputational damage to South32 which was the basis for complaint regarding the unprotected industrial action, rather than any actual loss of production or other identifiable cost or damage caused by the unprotected industrial action.
[116] As mentioned earlier in this Decision, on any objective and balanced assessment of the protest action that occurred on 7 March, if it was industrial action, it was industrial action of the lowest order. The applicant provided unchallenged evidence that he had deliberately pursued the undies protest action because it was unlikely to cause any loss of production or other direct financial cost to South32. The applicant genuinely believed that the protest action would enable the ongoing laundry service dispute to obtain some publicity that would serve to advance the position that he and the CFMEU had been agitating. However, importantly, the undies protest was deliberately chosen by the applicant as a means to assist the position that he and the CFMEU were advancing, without inflicting any direct economic harm on South32. Realistically, the undies protest was designed to cause only some embarrassment to arise from the publicity that it would attract.
[117] These circumstances, where the unprotected industrial action caused no quantifiable loss or damage to South32, should be contrasted with instances that readily come to mind, and which have involved significant direct financial damage that was deliberately and maliciously inflicted upon a particular employer. Further, I find it questionable as to what the realistic impact of the alleged reputational damage would be for an international mining and resources company, when compared to the potential for some “bad publicity” to damage the trade of a business that had direct dealings with the general public as its customers.
[118] The letter of dismissal also mentioned that the protest action allegedly caused damage to South32 “in terms of its relationship with its employees.” This proposition was supported by evidence about the undies protest apparently causing embarrassment, shock, awkwardness or other discomfort, to other employees, and in particular, female employees such as Ms Foodey. The evidence on this issue sought to establish that the undies protest was conduct that perpetrated sexist workplace behaviour in the context of an historically male dominated industry. South32 asserted that when considered in this context, the undies protest was action that was contrary to providing an inclusive workplace.
[119] Evidence to support the alleged inclusive workplace damage caused by the undies protest, traversed examples of the historical nature of sexist behaviour in the workplace, and particular mention was made of the past prevalence of pictures of naked women which, in contemporary circumstances, would no longer be tolerated. Consideration of this issue of alleged inclusive workplace damage must properly recognise that although individuals have different sensitivities regarding a variety of workplace behaviours, it would be understandable that seeing a work colleague in their underwear might cause some people some discomfort and embarrassment. Balanced against such sensitivities, it could be noted that the public display of underwear is embodied in the modern day children’s superhero, Captain Underpants.
[120] Consequently, in the modern, inclusive workplace there is no place for an undies protest. It represents an imprudent measure to deal with any workplace dispute. However, in the particular circumstances of this case, there was ample opportunity for numerous members of South32 management to circumvent an activity that might have detrimentally impacted upon the maintenance of an inclusive workplace. The failure of South32 management to at any stage, take any action to circumvent or stop the undies protest, is analogous to a failure to remove or direct someone to remove pictures of naked women in the workplace. Therefore, to the extent that the undies protest caused inclusive workplace damage, South32 should have recognised and accepted that such damage was, in part, self-inflicted.
[121] Upon objective analysis of the particular circumstances of this case where the putative, unprotected industrial action caused little more than questionable, purported reputational damage, the role of the applicant in respect to that action does not provide a reason for dismissal which was sound, well-founded or defensible. Consequently, even if the protest action of 7 March was unprotected industrial action, the applicant’s role in respect of that event, and the subsequent publicity that it attracted, did not represent valid reason for his dismissal.
[122] The absence of valid reason for the dismissal of the applicant was reinforced by other factors which demonstrated that the purported reason for dismissal involving unlawful unprotected industrial action and the subsequent adverse publicity, was a matter that was not fairly or objectively evaluated by South32. In particular, there were two aspects of the consideration of the applicant’s conduct by South32 which lacked objectivity and balance, and instead, artificially elevated any misconduct of the applicant.
[123] Firstly, there was little evidence of any genuine contemplation of the contents of the applicant’s letter of 10 April 2017 20, which was provided in response to the show cause letter issued on 5 April 2017. This letter is notable for the level of genuine contrition and concern that the applicant expressed about what he recognised to be the mistakes and misjudgement that he made about the undies protest. Importantly, the applicant sincerely regretted and acknowledged that what was meant to be a light-hearted protest without there being any loss of production, had turned into unlawful unprotected industrial action. Further, the applicant made suggestions to repair any reputational damage or other concerns by issuing a joint positive statement or other communication favourable to South32.
