FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286
File number(s): SYG 2432 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 28 March 2024 Catchwords: INDUSTRIAL LAW – whether the respondent employer was justified in purporting to summarily dismiss the applicant from his employment – respondent employer not justified, and by purporting to summarily dismiss the applicant from his employment the respondent employer repudiated the contract of employment – whether the applicant exercised workplace rights by making complaints or inquiries in relation to his employment – applicant exercised workplace rights – whether respondent employer proved that it did not dismiss the applicant from his employment because he exercised workplace rights or for reasons that did not include as a substantial and operative factor the applicant’s having exercised workplace rights – the respondent employer has not so proved – whether applicant’s service as an employee of a related company of the respondent employer in the United Kingdom counted as continuous service with the respondent employer for the purposes of the Long Service Leave Act 1955 (NSW) – the applicant’s service with related companies in the United Kingdom did not count as continuous service of the respondent employer – declarations made and directions made for the filing of submissions on damages and compensation. Legislation: Acts Interpretation Act 1901 (Cth) s 28A
Evidence Act 1995 (Cth) ss 32, 34, 60(1), 69(2)(b), 140, 190
Fair Work Act 2009 (Cth) ss 12, 44(1), 61(3), 62, 117(1), 117(2), 123(1), 340(1), 341(1)(c)(ii), 342(1), 360, 361(1), 793(1)
Workplace Relations Act 1996 (Cth) s 298K(1)
Inclosed Lands Protection Act 1901 (NSW) s 4(1)
Interpretation Act 1987 (NSW) s 12(b)
Interpretation of Legislation Act 1984 (Vic) s 48(b)
Long Service Leave Act 1955 (NSW) ss 4(1), 4(2)(a), 4(3), 4(5), 4(11), 4(13)(b), 4(13)(c),
Surveillance Devices Act 2007 (NSW)
Fair Work Regulations 2009 (Cth) reg 1.07
Cases cited: Adami v Maison de Luxe Ltd (1924) 35 CLR 143
Alam v National Australia Bank Limited [2021] FCAFC 178
Associated Dominion Assurance Society Pty Ltd v Andrew (1949) 49 SR (NSW) 351
Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246
Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25
Carter v The Dennis Family Corporation [2010] VSC 406
Childs v Metropolitan Transport Trust (1981) 29 AILR 24
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421
Derry v Peek (1889) LR 14 App Cas 337
Edgington v Fitzmaurice (1885) 29 Ch D 459
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39
Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743
Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Infosys Technologies Ltd v State of Victoria [2021] VSCA 219
International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
Jonesco v Beard [1930] AC 298
Krakowski v Eurolynx Properties Ltd [1995] HCA 68
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67
McIntyre v R [2009] NSWCCA 305
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27
R v Court [1989] AC 28
R v Venna [1976] QB 421
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Smith v Land and House Property Corporation (1885) 28 Ch D 7
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1
Wallingford v Mutual Society (1880) 5 App. Cas. 685
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Division: Fair Work Number of paragraphs: 675 Date of last submission/s: 12 December 2022 Date of hearing: 19, 20, 21, and 23 September 2022 and 28 November 2022 Place: Sydney The Applicant: Appeared in person (and on 28 November 2022 by video) Counsel for the Respondent: Mr R Jedrzejczyk (and on 28 November 2022 by video) Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 2432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THOMAS HALEY
Applicant
AND: LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
28 MARCH 2024
THE COURT DECLARES THAT:
1.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent repudiated its obligations under the contract of employment the respondent made with the applicant on or about 25 July 2018.
2.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).
3.By failing to deliver personally to the applicant written notice of its purported summary dismissal of the applicant’s employment, or by failing to leave at, or send by pre-paid post to, the applicant’s address last notified to the respondent, the respondent contravened s 117(1) of the FW Act.
THE COURT ORDERS THAT:
4.By 12 April 2024 the applicant file and serve written submissions on whether it is open to the applicant to claim the respondent contravened s 117(2) of the FW Act, and on damages and compensation.
5.By 29 April 2024 the respondent file and serve written submissions on the issues referred to in order 4.
6.The matter be listed for a directions hearing at 4:15 pm (AEST) on 3 May 2024.
7.The parties have liberty to apply on such notice as the circumstances warrant for any reason, including varying orders 4, 5, or 6.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
QUESTIONS ARISING
[3]
ARRANGEMENT OF REASONS
[5]
PRELIMINARY MATTERS
[6]
Evidence of the Incident
[6]
Relevance of evidence of investigation(s)
[12]
Credibility of Mr Haley and Mr Chatwin
[21]
Some principles relating to fraudulent misrepresentations
[28]
Alleging and proving fraud
[35]
EVIDENCE AND SOME FINDINGS
[39]
Mr Haley’s employment and professional background
[39]
February 2018 – Mr Chatwin approaches Mr Haley to work for LOA
[41]
25 July 2018 – Mr Haley signs contract of employment
[48]
“Position Description” of Commercial Leader
[51]
LOA’s “Global Code of Conduct” and other policies
[59]
25 September 2018 - Mr Haley commences employment with LOA
[63]
Work performed by Mr Haley at commencement of his employment
[66]
Mr Haley expresses concerns about his role within LOA
[70]
The NSW Bushfire Clean-up Project
[74]
Mr Haley’s role in the Bushfire Project
[78]
Alleged complaints or inquiries made before 3 July 2020
[92]
Alleged Complaint/Inquiry No 1
[93]
Alleged Complaint/Inquiry No 2
[96]
Alleged Complaint/Inquiry No 3
[98]
Alleged Complaint/Inquiry No 4
[100]
Alleged Complaint/Inquiry No 5
[102]
Alleged Complaint/Inquiry No 6
[103]
Alleged Complaint/Inquiry No 7
[104]
The Incident – evidence
[108]
Persons who attended Pambula Property on evening of the Incident
[110]
Account apparently given by Ms P to “Amy”
[112]
Account apparently given by Ms P to Ms Woodford on 3 July 2020
[114]
Record of interview of Mr David Field – 8:48 am, 6 July 2020
[115]
Record of interview of Mr Shaun Boyle – 9:00 am, 6 July 2020
[117]
Record of interview of Mr David Grierson – 9:36 am, 6 July 2020
[121]
Record of interview of Ms P – 11:30 am, 6 July 2020
[125]
Ms P’s email sent at 1:55 pm on 6 July 2020
[127]
Record of interview of Mr Andrew Byrne – 12:02 pm, 6 July 2020
[128]
Record of interview of Ms Amy Lovell – 12:58 pm, 6 July 2020
[130]
Record of interview of Ms Lisa McKeever – 3:09 pm, 6 July 2020
[131]
Record of interview of Mr Shane Neely – 8:30 am, 8 July 2020
[132]
The audio recording
[133]
Record of interview of Mr Haley – 9:46 am, 8 July 2020
[156]
Record of interview of Mr Adam Neely – 1:32 pm, 8 July 2020
[166]
Second record of interview of Ms P and Mr P – 9:44 am, 9 July 2020
[167]
Second record of interview of Mr Andrew Byrne – 11:00 am, 13 July 2020
[168]
Second record of interview of Mr David Grierson – 3:00 pm, 14 July 2020
[171]
22 July 2020 - Show Cause Meeting
[174]
Alleged admissions
[188]
First Alleged Admission
[190]
Second Alleged Admission
[195]
Third Alleged Admission
[202]
The Incident – Principal Findings
[205]
What LOA submits occurred at the Incident
[205]
Mr and Ms P’s claims
[210]
Findings
[215]
LOA’s purported investigation of the Incident
[218]
Ms P sends photos and recording to Ms Woodford
[218]
Mr Barrie and others are notified of the Incident
[219]
Mr Curnow-Rose recommends standing down Mr Haley
[222]
3 July 2020 – Mr Curnow-Rose suspends Mr Haley’s employment
[225]
4 July 2020 – Mr Curnow-Rose sends letter to Mr and Ms P and Mr Haley
[227]
4 July 2020 – Mr Haley has a telephone conversation with Mr Curnow-Rose
[231]
6 July 2020 – Mr Curnow-Rose conducts further interviews including Ms P
[237]
1:55 pm 6 July 2020 – Ms P sends audio recording to Mr Curnow-Rose
[239]
6 July 2020 - Mr Curnow-Rose requires Mr Haley to meet him on 7 July 2020
[241]
6 July 2020 – Mr Curnow-Rose interviews Mr Byrne and others
[246]
8 July 2020 – Mr Curnow-Rose interviews Mr Haley and others
[247]
8 July 2020 – Mr Curnow-Rose submits First Purported Investigation Report
[248]
Was the First Purported Investigation Report a final report?