[124] Secondly, there was no evidence that the relevant South32 managers who were dealing with the investigation and show cause process had any consideration for the representative role of the applicant. The role of a workplace representative is inherently difficult and fundamentally conflicted. An individual who is conferred with the responsibility of representing the interests of fellow employees will frequently encounter circumstances where their representational responsibility will require them to act in a manner that is directly contrary to the interests of their employer. The difficulties associated with what might be described as the “divided loyalties” that apply for workplace representatives cannot be overstated.
[125] Further, it is relevant to recognise that the representational role such as that of the local Lodge President position occupied by the applicant, attracts a right that is embodied in the objects of the Act and s. 3 (e) relevantly states:
“(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, …”
[126] Consequently, in circumstances where the actions of an employee are being considered to potentially be misconduct, if those actions were taken as part of the representative role of that employee it is necessary for there to be some accommodation and recognition of the representative responsibilities that may have motivated the actions of the individual. This accommodation and recognition does not extend to some form of total immunity from disciplinary action against any conduct undertaken by a workplace representative. A workplace representative is not a protected species who can act without any requirement to comply with the ordinary standards of conduct, diligence, and loyalty that apply to all employees. However, the proper accommodation for the role of a workplace representative introduces a requirement for there to be evidence of recognition of the representative role, such that this factor was part of an objective, balanced consideration of any alleged misconduct for which disciplinary action was subsequently invoked.
[127] When these additional factors which involved the applicant’s genuine contrition and an absence of proper recognition and accommodation for his representative role, are combined with the putative unprotected industrial action being of the lowest order, there is compelling basis to find that there was not valid reason for dismissal of the applicant in respect to his role in the protest action of 7 March 2017. This conclusion has been drawn in the context of the alternative consideration which has hypothetically assumed that my primary findings that the protest action did not represent unprotected industrial action, were incorrect. The position that has emerged from my alternative consideration has been further strengthened by conclusions that I have reached regarding the personal character of the applicant.
[128] I have had the benefit of closely observing the applicant during his extended period of attendance in the witness box and at other times during the proceedings. The applicant has impressed me as a person of good character. In my assessment, he is an honest, decent individual who has endeavoured to discharge the representative responsibilities bestowed upon him by his fellow workers with serious, earnest desire to advance the best interests of those that he represented.
[129] Further, in the circumstances of the protest action of 7 March, the applicant endeavoured to discharge his representative responsibilities in a fair, measured, and balanced manner, which respected his employer, and recognised that wherever possible, mutually beneficial outcomes should be attained rather than any result extracted with resort to conflict. Unfortunately, the applicant made a misjudgement as the undies protest represented an imprudent and inappropriate means to advance the interests of the people that he represented.
[130] However, the applicant engaged in a course of conduct that was designed to minimise or avoid any damage or cost to South32, whilst advancing the interests of those that he represented, and the CFMEU. The applicant appreciated that there were clearly shared interests for his members and his employer. In simple terms, the applicant’s actions appeared to recognise that if his employer did not make a profit, his members would not have a job. In my view, there should be appropriate recognition, reward and encouragement for a responsible, measured and respectful approach to any representative role, particularly where such reasonableness may be contrasted with blatantly unlawful militant conduct.
Conduct During the Investigation - Loss of Trust and Confidence
[131] Notwithstanding the findings made which have rejected that there was valid reason for the dismissal of the applicant connected with the protest action of 7 March, and the attendant publicity of that event, further examination of the applicant’s conduct during the investigation into the protest action has been required. The applicant’s conduct in respect to the investigation that followed the protest action was said to involve a level of dishonesty and misrepresentation that provided South32 with valid reason for dismissal.
[132] There were six identified aspects of the applicant’s conduct during the investigation and show cause process which Mr Wheatley relied upon as basis for his conclusion that the applicant had provided dishonest, misleading, or less than candid information to South32. It is relevant to note that the letter of dismissal actually described the applicant’s conduct during the investigation to have been “in some instances, dishonest.” The inference that can logically be drawn from this statement is that Mr Wheatley believed that the applicant had been dishonest and deliberately provided false information to South32.