[250]
Contents of the First Purported Investigation Report
[252]
9 July 2020 – LOA sends letter to Mr Haley seeking further information
[257]
Matter #1
[269]
Matter #2
[272]
Matter #3
[276]
Matter #4
[279]
Matter #5
[281]
Matter #6
[283]
Matter #7
[288]
Implied representation that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”
[290]
Process that lead to the Second Purported Investigation Report
[291]
13 July 2020 – Mr Curnow-Rose interviews Mr Byrne
[293]
13 July 2020 – Mr Chatwin sends text message to Mr Haley
[294]
Mr Cathal O’Rourke’s role in the purported investigation
[295]
14 July 2020 – Mr Curnow-Rose interviews Mr Grierson
[309]
14 July 2023 – Mr Haley has a conversation with Mr McDevitt
[310]
5:21 pm 14 July 2020– Mr Haley sends response to 9 July Letter
[313]
Recording without consent
[315]
Location of listening device
[316]
Conduct of complainants
[317]
Physical harm and personal injury
[318]
Response to matters identified in 9 July 2020
[319]
Concluding statement
[320]
Cross-examination of Mr Haley on Response to 9 July Letter
[322]
False and malicious allegations
[323]
Conduct warranting criminal charges
[325]
Matter #2
[329]
Preparation of Second Purported Investigation Report
[334]
First Draft Executive Summary
[336]
First Draft Mr Curnow-Rose sent to Mr Sleeman at 3:53 pm on 15 July 2020
[339]
Second Draft Mr Sleeman sends to himself as at 10:21 pm on 15 July 2020
[345]
Mr Sleeman prepares further drafts
[350]
Eleventh draft – 6:32 pm on 16 July 2020
[354]
Second Draft Executive Summary
[358]
Twelfth Draft sent to Mr Cashin and Mr Chatwin
[359]
Further draft(s)
[361]
Mr Chatwin reviews Twelfth Draft and asks for further information
[362]
17 July 2020 – Second Purported Investigation Report Completed
[364]
The allegations the subject of the Second Purported Investigation Report
[365]
Identifying the person who made the purported finding
[374]
Additional matters
[375]
11:36 pm 15 July 2020 - Ms Haley communicates about the investigation process
[383]
20 July 2020 – Mr Haley sends Reflection Email
[392]
Events leading to the composition and sending of Reflection Email
[392]
The Reflection Email
[395]
Cross-examination on Reflection Email
[396]
Mr Haley’s motive(s) for sending Reflection Email
[410]
The Show Cause Letter
[419]
The drafting of the Show Cause Letter
[419]
The Show Cause Letter
[440]
Events after sending Show Cause Letter but before Show Cause Meeting
[448]
22 July 2020 – Show Cause Meeting
[449]
Events after the Show Cause Meeting but before Termination Letter sent
[450]
What the documents reveal
[450]
Mr Sleeman sends to Mr Chatwin and others “final” Termination Letter
[458]
Contents of the Termination Letter
[459]
The decision to terminate – was Mr Chatwin the decision maker?
[469]
Mr Chatwin’s first affidavit
[471]
Mr Chatwin’s second affidavit
[475]
Mr Chatwin’s cross-examination
[479]
Conclusion on Mr Chatwin’s evidence
[496]
Conclusion
[503]
MR HALEY’S CONTRACT CLAIMS BASED ON UNJUSTIFIED DISMISSAL
[507]
The “pleadings”
[507]
Whether LOA Response sufficient to raise dishonesty
[516]
LOA’s Case(s)
[517]
LOA’s Outline of Opening Submissions
[518]
Notice of need to amend
[523]
LOA’s Outline of Closing Submissions
[528]
Determination
[534]
Closing ground 1 – misconduct
[534]
Conclusion
[539]
Closing ground 2 – imminent and serious risk
[540]
Closing ground 3 – Misconduct based on alleged dishonesty and falsehood
[545]
Dishonest Non-Disclosure Allegation No 1 - Alleged Dishonest Failure to Disclose saying “the Offensive Words”
[546]
Untrue/Misleading Allegation No 1 - Mr Haley’s refuting allegation of aggressive etc behaviour
[551]
Untrue/Misleading Allegation No 2 - Statement Mr P “represent[ed] a risk and danger to the safety and welfare of the residents”
[552]
Untrue/Misleading Allegation No 3 - “That’s covered in my statement”
[556]
Dishonest Non-Disclosure Allegation No 2 - Mr Haley not disclosing it was his voice on the audio recording
[560]
Dishonest Non-Disclosure Allegation No 3 – “No change to make”
[564]
Untrue/Misleading Allegation No 4 – Mr and Ms P had made “false and malicious allegations”
[566]
Statement No 9 – Subjected to a physical assault
[568]
Statement No 9 – Part 1: Subjected to a physical assault
[570]
Statement No 9 – Part 2: Seeking to avoid criminal charges
[577]
Conclusion
[581]
MR HALEY’S CLAIMS UNDER S 340(1) OF THE FW ACT
[582]
Provisions and principles
[584]
Adverse action
[586]
Dismisses the employee
[587]
Injures the employee
[589]
Alters position of employee
[590]
Workplace right
[591]
Complaint or inquiry
[592]
“Is able”
[594]
“In relation to”
[599]
Adverse action because of exercise of workplace right
[600]
Did Mr Haley make a complaint or inquiry before 3 July 2020?
[607]
Did Mr Haley make a complaint or inquiry after 3 July 2024?
[609]
Alleged Complaint/Inquiry No 8
[610]
Alleged Complaint/Inquiry No 9
[613]
Did LOA summarily dismiss Mr Haley from his employment because he had made a complaint or inquiry in relation to his employment?
[614]
OTHER CLAIMS
[618]
Adverse action other than dismissal
[619]
Claims based on contraventions of National Employment Standards
[631]
Excessive hours (s 62 of the FW Act)
[632]
Notice of Termination (s 117(1) of the FW Act)
[635]
Termination without notice (s 117(2) of the FW Act)
[642]
“Final Pay” claim
[645]
Long Service Leave Claim
[651]
The LSL Act
[652]
Mr Haley’s claims and LOA’s response
[659]
Determination
[664]
DISPOSITION
[674]
INTRODUCTION
At 5:09 pm on Friday, 24 July 2020, Mr Simon Chatwin, then the Commercial Director of the respondent (LOA), sent to the applicant, Mr Haley, an email attaching a letter (Termination Letter) dated 24 July 2020 stating that “Laing O’Rourke has made the decision to terminate” Mr Haley’s employment with LOA “for serious misconduct, with immediate effect”.[1] The Termination Letter asserted Mr Haley had engaged in two classes of serious misconduct. The first is that Mr Haley lied to another employee of LOA, Mr Curnow-Rose, in the course of a purported investigation by Mr Curnow-Rose of a complaint Mr and Ms P, the owners of a property at Pambula (Pambula Property), made to LOA about an incident (Incident) that occurred in the late night and early morning of 2 and 3 July 2020 at the Pambula Property. The second class of serious misconduct the Termination Letter asserted Mr Haley engaged in is conduct during the Incident that constituted “[s]erious breaches of company policies, including the Code of Conduct”, which “caused imminent and serious risk to the reputation of” LOA.
[1] Exhibit TH-E4-168 (CB1733)
In this proceeding, Mr Haley, who is not legally represented, denies he lied to any person in the course of any investigation, or that he engaged in any conduct that justified LOA’s summarily dismissing him; and, in any event, Mr Haley says that LOA did not terminate his employment because LOA believed Mr Haley did any of these things. Mr Haley claims LOA terminated his employment because he had made complaints or inquiries in relation to his employment and, by so doing, exercised the workplace rights provided for by s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act). In these circumstances, Mr Haley claims that by terminating his employment LOA, in contravention of s 340(1) of the FW Act, took adverse action against him because Mr Haley exercised his workplace rights. Moreover, and in any event, Mr Haley claims LOA was not entitled to summarily dismiss him from his employment and, by doing so, LOA breached his contract of employment. Mr Haley also makes additional claims, which I will identify later.
QUESTIONS ARISING
In these reasons for judgment, therefore, I consider two principal sets of questions. The first is whether LOA has discharged the onus of proving the matters on which, in its response (LOA Response) to Mr Haley’s amended Form 2 (Application), it relies as justifying its decision to summarily dismiss Mr Haley from his employment. The second is whether, as Mr Haley claims, he exercised any workplace rights and, if so, whether LOA, through Mr Chatwin, summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin in his first affidavit says he decided LOA should summarily dismiss Mr Haley from his employment. There are other questions that arise; but I will identify and consider these after I consider and determine the two principal sets of questions.
I have framed the first set of questions in the terms I have because, as will appear later, LOA purported to advance a case based on substantial allegations, including allegations of dishonesty, it does not allege in the LOA Response, and on which its counsel did not open.
ARRANGEMENT OF REASONS
These reasons are arranged as follows:
(a)First, I address a number of preliminary matters. In particular, I identify in general terms the evidence that is relevant to determining what occurred during the Incident and the conduct in which Mr Haley engaged during the Incident, and the rulings I made to objections Mr Haley made to the admissibility of much of that evidence; I will say something about the relevance of the substantial evidence that was adduced that relates to LOA’s purported investigation or investigations of the complaints Mr and Ms P made; I will address LOA’s submissions on the general credibility of Mr Haley and Mr Chatwin; I will set out the basic principles concerning the elements of fraudulent misrepresentations; and I will discuss some principles relating to the procedure that must be observed when a party to litigation alleges dishonesty, and the standard of proof in relation to such allegations.