[133] However, it is necessary to examine the applicant’s conduct in totality, so that, a combination of any dishonest, intentionally misleading, or less than candid statements could, in combination with inadvertent misinformation or mistake, provide proper basis for a genuine loss of trust and confidence, and thereby valid reason for dismissal. The six particular aspects of the information provided by the applicant which were asserted to be dishonest, misleading, or otherwise not candid, were identified to be: (1) whether the meeting under the tree was pre-planned or not; (2) whether the applicant directed employees to attend the communication session in their underwear; (3) whether the applicant was responsible for media contact regarding the protest action; (4) the applicant’s refusal or avoidance to name those who participated in the undies protest; (5) the applicant’s refusal or avoidance to name those who took photographs of the undies protest; and (6) whether the applicant pressured or coerced employees to participate in the undies protest.
[134] A detailed examination of each of the six identified areas of alleged dishonesty or misinformation does not establish a sound basis to conclude that at any point the applicant was dishonest. The record of conversation of the interview of the applicant on 15 March 2017 21, and the show cause response letter that he provided on 10 April 201722, were documents that are most notable for the admissions made by the applicant and the expansive answers that he provided to questions from South32. There are particular inconsistencies that can be identified between the information that was provided by the applicant in his interview on 15 March 2017, and the further material that he provided in his written show cause response of 10 April 2017. However, these inconsistencies can be attributed to the natural human characteristic of fluctuating levels of recall of detail about past events, and in some instances, involved alternative descriptions used for a particular point of detail.
[135] For example, in respect to the first issue of alleged dishonesty, that being, (1) whether the meeting under the tree was pre-planned, in the 15 March 2017 interview, the applicant described the meeting under the tree as a “flashpoint meeting.” However, in the applicant’s show cause response letter he stated that “One of the reasons I was on site on 7 March 2017 was to pass on the Company’s latest offer to settle the dispute over the laundry service and get a response from the members.” These two positions were seen as being contradictory, as the applicant was initially suggesting that the meeting under the tree was spontaneous, while subsequently he disclosed that it was a pre-planned meeting.
[136] However, a closer examination of the record of conversation with the applicant in his interview on 15 March 2017, includes that he said “The meeting was a report back to the guys…” Consequently, the applicant was not suggesting that the meeting under the tree was spontaneous, it was a report back and he told that to South32 on 15 March 2017. The use of the terminology “flashpoint meeting” was misinterpreted as suggesting that it was spontaneous. Upon careful analysis, it is clear that the applicant was not being dishonest or endeavouring to mislead South32 about the pre-planning of the meeting under the tree. The applicant’s use of the terminology “flashpoint meeting” reflected the level of frustration and pressure that he felt as a result of the enduring disputation about the absence of the laundry service, and the perceived incapacity of that matter to be resolved by way of the dispute settlement procedure process that had been activated in the Commission.
[137] As another example, the issue identified as (3), whether the applicant was responsible for media contact regarding the protest action was something that Mr Wheatley found the applicant to be dishonest or less than candid about. However, an examination of all of the answers provided on this particular question of media contact disclosed that the applicant accurately advised that on 7 March he was contacted by the media as opposed to him initiating that contact. Further, he accurately advised that he did not provide the media with the photographs that were subsequently publicised. Importantly, during the interview on 15 March, the applicant admitted that he had endeavoured to contact the media on the Monday evening before the protest, but he had been unsuccessful. Clearly, the applicant provided South32 with an admission that he had attempted to have media attention drawn to the undies protest, (the undies protest without media coverage would have little impact), but, as events unfolded, the first contact that was successfully made with the applicant came from the media.
[138] An examination of the other four aspects of alleged dishonesty or lack of candour has, similarly provided explanations which exonerate the applicant. One particular issue of note involved alleged dishonesty aspect number (5), the applicant’s refusal or avoidance to name those who took photographs of the undies protest. Although Mr Wheatley would not have been aware at the time, it has subsequently been established that shortly before noon on 7 March, the applicant was copied into an email 23 which was sent by another employee to the media, and which attached photographs of the undies protest. Consequently, when the applicant was asked on 15 March, Who provided the photos to the media? It initially appeared that he did not answer this question honestly, because he failed to disclose the identity of the person who had sent him the email of 7 March which had attached the photographs that were sent to the media.
[139] However, during the Hearing the applicant provided evidence which I am prepared to accept, whereby he said that he opened the email on 7 March on his iPad and he looked at the photographs of the undies protest without examining the address lines of the email. Essentially, he knew who had sent him the email, but nothing more than that. Therefore, when he was questioned on 15 March about identification of who provided the photos to the media, he was not concealing the identification of the person who had sent him the email on 7 March because he had not, at that time, realised that the communication had been directed to the media.