(b)Second, I will set out in narrative form the evidence or the effect of the evidence. In the course of doing so I will make unqualified statements of fact which, unless the context suggests otherwise, are to be taken to reflect my findings of the facts stated. I will otherwise identify evidence that is relevant to an event of interest, and consider at that point, or later in my reasons, whether I should accept that evidence and consider what findings, if any, I should make in the light of such evidence I do accept.
(c)Third, I will consider Mr Haley’s claims that LOA was not justified in summarily dismissing him from his employment.
(d)Fourth, I will consider Mr Haley’s claims based on s 340(1) of the FW Act.
(e)Fifth, I will identify and consider the other claims Mr Haley makes.
PRELIMINARY MATTERS
Evidence of the Incident
The central event out of which this proceeding arose is the Incident and, more particularly, Mr Haley’s conduct during the Incident. As will appear later, there were a number of employees of LOA who were present during the Incident. Mr Curnow-Rose, an employee of LOA who occupied the position of “Human Capital and Industrial Relations Lead”, interviewed a number of the employees (including Mr Haley), as well as Mr and Ms P, about their recollections of the Incident; Mr Curnow-Rose recorded what the employees and Mr and Ms P said (records of interview); and a report was prepared (which I later identify as the “Second Purported Investigation Report”) partly on the basis of which, LOA claims, Mr Chatwin decided that LOA should summarily dismiss Mr Haley from his employment.[2] LOA, however, has not called any of the employees, or Mr or Ms P, to give evidence about what occurred during the Incident and, in particular, about what Mr Haley said and did during the Incident; and the only witness LOA has called, Mr Chatwin, was not present at the Incident.
[2] I have at this point used the passive voice in relation to the preparation of the Second Purported Investigation Report because there is an issue about whether one or more persons prepared that report.
In those circumstances, LOA relies on three classes of evidence to prove that Mr Haley lied in the course of Mr Curnow-Rose’s purported investigation of the complaints Mr and Ms P made, and to prove that Mr Haley otherwise engaged in conduct during the Incident that warranted his summary dismissal.
(a)The first is evidence of what LOA claims are admissions Mr Haley made at “the show cause meeting” he attended on 22 July 2020 (Show Cause Meeting or Show Cause Meeting of 22 July 2020).
(b)The second is part of the record of interview of Mr and Ms P of 6 July 2020 which has been incorporated, together with the other records of interview, as a schedule to the Second Purported Investigation Report on which LOA claims Mr Chatwin relied when deciding to summarily dismiss Mr Haley.
(c)The third item of evidence is an audio recording (which I later identify as “the audio recording”) Ms P made towards the end of the Incident. Particularly relevant is no more than 15 seconds of the audio recording which captures two sets of words which (it is common ground) Mr Haley uttered. The first set of words are “Go home you fucking silly old cunt”. As I find later, these words are spoken in the background at the same time as words are being spoken to Mr and Ms P by other persons in the foreground; and Mr Haley’s words can be picked up only if attention is directed away from the words the audio recording records being spoken to Mr and Ms P in the foreground. The second set of words are “go home old man, old lady. Go home, go home, go home, go home”. These words are also spoken in the background, but they are more distinct because, for the most part, they are not uttered at the same time as words are being uttered in the foreground.
In its written submissions, LOA refers to the two sets of words the audio recording picked up Mr Haley uttering as “the Offensive Words”; and it represents these words as constituting one utterance which Mr Haley addressed or directed to Mr and Ms P. LOA submits that Mr and Ms P heard Mr Haley utter “the Offensive Words”. It is a prominent feature of this case, however, that there is no evidence that Mr or Ms P ever claimed or alleged that Mr Haley said, or said to them, “Go home you fucking silly old cunt”, or words to that effect; and although in the record of interview of 6 July 2020 (to which I will refer later) Ms P says that Mr Haley “started chanting, go home old man, old lady”, Ms P also alleged that Mr Haley “had to [be] restrained, said he was going to f-up the old man and lady. I don’t know who was restraining him”.[3] The audio recording, however, does not support that allegation; and LOA does not submit that Mr Haley “had to [be] restrained, said he was going to f-up the old man and lady”; nor was this claim or allegation the subject of what I later identify as the “First Purported Investigation Report”, or of the Second Purported Investigation Report. Further, in neither of the First Purported Investigation Report or the Second Purported Investigation Report is it recorded that Mr and Ms P alleged or claimed that Mr Haley said “the Offensive Words”, and LOA has not called Mr and Ms P to give evidence in this proceeding to say that they heard Mr Haley say “the Offensive Words”. Notwithstanding these matters, LOA submits that I should infer that Mr and Ms P in fact heard “the Offensive Words”. I address that submission later in these reasons; but it should be appreciated at the outset that much of LOA’s case, as alleged in the LOA Response, and as purportedly advanced in final submissions, that Mr Haley lied or otherwise engaged in misconduct warranting summary dismissal, relies on my drawing an inference about a matter that Mr and Ms P could have given direct evidence, if called and if true, that Mr Haley said to them, and they heard him say, “the Offensive Words”. LOA has given no evidence that it attempted to obtain evidence from Mr and Ms P, and LOA has otherwise not identified any reason why it did not call Mr and Ms P to give evidence.
[3] Exhibit STC-1, CB1539
At the hearing Mr Haley objected to my admitting into evidence the Second Purported Investigation Report, and the records of interview that formed schedules to that report, on the ground of hearsay.[4] Counsel for LOA submitted that LOA was relying on these documents for a non-hearsay purpose, namely, as evidence of material on which LOA submits Mr Chatwin relied when deciding to terminate Mr Haley’s employment.[5] I formed the view that this material was relevant for that (non-hearsay) purpose. In relation to another item of (hearsay) evidence, LOA submitted s 69(2)(b) of the Evidence Act 1995 (Cth) (Evidence Act) applied. After hearing further submissions, I decided I would deal with the evidence on which LOA relies, including the Second Purported Investigation Report, and the records of interview, on the basis that I would apply the rules of evidence to determine whether I would in fact rely on the evidence.[6] This is consistent with the basis on which I admitted into evidence Mr Haley’s affidavits:[7]
Now, Mr Haley . . . can I say what my approach will be to evidence. Even though – and this saves time, and on one view, this is how the Evidence Act should apply – I will only act . . . in relation to evidence that’s relevant to a contested issue, [and] I will apply the rules of evidence to it. So it’s not a question of something being slipped in that I’m going to, or parties can take advantage of it. I will certainly apply the rules of evidence, and there’s only really two basic rules, and that’s the rule against hearsay and the many exceptions to it, and the other is opinions.
[4] T207.20
[5] T207.30
[6] T220.30-T222.5
[7] T40.30. My statement “on one view, this is how the Evidence Act should apply” was intended to be a reference to s 190 of the Evidence Act 1995 (Cth)
I have concluded that the representations contained in the records of interview, being relevant for a non-hearsay purpose, are admissible as hearsay pursuant to s 60(1) of the Evidence Act. That is to say, representations contained in the records of interview about the events that constituted the Incident are admissible as evidence of the fact intended to be asserted by the representations. LOA has not submitted that any of the representations contained in the records of interview are false, or should otherwise be given no credit.
Mr Haley also objected to my admitting into evidence the audio recording on the ground that it was made contrary to the Surveillance Devices Act 2007 (NSW). I overruled that objection and admitted into evidence the audio recording.[8]
[8] Exhibit A
Relevance of evidence of investigation(s)
Mr Haley makes a number of allegations and submissions about the adequacy, fairness, and lack of good faith of LOA’s purported investigation or investigations of the allegations Mr and Ms P made about his conduct. In the Application Mr Haley alleges, among other things, that the purported investigator, Mr Curnow-Rose, was neither independent nor impartial;[9] that his investigation was neither comprehensive nor complete;[10] Mr Haley was denied procedural fairness;[11] and the outcome of the investigation “had been determined prior to” the Show Cause Meeting of 22 July 2020.[12] In his opening address, by which time Mr Haley, by notices to produce, had gained access to LOA’s internal documents, Mr Haley claimed that LOA had conducted two investigations, one of which he was aware, and the other of which he was not aware;[13] the interviews that were conducted in connection with the investigation were targeted against Mr Haley personally;[14] and there was no evidence to substantiate the claim the investigator purportedly concluded had been “substantiated”.[15] In his closing written submissions, Mr Haley submitted that the purported investigation process was “procedurally unfair, non-compliant with [LOA’s] policies and evidently conducted in bad faith”;[16] and the purported investigation in relation to which the purported investigator found Mr Haley lied was not the subject of the original complaint Mr and Ms P made.[17]
[9] Application, [34.c.iv]
[10] Application, [19.a. b.]
[11] Application, [34]
[12] Application, [34.c.vii.]
[13] T14.25
[14] T14.20
[15] T14.20
[16] Applicant’s Submissions, [29]
[17] Applicant’s Submissions, [34]
LOA, on the other hand, submits as follows:
(a)Mr Haley’s contention that he was denied procedural fairness is misconceived and without substance; and that is because at common law an employer is not required to afford procedural fairness before dismissing an employee; and there was nothing in Mr Haley’s employment contract that required LOA to afford him procedural fairness.[18]
(b)LOA’s guidelines relating to the investigations of complaints were not terms of Mr Haley’s employment contract; and, in any event, those guidelines provided that LOA would apply them “generally”, and could depart from them in circumstances LOA deemed it appropriate.[19]
(c)Mr Haley’s contention that the investigation was not the subject of the original complaint Mr and Ms P made “is misconceived” because Mr Haley has not brought a claim of unfair dismissal; LOA was not obliged to conduct the investigation strictly within the bounds of the “original complaint”; and that, in any event, the description of the complaint, as it was communicated to Mr Haley, was broad enough to encompass the misconduct for which LOA eventually terminated his employment.[20]
[18] Respondent’s Outline of Closing Submissions, [155]-[157]
[19] Respondent’s Outline of Closing Submissions, [158]
[20] Respondent’s Outline of Closing Submissions, [159]
It is the case that, subject to any express contrary term in the contract of employment, an employer is not obliged to afford an employee procedural fairness before the employer decides to summarily dismiss the employee; and it is also the case that an employer may investigate and make enquiries that relate to any matter within the scope of an employee’s employment. But that does not mean that evidence concerning the investigation or investigations LOA purportedly carried out of the complaints Mr and Ms P made, and the nature and quality of such investigation or investigations, are not relevant to Mr Haley’s claims. Such evidence is relevant in a number of ways.
First, LOA contends that Mr Chatwin was the person who made the decision, on behalf of LOA, to summarily dismiss Mr Haley from his employment. Mr Chatwin, in his first affidavit, says that he was provided with what I have described as the Second Purported Investigation Report; and he formed a view, “as reflected in the findings” contained in that report,[21] on the basis of which, together with other reasons, Mr Chatwin says he decided that LOA should summarily dismiss Mr Haley from his employment. Evidence of the investigation or investigations that led to the investigator to make the findings on which Mr Chatwin says he relied is relevant to identifying the persons who were involved, and the roles they played in the investigation. That, in turn, is relevant to assessing whether it should be accepted, as LOA contends it should be accepted, that Mr Chatwin, and Mr Chatwin alone, made the decision that LOA should summarily dismiss Mr Haley from his employment, or whether another person or persons made that decision or joined with Mr Chatwin in making the decision; or, even if Mr Chatwin alone made that decision, or joined others in making that decision, whether his mind is the only mind relevant to assessing whether LOA summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin states in his first affidavit.[22]
[21] Affidavit S T Chatwin 28.06.2021, [40]; CB305
[22] See Wong v National Australia Bank Limited [2022] FCAFC 155, at [25]-[26]
Second, LOA seeks to contend (I say “seeks”, because LOA has not pleaded such a case, something to which I will return when I consider LOA’s contention) that Mr Haley manifested a “lack of candour in the investigation”, and he did so by “making certain non-disclosures”, and by failing to admit certain things.[23] LOA does not in its written submissions refer to the legal basis on which it submits Mr Haley had a duty of candour in the course of the investigation; but it may be taken that LOA has in mind the duty Herron J identified in Associated Dominion Assurance Society Pty Ltd v Andrew: [24]
[A] duty lies on an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure. . . .
Question asked relating to the employee’s activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer’s legitimacy. It certainly could destroy all confidence between master and servant which is an essential feature of all such contract.
[23] Respondent’s Outline of Closing Submissions, [143]-[152]
[24] Associated Dominion Assurance Society Pty Ltd v Andrew (1949) 49 SR (NSW) 351, at pages 357 and 358
The employee’s obligations to answer his or her employer’s questions, and otherwise disclose information to his or her employer, however, are not unqualified. Habersberger J made that point in Carter v The Dennis Family Corporation. [25] After quoting from Herron J’s judgment in Associated Dominion Assurance Society Pty Ltd v Andrew, Habersberger J said: [26]
[26] Carter v The Dennis Family Corporation [2010] VSC 406, at [486]-[487] (footnotes omitted)
The process of questioning must be fair and reasonable. Moreover, as Judd J said in Howard v Pilkington (Australia) Ltd the questioning must be:
a genuine investigation ... to properly inform the employer of the true character or extent of the employee’s conduct.
His Honour held that in the case before him:
the investigation was a managed process, designed to accumulate material to justify Mr Howard’s early termination. Mr Kruger’s written interrogation of Mr Howard was demonstrated to be a charade, designed to justify his dismissal for failure to co-operate. This is no doubt why Pilkington did not rely upon Mr Howard’s responses as a justification.
Counsel for the defendant correctly pointed out that the right to terminate an employee at common law is not subject to a right on the part of the employee to be heard in his own defence. However, the point made by the plaintiff is different. It is that DFC should not be entitled to submit that Mr Carter’s answers to the 28 questions constituted serious misconduct or a repudiation of the employment contract when the questions were not a genuine search for information and were not put in a fair and reasonable manner in that sufficient time was, quite unnecessarily, not allowed for the answering of the questions.
Evidence relating to the nature and quality of the purported investigation that led to a person or persons who purported to make the findings on which Mr Chatwin says he relied, therefore, is relevant to determining whether it was a genuine investigation; and, therefore, is relevant to determining whether questions asked of Mr Haley in the course of the purported investigation imposed an obligation on him to disclose information to LOA. As will appear later, I conclude that I cannot be satisfied that, at least after 6 July 2020, what LOA has described as an investigation into the allegations Mr and Ms P in fact made was a genuine investigation, that is, that it was a process by which LOA sought or intended to properly inform itself of the allegations Mr and Ms P made against Mr Haley. My non-satisfaction is based on LOA’s documents Mr Haley tendered into evidence, which LOA did not attempt to explain by calling as witnesses their apparent authors. The documents show the following:
(a)By 5:03 pm on 8 July 2020, Mr Curnow-Rose completed a document titled “Investigation Report Into Complaint Made by [Mr and Ms P]” (First Purported Investigation Report),[27] in which he found that the allegations Mr and Ms P had made in relation to Mr Haley were “substantiated”. The allegations that were the subject of the First Purported Investigation Report, however, did not include an allegation by Mr and Ms P that Mr Haley said “the Offensive Words”; and in any event is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning.
(b)Mr Curnow-Rose did not disclose, and no other employee or officer of LOA disclosed, to Mr Haley that Mr Curnow-Rose had completed his investigation into the allegations Mr and Ms P made against Mr Haley, or that Mr Curnow-Rose had found that those allegations had been “substantiated”.
(c)Instead, on or shortly after 9 July 2020 an officer or officers of LOA, whose identity I will refer to later, embarked on a process that led to the drafting and finalisation of the Second Purported Investigation Report. The Second Purported Investigation Report found that “the allegation” Mr and Ms P made against Mr Haley was “substantiated”. However:
(i)The “allegation” the Second Purported Investigation Report purportedly found was “substantiated” was not an allegation the First Purported Investigation Report found had been “substantiated”, and which that report identified; the allegation the Second Purported Investigation Report purportedly found was “substantiated” was an allegation that Mr Haley said “the Offensive Words” to Mr and Ms P. As I have already noted, however, there is no evidence that Mr and Ms P alleged Mr Haley said “the Offensive Words”, and neither the First Purported Investigation Report nor the Second Purported Investigation Report records that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”.
(ii)Further, and in any event, the purported finding that the “allegation”, namely, that Mr Haley said “the Offensive Words” “to” Mr and Ms P, was “substantiated” is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning.
[27] Exhibit TH-04-076, CB871
Third, if, as Mr Haley submits, the purported investigation was actuated by bad faith, and in particular, was a process that was directed to justifying an outcome that LOA had already determined, namely, to dismiss Mr Haley from his employment, this state of affairs would have a tendency to undermine LOA’s case that it summarily dismissed Mr Haley from his employment for the reasons stated in the Termination Letter, or for the reasons Mr Chatwin gives in his first affidavit, and that Mr Chatwin alone made the decision that LOA should summarily dismiss Mr Haley from his employment.
Fourth, evidence relevant to the nature and quality of the purported investigation that led to the investigator making the findings on which Mr Chatwin says he relied may be relevant to assessing the weight of evidence of what LOA alleges were admissions Mr Haley made. If the evidence supports Mr Haley having made the admissions LOA contends he made, the weight, if any, that is to be given to the admissions might need to be assessed by reference to the circumstances in which the admissions were made. Of potential relevance is the fact that LOA did not disclose to Mr Haley that by 5:03 pm on 8 July 2020 Mr Curnow-Rose had made a finding that “substantiated” the complaints Mr and Ms P made; and LOA did not disclose to Mr Haley that Mr and Ms P did not make the allegation which the Second Purported Investigation Report purported to find had been “substantiated”, namely, that Mr Haley said “the Offensive Words”. LOA’s failure to disclose these matters to Mr Haley may suggest that, to the extent I find he made the admissions LOA alleges he made, Mr Haley may have made the admissions on the basis of incorrect assumptions that may have been induced by LOA’s non-disclosures.
Credibility of Mr Haley and Mr Chatwin
In its counsel’s written submissions, LOA submits Mr Haley “was generally an unsatisfactory witness”, and, for that reason, Mr Haley’s evidence on any matters which are in dispute should not be accepted unless it is corroborated by contemporaneous records.[28] On the other hand, LOA submits that Mr Chatwin was “an honest and forthright witness”.[29] Mr Haley, for his part, submits that Mr Chatwin is not a credible witness.