[140] Further, it initially appeared that the applicant may have been less than frank during the interview on 15 March when he did not disclose that he had received the email of 7 March (Exhibit 9) with the attached photographs, and thereby it appeared that he had concealed identification of the photographer. However, it was subsequently confirmed that the individual who sent Exhibit 9 was not present at the Appin Colliery site on the morning of 7 March, and therefore that person could not have been the photographer.
[141] In summary, following a detailed analysis of the protest action of 7 March 2017, and the subsequent media coverage of those events, I find that there was no sound, well-founded or defensible reason for the dismissal of the applicant in respect to his involvement in those events. Further, in respect to the investigation conducted by South32 into the protest action and the subsequent show cause process, any incidents of alleged dishonesty have not been confirmed. Therefore, any alleged dishonesty, disingenuousness or other aspect of the applicant’s conduct in respect to the investigation into the protest action has failed to establish any sound or defensible reason for the dismissal of the applicant. Consequently, the reasons for the dismissal of the applicant that related both to the protest action of 7 March 2017, and the subsequent conduct of the applicant during the investigation and show cause process, do not represent valid reason for the dismissal.
387 (b) - Notification of Reason for Dismissal
[142] The applicant was provided with notification of the reason for his dismissal in the letter of 19 April 2017. This is not a factor that the applicant has sought to rely upon.
387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct
[143] The applicant was provided with opportunities to respond during the investigation and show cause process. This is not a factor that the applicant has sought to rely upon.
387 (d) - Unreasonable Refusal to Allow a Support Person to Assist
[144] The applicant was not denied or otherwise not provided an opportunity to have a support person to assist him during the investigation and show cause process. This is not a factor that the applicant has sought to rely upon.
387 (e) - Warning about Unsatisfactory Performance
[145] This factor has no relevance in this instance.
387 (f) - Size of Enterprise likely to Impact on Procedures
[146] This is not a factor that the applicant has sought to rely upon.
387 (g) - Absence of Management Specialists or Expertise likely to Impact on Procedures
[147] The employer did have dedicated management specialists who were involved in the investigation and the show cause process. This is not a factor that the applicant has sought to rely upon.
387 (h) - Other Relevant Matters
[148] There were particular aspects of the applicant’s personal circumstances which, upon careful consideration, established that the dismissal of the applicant was harsh. The applicant was a very long serving employee with a generally commendable employment record. Although South32 said that it had regard for the personal circumstances and length of service of the applicant, it concluded that these factors did not sufficiently mitigate against the seriousness of the applicant’s conduct in arranging the protest action, and then providing dishonest answers during the investigation into the protest action. In view of the errors that have been established in respect to the findings made by South32 about the protest action in particular, the purported contemplation of the personal circumstances of the applicant was undertaken upon an erroneous foundation.
[149] It is also relevant to note that any purported balancing of the personal circumstances of the applicant against other relevant factors did not include any accommodation or recognition for the representative role of the applicant both in terms of the protest action of 7 March 2017, and in respect to impacts that the representative role would be likely to have upon alternative employment opportunities.
[150] Further, there was no evidence of earnest consideration of alternative disciplinary action other than dismissal. The genuine contrition expressed by the applicant was broadly disregarded by Mr Wheatley and other relevant South32 managers. In addition, there was clearly substantial inconsistency associated with the penalty provided to the applicant when compared with the disciplinary warnings that were issued to other employees who were involved in the dissemination of information about the protest action to the media. On any reasonable and objective contemplation, the dismissal of the applicant was an entirely disproportionate response to the nature and severity that could be attached to any misconduct associated with the protest action, even if that protest action could be properly established to have been unlawful, unprotected industrial action.
Conclusion
[151] The applicant was dismissed because he was the person primarily responsible for the protest action that occurred at the Appin Colliery on 7 March 2017. South32 declared that the protest action was unprotected industrial action, and that the applicant’s conduct in respect to organising that action, and the subsequent publicity that it attracted, caused reputational damage to South32. Upon objective and balanced examination, the protest action has been found to have not been unprotected industrial action, and consequently the cornerstone of the reason for the applicant’s dismissal has been established to be erroneous.