[28] Respondent’s Outline of Closing Submissions, [20], [25]
[29] Respondent’s Outline of Closing Submissions, [26]
There are a number of observations that may be made about these submissions: First, as will appear later, the account Mr Haley gave of the Incident to Mr Curnow-Rose on 8 July 2020, and later, on 22 July 2020, to Mr Chatwin at the Show Cause Meeting, was corroborated or otherwise supported by the accounts of the Incident other employees gave to Mr Curnow-Rose, being accounts that LOA does not submit deserve no credit. Moreover, the account Mr Haley gave was entirely inconsistent with the allegations Mr and Ms P in fact made against Mr Haley; so inconsistent, in fact, that the allegations Mr and Ms P actually made against Mr Haley were not considered in the Second Purported Investigation Report and, for that reason, were not the subject of a finding that they had been substantiated, which implies the allegations had not been substantiated. As I have already noted, and as will appear later, the subject of the Second Purported Investigation Report was not an allegation that Mr and Ms P, or any other person, made against Mr Haley. Further, and as will also appear later, Mr Haley made statements during the Show Cause Meeting of 22 July 2020 that were consistent with the account he gave to Mr Curnow-Rose, the truth of which LOA has not challenged, and does not submit is to be given no credit.
Second, Mr Haley’s evidence about the Incident, and about the conversations and communications he says he had with employees of LOA which he claims constituted his making complaints or inquiries in relation to employment, are to be weighed against LOA’s not calling as witnesses persons whom it may reasonably be supposed was in its power to call to give evidence that contradicts or otherwise explains away the evidence Mr Haley gave during the purported investigation, at the Show Cause Meeting on 22 July 2020, and at the hearing.
Third, if the position is reached that Mr Haley made one or more complaint or inquiry in relation to his employment and, for that reason, he had exercised his workplace rights within the meaning of s 341(1)(c)(ii) of the FW Act, any adverse credibility finding against Mr Haley will be irrelevant to determining whether LOA summarily dismissed Mr Haley’s employment for the reasons it claims it did. Whether LOA will be able to prove it summarily dismissed Mr Haley from his employment largely, but not exclusively, turns on whether Mr Chatwin was the only person who made the decision on behalf of LOA to summarily dismiss Mr Haley and, if so, whether his evidence should be accepted.
Fourth, it is unnecessary to make any finding about whether Mr Chatwin was an honest witness. I do not, however, accept LOA’s submission that Mr Chatwin was a “forthright witness”. As I show later, Mr Chatwin in the two affidavits he made went no further than asserting that he, and he alone, made the decision that LOA summarily dismiss Mr Haley from his employment. In evidence given under cross-examination, however, Mr Chatwin said that he and LOA’s managing director, Mr Cathal O’Rourke, had discussions in relation to the termination of Mr Haley’s employment. Moreover, Mr Chatwin gave evidence that the “decision” Mr Chatwin made that Mr Haley be summarily dismissed was subject to Mr Chatwin’s discussing his “decision” with Mr Cathal O’Rourke who had “the right to potentially overturn my decision”;[30] and that Mr Cathal O’Rourke, “as the ultimate managing director of the business, of course, has the right of objection or the right to request more information” and, for that reason, Mr Chatwin “had to keep him [that is, Mr Cathal O’Rourke] informed” and, to that extent, Mr Cathal O’Rourke “was involved” in the decision to summarily dismiss Mr Haley from his employment.[31] These are not matters Mr Chatwin volunteered in his affidavits, something a “forthright witness” would have done.
[30] T393.25
[31] T285.20
My not accepting LOA’s submission that Mr Chatwin was a “forthright witness” is a reflection of the manner in which LOA elected to conduct its case. LOA has not called any witness that casts any doubt of the account of the Incident Mr Haley gave in the course of the purported investigation or at the Show Cause Meeting of 22 July 2020; and LOA has not called Mr and Ms P to give evidence that they heard Mr Haley say to them or at all “the Offensive Words”. LOA relies on a few statements Mr Haley made in the Show Cause Meeting, which LOA submits constitute admissions that, LOA further submits, are inconsistent with his account of what Mr Haley claimed had occurred during the Incident and, moreover, are a basis on which I should find that Mr Haley had lied to Mr Curnow-Rose. Further, LOA has not called as witnesses the author or authors of documents LOA produced in answer to the notices to produce Mr Haley had issued, and which he tendered. LOA has elected to conduct its case in this way, even though, in reasons for judgment I published on 6 September 2022, I noted the following:[32]
If, however, as Mr Haley appears to intend to submit at the hearing commencing on 19 September 2022, LOA’s documents suggest there were employees of LOA, other than Mr Chatwin, who were responsible for, or who joined in LOA’s decision to terminate Mr Haley’s employment, it may be open to Mr Haley to tender at the hearing the documents that he will submit show or suggest this; and to submit that LOA’s not calling the person or persons which the documents suggest may have made or joined in the making of LOA’s decision to terminate Mr Haley’s employment, is a basis for drawing with greater confidence inferences that are available to be drawn on the basis of the documents that other employees of LOA made or joined in the making of LOA’s decision to terminate Mr Haley’s employment.
[32] Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743, at [34]. In that judgment I dismissed Mr Haley’s application for leave to issue subpoenas to testify to a number of LOA employees, including Mr Cathal O’Rourke, Mr Bates, and Mr Sleeman. As will appear below, the names of Mr Bates but particularly Mr Sleeman appear in documents Mr Haley has tendered.
Finally, just in case this may be lost in the mass of evidentiary material with which these reasons deal, it is necessary to note here that I find later in these reasons that the effect of the evidence Mr Chatwin gave under cross-examination is that LOA’s decision to summarily dismiss Mr Haley from his employment was not Mr Chatwin’s to make; the power to make that decision rested in the hands of LOA’s managing director, Mr Cathal O’Rourke. And LOA has not only not called Mr Cathal O’Rourke to give evidence; Mr Chatwin has not given any evidence that he had in fact met Mr Cathal O’Rourke after Mr Chatwin (as he says) made the decision that LOA should summarily dismiss Mr Haley from his employment.
Some principles relating to fraudulent misrepresentations
In the LOA Response LOA alleges Mr Haley made 13 statements, each of which, it alleges, was false at the time he made them, and each of which, it further alleges, Mr Haley knew to be false at the time he made it. In short, LOA alleges that Mr Haley made 13 fraudulent misrepresentations.
There is a well-established, and substantial, body of principles that identify the type of representations that are capable of being made fraudulently, and the circumstances in which a person making them will be held to have made them fraudulently; and these principles have largely been stated in the context of actions in deceit. Under those principles, a false representation of fact will be held to have been made fraudulently if it has “been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”.[33] A representation as to a persons’ state of mind is capable of being a representation of fact, and will be held to be fraudulently made in the same manner as any other representation of fact may be held to have been fraudulently made.[34]
[33] Derry v Peek (1889) LR 14 App Cas 337, at page 374 (Lord Herschell)
[34] Edgington v Fitzmaurice (1885) 29 Ch D 459, at page 483: “A misrepresentation as to the state of a man’s mind is . . . a misstatement of fact”.
A representation of an opinion is also capable of conveying one or more representations of fact. This has been noted in many cases. Thus, in Smith v Land and House Property Corporation, Bowen LJ said:[35]
It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense, a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally, known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.
[35] Smith v Land and House Property Corporation (1885) 28 Ch D 7, at page 15
And in Campbell v Backoffice Investments Pty Ltd, French CJ said:[36]
Opinions may carry with them one or more implied representations according to the circumstances of the case. There will ordinarily be an implied representation that the person offering the opinion actually holds it. Other implied representations may be that the opinion is based upon reasonable grounds, which may include the representation that it was formed on the basis of reasonable inquiries. In the case of a person professing expertise or particular skill or experience the opinion may carry the implied representation that it is based upon his or her expertise, skill or experience.
[36] Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, at [33]
In these circumstances, a statement of opinion will be held to have been fraudulently made if the person expressing the opinion did not hold the opinion, or if the person was aware of facts that could not justify the opinion, or if the person was unaware of facts that could justify the opinion.
There are also cases where a person may fail to state something yet nevertheless be held to have made a fraudulent misrepresentation. These cases were described by George Spencer Bower:[37]
[T]here are cases where a man may positively lie by saying nothing, and where the circumstances are such that reticence or concealment may amount to active misrepresentation. One (and the more obvious) of the two main types of such reticence is the omission from a statement of all reference to qualifying fact, leaving what is stated to stand as an absolute, and therefore a false, representation. The other is to be found in those who “do a wilful stillness entertain”, when their previous declarations or acts bid them speak, in order to remove a delusion for the creation of which they are themselves responsible.
[37] Spencer Bower and Turner The Law of Actionable Misrepresentation, Butterworths, third edition 1974, at page 94
Finally, it may be useful to bear in the mind the following principles the plurality of the High Court stated in Krakowski v Eurolynx Properties Ltd:[38]
In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood. In Akerhielm v. De Mare the Privy Council said:
The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made. This general proposition is no doubt subject to limitations. For instance, the meaning placed by the defendant on the representation made may be so far removed from the sense in which it would be understood by any reasonable person as to make it impossible to hold that the defendant honestly understood the representation to bear the meaning claimed by him and honestly believed it in that sense to be true. . . . .
[38] Krakowski v Eurolynx Properties Ltd [1995] HCA 68; at [29]; (1995) 183 CLR 563, at pages 578-579
Alleging and proving fraud
It is an important and long-established principle that, in all cases based on fraud, “particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires”;[39] and “if a case of fraud is to be mounted, it should be pleaded specifically and with particularity”.[40] The “mere labelling of an allegation as fraud amounts to little”,[41] because “[n]obody can be expected to meet a case . . . upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest”.[42]
[39] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at page 538 (Kirby P). The quote was made in the context of actions to set aside judgments for fraud, but it was prefaced by the words: “As in all actions based on fraud”.
[40] Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39, at [26]. See also Lazarus Estates Ltd v Beasley [1956] 1 QB 702, at pages 712-713, where Lord Denning said: “The court is careful not to find fraud unless it is distinctly pleaded and proved”.
[41] Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at pages 294-295 (Dawson J)
[42] Wallingford v Mutual Society (1880) 5 App. Cas. 685, at page 701, being part of the passage set out in the judgment of Dawson J in Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at page 295
The requirement of clearly stating and proving allegations of fraud applies whether or not the allegation is made in a pleading. That point was made by Lord Buckmaster in Jonesco v Beard, where his Lordship said that where a judgment is sought to be set aside on the ground of fraud other than in an action “the necessity for stating the particulars of fraud and the burden of proof are no whit abated and all the strict rules of evidence apply”.[43]
[43] Jonesco v Beard [1930] AC 298, at page 301
It would also be useful to refer to the following passage from the speech of Lord Millett in Three Rivers District Council v Bank of England (No 3) (emphasis added):[44]
[A]n allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
[44] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, at [186]
Allegations of fraud are to be assessed having regard to s 140 of the Evidence Act. Subsection 140(1) provides that a court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities; but this must be read with s 140(2) which provides that in deciding whether it is satisfied a party has proved his or her case, the court may take into account the nature of the cause of action, the nature of the subject matter, and the gravity of the matters alleged. I propose to apply s 140 of the Evidence Act having regard to the well-known principles expressed by Dixon J in Briginshaw v Briginshaw (emphasis added):[45]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third statement of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
EVIDENCE AND SOME FINDINGS
[45] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at pages 361-362
Mr Haley’s employment and professional background
Mr Haley is a citizen of the United Kingdom (UK). He commenced employment in England in 2003 with a company that was a member of the group of companies (LOA group of companies) of which LOA is a member;[46] and until 24 July 2020, when LOA purported to summarily dismiss him from his employment, Mr Haley had been continuously employed by one or other member of the LOA group of companies.
[46] LOA is in fact a wholly owned subsidiary of Laing O’Rourke Australia Group Pty Ltd which, together with “its parent entity”, Laing O’Rourke Australia (Holdings) Limited is a member of the group of companies that is ultimately controlled by Laing O’Rourke Corporation Limited (Affidavit S T Chatwin 28.06.2021, [5] (CB299))
During his employment with one or other member of the LOA group of companies. Mr Haley studied for, and completed, a number of courses and qualified for a number of degrees and awards. These consisted of the following:[47]
[47] Affidavit T Haley 26.04.2021, [5]-[9] (CB166)
Degree/Award Institution Year conferred Bachelor of Science in Quantity Surveying Leeds Beckett University 2009 Member Chartered Institute of Arbitrators 2012 Master of Science in Construction Law & Dispute Resolution Leeds Beckett University 2013 Chartered Surveyor, and Fellow Royal Institution of Chartered Surveyors 2009, and 2016 Master of Studies in Construction Engineering University of Cambridge 2020
February 2018 – Mr Chatwin approaches Mr Haley to work for LOA
On about 5 February 2018 Mr Chatwin telephoned Mr Haley and inquired whether Mr Haley would be interested in a role in Australia. After Mr Chatwin had made a verbal offer during a video conference in late February or early March 2018, Mr Haley sent an email to Mr Chatwin stating that the move to Australia “would require us to remove the girls from an environment where they are extremely happy and take them in to a new environment where we will need to re-create, or improve, what we currently have”; Mr Haley’s wife “would also need to sacrifice her career to allow me to pursue mine”; and that “[w]e live a good life here in the UK which we enjoy and we would not be too disheartened to maintain the status quo”. After further negotiations Mr Chatwin and Mr Haley agreed to the salary Mr Haley would be paid if he were to accept a position in Australia.[48]
[48] Affidavit of T Haley, 26.04.2021, [36] (CB181-182)
On or before 19 June 2018 Mr David Sheehy,[49] an employee of LOA or of another member of the LOA group of companies, sent the following message to Mr Cathal O’Rourke requesting approval to offer Mr Haley employment with LOA:[50]
[49] T242.25
[50] Exhibit TH-E4-001 (CB339). The message was sent via LOA’s “SuccessFactor” system – see T240.45.
Hi Cathal,
Please req. to appoint Tom Haley – internal transfer from the UK
Tom has a Grade 7a commercial leader who we would be bringing over for a number of potential roles (depending on which one falls into place first):
•Commercial Leader to replace Cameron Richmond’s visiting role if we win RIA and Cameron goes onto that project.
•Commercial Leader for Western Sydney Airport
•Commercial Leader for Lina Wide
•Commercial Leader for Victoria Cross
•Commercial Leader for SCC
Tom is a long serving LOR Commercial Leader, ex Young Guns and is a well-established commercial leader in the UK (currently commercial leader the manufacturing division in the UK). Tom would be a highly likely succession option for Simon in the long run.
John O’Connor is really pleased with the move also to reinforce the team here.
Simon has agreed a salary at $390k + Super (high end, above Al Smith).
The document by which this request was made includes a section headed “Approvers”; and it records that on 14 June 2018 Mr Chatwin approved the request to appoint Mr Haley, and Mr O’Rourke and “Shared Services” approved that request on 19 June 2018.
At the time Mr Chatwin approached Mr Haley, Mr Chatwin knew, as was the case, that Mr Haley had a young family; and Mr Chatwin accepted in cross-examination that Mr Haley had made Mr Chatwin aware of the sacrifice Mr Haley was making to support Mr Chatwin “in the Australia hub”.[51]
[51] T252.5
There is in evidence a of copy of a letter dated 20 June 2018 addressed to Mr Haley from Ms Freckelton, LOA’s “Human Capital Advisor”, in which she confirmed “our offer of employment to you as a Commercial Leader”, and to which she attached “our Contract of Employment for your consideration”[52] There is also in evidence an email from “General HC Queries Australia – HC Shared Services” to Mr Haley sent on 20 June 2018 with the subject “LOR – Letter of Offer”.[53] The email was as follows:
Dear Tom,
Laing O’Rourke is delighted to offer you the position of Commercial Leader located at the Company’s North Sydney Office.
Please review the attached Letter of Offer outlining your employment conditions and advise if you have any questions in relation to this contract.
If you are satisfied with the details of this offer of employment please sign where indicated and return with a copy of your Passport and the Passport of those dependents being processed until your 482 visa application.
Once received, we will put you in contact with Allison McMillin who is our internal Immigration Agent who will assist you with processing your 482 visa application/transfer.
We will then make contact with yourself once your visa application has been approved to discuss a start date & commence relocation arrangements.
Congratulations, we look forward to welcoming you as part of the Laing O’Rourke Team!
[52] Exhibit TH-E-001 (CB340)
[53] Exhibit B
It is open to find that the “Letter of Offer” to which this email refers is a reference to Ms Freckelton’s letter dated 20 June 2018; and that, by this email, Mr Haley received a draft contract of employment.
On 21 June 2018 Mr Haley sent an email to Mr Chatwin in which he identified a number of matters he said required clarification.[54] Mr Chatwin responded by email sent on 28 June 2018 in which he added a response to each of the issues Mr Haley raised in the email he sent to Mr Chatwin on 21 June 2018. Relevant to one of the issues I am required to decide is item 5 of section 5 of the draft employment contract, which dealt with removal costs to Australia. Mr Haley, in his email, asked whether the costs of returning would be covered. Mr Chatwin responded as follows:
Return home isn’t included as part of the Contract of Employment as a return home sits outside of this. However, if you return back to LOR UK at our instruction then, if it is agreed and approved, we would pay. This all sits outside of the Contract of Employment.
[54] Exhibit B
25 July 2018 – Mr Haley signs contract of employment
It appears that on 28 June 2018 Ms Freckelton sent to Mr Haley a letter which is almost identical to the letter dated 20 June 2018 to which she attached a contract of employment.[55] I find that on 25 July 2018 Mr Haley signed the contract of employment that was attached to Mr Freckleton’s letter dated 28 June 2020 (Employment Contract).[56] Under the contract Mr Haley was to be employed on a full-time basis in the position of “Commercial Leader within the Clients & Markets Team”.