[152] In the alternative, even if the protest action of 7 March 2017 could have been properly construed to represent unprotected industrial action, because of the broadly innocuous impact of that action, and various other factors associated with it, the applicant’s role in respect to that action could not represent valid reason for dismissal.
[153] The dismissal of the applicant was also based upon the purported loss of trust and confidence that the employer established from the alleged dishonest information that he provided during the investigation and show cause process that followed the protest action of 7 March 2017. A detailed, objective and balanced examination of the alleged dishonesty and/or disingenuousness of the applicant has upon analysis, not been confirmed. Instead, the punishment of dismissal has been found to have been a grossly disproportionate reaction to the totality of the applicant’s conduct.
[154] In summary therefore, there was no valid reason for the dismissal of the applicant. A consideration of all other factors relevant to the dismissal of the applicant, has confirmed that, even if hypothetically there was valid reason for his dismissal it was nevertheless harsh as the applicant’s personal circumstances and his representative role were not given appropriate weight or recognition by South32.
[155] The dismissal of the applicant was harsh, unjust and unreasonable. The applicant is a person protected from unfair dismissal, and he is entitled to have the Commission provide an appropriate remedy.
Remedy
[156] The applicant has sought reinstatement as remedy for his unfair dismissal.
[157] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss.390 - 393) of the Act. Section 390 of the Act is relevant to the consideration in this instance and is in the following terms:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[158] I have carefully considered whether it would be inappropriate to make Orders for the reinstatement of the applicant. Reinstatement is frequently referred to as the primary remedy for any unfair dismissal. Reinstatement is often resisted on the basis of an alleged loss of trust and confidence in the dismissed employee. There are also practical considerations which impact upon the appropriateness or otherwise of reinstatement.
[159] In the particular circumstances of this case, all of the relevant issues regarding the appropriateness of reinstatement have been considered, and I have formed the view that an injustice of particular significance would stand if the applicant was not provided with the remedy that he has earnestly sought. In addition, it is relevant to note that the particular manager that made the decision to dismiss the applicant, Mr Wheatley, has subsequently changed position and he would not have direct supervisory responsibility for the applicant.
[160] Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.
[161] Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair, and I am prepared to make Orders for the reinstatement of the applicant. Orders providing for the reinstatement of the applicant will be issued separately.
[162] In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine the precise amount by way of Settlement of Minutes of Order proceedings. Any request for such further proceedings should be made within 21 days from the date of this Decision.
COMMISSIONER
Appearances:
A M Slevin of Counsel with P Parker and P Pasfield from Slater and Gordon for the Applicant.
C O’Grady, Queens Counsel with B Rauf of Counselfor the Respondent.
Hearing details:
2017.
Wollongong:
September, 7 & 8.
Sydney:
September, 14 & 15.
October, 10.
1 See, in particular, the recorded responses to the investigation question 3. d. “Did you notice work (comms session / start of shift etc.) being delayed as a result of the activities? If so, by how long?” found on pages 240, 244, 248, 252, 256, 260, 265, 268, 272, 276 and, especially, 280 of Exhibit 18.
2 Exhibit 18 @ page 280.
3 Exhibit 18 @ page 276.
4 United Firefighters Union of Australia v Easy[2013] FCA 763, Ross J (2 Aug 2013).
5 Ibid @ 153.
6 Ibid @ 154.
7 Ibid @ 157.
8 Director of the Fair Work Building Industry Inspectorate v McCullough [2016] FCA 1291, Barker J (2 Nov 2016).
9 Director of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 828, Barker J (12 Aug 2015).
10 Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo and Others 84IR 123, Ryan J, (9 Sept 1998).
11 Ibid @ paragraphs 50 - 56.
12 Ibid @ paragraphs 99, 100.
13 Exhibit 26 @ paragraph 5(g).
14 Exhibit 14.
15 Exhibit 17 @ paragraph 45.
16 Exhibit 17 @ paragraph 46.
17 See Exhibit 18 @ pages 329 and 381. Exhibit 2 @ paragraph 30, transcript @ PN746 and Exhibit 26 @ paragraph 5 (e) and (f).
18 Exhibit 2 @ 32.
19 Ibid @ paragraphs 158, 159.
20 Exhibit 2 @ Annexure “DM6”.
21 Exhibit 18 @ Tab 35.
22 Exhibit 2 @ Annexure “DM6”.
23 Exhibit 9.
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