[55] Exhibit STC-1, CB360
[56] Exhibit STC-1, CB360
The Employment Contract contained terms that included the following:
(a)Mr Haley’s employment would commence on a date as mutually agreed, and would continue until terminated “in accordance with this contract”.
(b)Mr Haley would report to “the Commercial Director, Simon Chatwin”.
(c)Mr Haley would be initially located at LOA’s North Sydney office working as part of the Commercial team, but he may be required to work at other locations as LOA may require.
(d)Mr Haley would be required to work an average of 38 hours per week at times advised to him, and any reasonable overtime to meet the requirements of his role.
(e)Mr Haley was required to familiarise himself with LOA’s “Global Code of Conduct, as well as detailed policies, procedures, and other business rules . . . which are available through the intranet”, although these policies did not form part of the Employment Contract.
(f)Mr Haley’s employment was conditional on Mr Haley’s being legally entitled to work in Australia. In that regard, the Contract of Employment noted that Mr Haley intended that he would join LOA on a Long-Stay Temporary Business visa valid for four years, and that Mr Haley’s application for such visa would be “facilitated by [LOA’s] Migration and Relocation Officer”.
The Employment Contract also provided for the circumstances in which LOA could summarily terminate Mr Haley’s employment:[57]
[57] Clause 2, section 4 (CB365)
Summary Termination
If you are guilty of misconduct or commit a serious or persistent breach of a term or condition of this document, the Company may terminate your employment immediately without notice. Without limiting the generality [of] this clause, your employment may be terminated immediately without notice if you:
(a) engage in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment;
(b)engage in conduct that causes imminent and serious risk to a person's health and safety, or the reputation, viability, or profitability of the Company;
(c) inappropriately use, copy or disclose of any personal information (including sensitive information) or Confidential Information other than for the purpose of performing your duties;
(d) neglect the discharge of your duties;
(e) become bankrupt or enter into any arrangement or composition with your creditors which in the opinion of the Company affects the discharge of your duties;
(f) are convicted of any criminal offence other than an offence that in the opinion of the Company does not affect the discharge of your duties;
(g) commit any act that involves secret or undisclosed commissions: or
(h) are precluded by any provision of the Corporations Act from holding your position.
If you are terminated for misconduct, no payment will be made to you other than accrued entitlements up until the date of termination.
“Position Description” of Commercial Leader
There is in evidence a LOA document that is titled “Position Description” (Position Description) which relates to the position of “Commercial Leader”.[58] It provides that the person occupying the position of “Commercial Leader” reports to a “General Manager/Project Leader” and has a “[f]unctional supervisory responsibility for commercial staff, and other designated functional reports within a Region of the Hub”.
[58] CB398
In evidence given under cross-examination, Mr Haley said he first saw the Position Description as an annexure to Mr Chatwin’s affidavit; and that he never had any direct reports from the commercial team. Mr Haley said that persons from within the commercial team always reported through other people.[59] It was put to Mr Haley that this evidence was inconsistent with that part of his affidavit Mr Haley made on 13 July 2021 which responds to paragraph 23 of the affidavit Mr Chatwin made on 28 June 2021. In paragraph 23 of his affidavit, Mr Chatwin described the reporting structure in relation to the “Bushfire Project” (to which I will refer later). In Mr Haley’s affidavit he said that the “reporting line of the commercial team was direct to me”; and that this “was necessary due to the audit risk on the project and the necessary separation of those operationally overseeing the work and those who were processing and signing off payment”.[60] Mr Haley gave the following “clarification” about reporting lines on the “Bushfire Project”:[61]
I am a functional leader. I’m not a leader of day to day activities. So each individual, as I did, have two reporting lines. I had a reporting line to Simon Chatwin, and I had a reporting line to Paul Barrie. I reported to Simon Chatwin on functional matters and governance matters, and Paul Barrie on day to day matters. The people in my team were exactly the same. Paul Barrie supervised me, not Simon Chatwin, and the relationship was the same. So I understand where there might be some differences in the wording and – but hopefully my clarification there helps. I didn’t report direct to Simon Chatwin. I reported to Paul Barrie, and my commercial team had the exact same relationship, and that’s all that we’re clarifying.
[59] T95.5
[60] Affidavit of T Haley 13.07.2021, [23] (CB216)
[61] T109.35
I find that Mr Haley’s statement in paragraph 23 of his affidavit that the “reporting line of the commercial team was direct to [Mr Haley]” is incorrect. The only potential relevance of this finding, however, is to the general credibility of Mr Haley.
Mr Haley was also taken to the following sections of the Position Description:
•Plus: Acts at all times in accordance with Laing O’Rourke guiding principles and values; which means; working collaboratively as One Team across businesses; teams and functions; behaving with integrity in all dealings with others; and owns the safety and corporate responsibility agendas putting them at the heart of everything we do.[62]
. . . .
•Take a lead role building and maintaining a flexible commercially proactive, well informed, qualified and professional commercial team, portraying appropriate behaviours, deployed in a timely manner, and delivering to the required company performance standards.[63]
•Provide guidance to project teams in the handling of Main Contract and sub-contract contractual matters, disputes, notifications, correspondence and contractual claims. Support the project teams in the development, compilation, submission and agreement of such, including strategies and management plans to mitigate identified risks and maximise identified opportunities.[64]
[62] CB399
[63] CB402
[64] CB401
Mr Haley was asked whether he agreed that these quoted passages reflected the requirements of his role as a “Commercial Leader”. Mr Haley said that he agreed with the “general principle” expressed by the passages.[65]
[65] T98.20; T98.40
Mr Haley was also taken to that part of the Position Description which stated: “Promote and display Excellence + behaviours”.[66] That is a reference to the “Excellence Plus Behaviours” set out on the first page of the Position Description. These consisted of the following:
[66] CB402
•Executes: Drives lean execution; is structured and systematic; puts in place monitoring mechanisms and metrics.
•Client Focus: Builds enduring relationships with clients and stakeholders; puts self in the client’s shoes and understands their strategic drivers; reaches out and networks across the industry.
•Enthuses Others: Communicates a compelling vision of the future in a way which inspires and enthuses; helps people along the Laing O’Rourke journey; sets and upholds high standards; provides absolute clarity of outcomes but empowers and trusts people to deliver.
•Looks Ahead: Thinks strategically, looking ahead to the long-term; thinks broadly, anticipating a range of factors, scanning the external environment; comfortable managing complexity and envisaging possibilities.
•Learning and Innovation: Actively promotes organisational learning, continuous improvement and innovation to drive revenue and build margin.
•Energy: Has exceptional energy and drive to grow themselves and Laing O’Rourke; radiates passion and a determination to succeed.
•Nurtures Talent: Attracts, builds and develops talented teams with breadth and depth.
•Courage: Has confidence and courage to make the bold move; is decisive; seizes accountability for decision making.
•Emotions: Is resilient, tenacious and persistent; keeps on going despite setbacks; maintains a positive outlook; is open with feelings but not emotional.
Mr Haley was cross-examined about this part of the Position Description as follows:[67]
MR JEDRZEJCZYK: Yes. So you understand what I’m referring to by “excellence plus,” Mr Haley, in terms of what that reference means and ‑ ‑ ‑?‑‑‑I understand the – I’ve read the words and I know that I’m familiar with that term.
Yes, yes. And again, the question is, without suggesting that this is somehow a matter of contractual force, as a matter of your own understanding of your role as commercial leader and your responsibilities, do you agree that those responsibilities included promoting and displaying behaviours that were, let’s say, consistent with a high level of professionalism and ethical business practices. Do you agree with that?‑‑‑No.
You don’t agree with that?‑‑‑I read the words as they are:
Promote and display excellence plus behaviours
[67] T100.30-T101.25
And when you say, “excellence plus behaviours,” your understanding, Mr Haley, is that that’s a reference to the matters which are set out on page 398?‑‑‑I’ve seen the reference to “excellence plus behaviours” at the front. “Excellence plus” was a term that was used regularly in corporate communications, so I was familiar with the term.
Yes. And I’m just ask [sic] you that, when you said you see the words and you agree that you were required to “display excellence plus behaviours,” I just want to make sure that we all understand what you meant by that. And I’m suggesting to you that your understanding of “excellence plus behaviours” is derived from what’s set out on page 398. Is that correct?‑‑‑Well, if I can clarify. I think you’re putting words in my mouth. I didn’t agree that I was required to perform in accordance with those behaviours. I’ve said it’s in this document, in this position description, which isn’t in my contract. It says:
Promote and display excellence plus behaviours –
and I’m aware what “excellence plus” or the term is from corporate comms.
All right. And do you agree, Mr Haley, if I put it this way. That your understanding of your role as commercial leader and your responsibilities entailed in that role included promoting and displaying high standards of professional conduct and ethical behaviour. Do you agree with that?‑‑‑No.
You don’t agree with that?‑‑‑No.
So your evidence is that, in discharging your duties as commercial leader, your understanding was that there was no part of that job that involved displaying high standards of professional conduct and ethical behaviour?‑‑‑No.
This evidence is not relevant. As the cross-examiner himself stated, LOA does not suggest that the Position Description formed part of the Employment Contract; and LOA does not contend that, in deciding to summarily dismiss Mr Haley, it relied on Mr Haley’s not meeting the standards stated in the Position Description. Nor do I consider Mr Haley’s evidence to be relevant to his general credibility.
LOA’s “Global Code of Conduct” and other policies
In his cross-examination,[68] Mr Haley was taken to a document titled “Doing the Right Thing Our Global Code of Conduct” (Code of Conduct).[69] The foreword to the Code of Conduct states that it sets out LOA’s “commitment to operating globally in accordance with our ethical standards and in compliance with applicable laws”. The foreword further states:[70]
We will be judged on our actions and nothing - whether hitting targets, completing a job on time or even a direct instruction from a manager - is more important than doing the right thing. This Code applies to everybody within [LOA], at all levels, and we also expect our suppliers to follow and uphold the intent of the Code by complying with our related policies.
[68] T92.20
[69] T92.10. The document is at CB404.
[70] CB405
The Code of Conduct included the following statements:
(a)Everyone directly employed by LOA must follow the Code of Conduct.[71]
[71] CB409
(b)If any person thinks there may have been a breach of the Code of Conduct they must report it.[72]
[72] CB410
(c)Anything a person reports “will be treated in strict confidence and communicated on a need-to-know basis only.[73]
[73] CB410
You can raise concerns anonymously if you prefer to, although this may make it more difficult for us to investigate. We value the courage it takes to speak up about unethical behaviour and will never penalise you for raising a concern even if your suspicions prove to be unfounded. Raising a concern will not adversely affect your career. We will protect employees against malicious anduntrue allegations made against them. In such cases we may take disciplinary action against the person making the allegation.
(d)LOA:[74]
[74] CB410
will not tolerate any retaliation or discrimination of any kind against anyone who does the right thing. If you or anyone else you know is experiencing retaliation or discrimination, don’t put up with it – report it at once.
(e)LOA never “make or accept any improper payments to obtain, retain or improve business”.[75]
(f)LOA never:[76]
(i)falsify expenses or claim for expenses not incurred on legitimate company business;
(ii)make a false claim by knowingly misrepresenting or inaccurately recording time spent or materials or services provided; and
(iii)allow anyone else to act fraudulently on our behalf.
(g)LOA always abstains from “any decision-making process where our motives, loyalty or independence could be questioned”.[77]
[75] CB413
[76] CB413
[77] CB415
The second question was: “Did TH raised [sic] concern around project conditions allowance and office staff who were receiving the allowance?” In relation to that question:
(a)Mr Barrie said:[524]
[524] Exhibit TH-E4-196 (CB2014)
No. He was more against giving people the allowance.
(b)Mr Curnow-Rose said:[525]
MR put together project terms + conditions + HRS req to get allowance. Put this to Axel – Dane, Helen, Taneal. Pat Cashin agreed for allowance in the regions – but not for office based staff linked also to roster.
Tom was highly against the project allowance.
(c)Ms Salisbury said:[526]
Not to her directly. He was across some of his team to get the allowance + was supportive of them receiving it.
[525] Exhibit TH-E4-196 (CB2016)
[526] Exhibit TH-E4-196 (CB2023
There is other evidence about the subject of these questions. By email sent on 16 July 2020 to Mr Curnow-Rose and Ms Salisbury Mr Haley said he had not been provided “with the 30% project allowance on gross base salary despite working well in excess of the 53 hours per week and often working 6-7 day weeks”.[527] That email was forwarded to Mr Barrie who responded with the following email to Mr Curnow-Rose and Ms Salisbury:[528]
Don’t know where this has come from. Tom was always an advocate of ‘not’ really supporting the roster uplift, as he was wary of it being abused. He only became a supporter of it (in my mind) when he was able to use it to help get . . . on board, where he would work the weekends in support of the Grafton site team there.
The roster was only ever for those people who were subjected to working away from home and/or working the Saturday each fortnight as part of a shift, as well as being an overall compensate for employees for the mobile and flexible nature of the work. It was never intended for PMO staff in the main, .... although on one occasion we granted it to . . . who went to work away from home and did the shift hours too.
Tom’s hours (and a large amount of us, including me) were not subjected to the Roster/Uplift. I guess if Tom worked longer than his 40 hours, then that’s seen as part of Tom's own effort (recognising that he's a grade 7a) and not subjected by a roster, or working away from home.
[527] Exhibit TH-E4-161 (CB1683)
[528] Exhibit TH-E4-161 (CB1682)
Mr Barrie followed up this email one and a half hours later with the following email:[529]
Oh, and also, .... Tom held a meeting with his commercial and procurement staff and told them all why they wouldn’t qualify for the project uplift, which he was against. Holly Hatcher was in that meeting, she’d tell you how that one went. Apparently memorable
[529] Exhibit TH-E4-161 (CB1682)
The second item of evidence is the email to which I have already referred Mr Chatwin sent to a number of people in which Mr Chatwin said “we might be on shaky ground with Tom knowing what he knows on all of the uplift debates that he would have been part of”.[530] Mr Haley did not cross-examine Mr Chatwin about what he intended to convey by this part of the email.
[530] Exhibit TH-E4-162 (CB1685)
The third of the questions that was asked about Mr Haley’s complaints concerning the Project Allowance was: “Was TH the only member of the leadership group who did not receive the allowance and if so why?”. In relation to that question, Mr Barrie and Mr Curnow-Rose each answered “no”; and Ms Salisbury said: “No – PB didn’t get it. . . . only got it when he relocated”.
On the basis of this evidence I cannot be satisfied that Mr Haley was not offered the Project Allowance in circumstances where other persons in the same position as Mr Haley had been offered the Project Allowance.
Claims based on contraventions of National Employment Standards
Mr Haley claims that LOA contravened two sets of provisions which, s 61(3) of the FW Act, identifies as the “National Employment Standards”.
Excessive hours (s 62 of the FW Act)
In the Application Mr Haley says that, although the Employment Contract provided that Mr Haley would work for 38 ordinary hours a week, Mr Chatwin and Mr Barrie knew that Mr Haley was working for 70-80 hours per week.[531]
[531] Application, [87.a]
It may be taken that Mr Haley intends to rely on s 62 of the FW Act, which relevantly provides:
(1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee — 38 hours; or
(b) for an employee who is not a full-time employee — the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2)The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
(3)In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a)any risk to employee health and safety from working the additional hours;
(b)the employee’s personal circumstances, including family responsibilities;
(c)the needs of the workplace or enterprise in which the employee is employed;
(d)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e)any notice given by the employer of any request or requirement to work the additional hours;
(f)any notice given by the employee of his or her intention to refuse to work the additional hours;
(g)the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i)whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
To establish LOA contravened s 62(1) of the FW Act, Mr Haley must prove that LOA requested or required him to work the additional hours referred to in s 62(1), and that LOA’s requirement or request was unreasonable. Mr Haley has not alleged, and has otherwise not identified evidence that is capable of identifying the requests LOA conveyed to, or the requirement LOA imposed on, Mr Haley to work the additional hours he claims to have worked. Nor has Mr Haley adduced evidence that is capable of proving, in relation to any particular request LOA conveyed to, or the requirement LOA imposed on, Mr Haley, to perform additional work, that the additional hours LOA may have so requested or required were unreasonable.
Notice of Termination (s 117(1) of the FW Act)
In the Application Mr Haley alleges as follows:[532]
[532] Application, [87.b.]
Notice of Termination:
i.NES requires employers to give notice to the employee by either:
1. Delivering it personally;
2. Leaving it at my last known address; or
3. Sending it by pre-paid envelope to my last known address
ii. I confirmed my address to Murray Rose at the meeting on 08 July 2020.
ii.The decision to dismiss me was initially delivered by phone call at 4:45pm on Friday, 24 July 2020.
iv. This was followed up with a letter attached to an email and sent my personal email address at around 6:00pm on Friday, 24 July 2020.
v.Laing O’Rourke failed to meet the NES requirements in respect of giving notice of termination . .
Although he does not expressly so allege, it is apparent that Mr Haley relies on s 117(1) of the FW Act, which provides:
An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Section 117(1) must be read with s 28A(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), which provides:
For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate–by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
Subsection 117(1) of the FW Act does not apply to an employee identified in s 123(1) of the FW Act, one of which is “an employee whose employment is terminated because of serious misconduct”. Section 12 of the FW Act provides that “serious misconduct” has the meaning prescribed by the regulations, being reg 1.07 of the Fair Work Regulations 2009 (Cth), which relevantly provides as follows:
(1)For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2)For subregulation (1), conduct that is serious misconduct includes both of the following:
(a)wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii)the reputation, viability or profitability of the employer’s business.
Regulation 1.07 does not apply to Mr Haley because I have not accepted LOA’s claim that Mr Haley engaged in serious misconduct. For that reason, Mr Haley is not an employee whose employment has been terminated because of serious misconduct.
It is the case that at his meeting with Mr Curnow-Rose on 8 July 2020 the following words were exchanged:[533]
MCR – Can I pleas [sic] get your home address?
TH - . . . Street, Balgowlah NSW, 2093. It might be different in the system, we moved a couple months ago.
[533] CB846
It is also the case that LOA communicated the Termination Letter by email Mr Chatwin sent at 5:09 pm on 24 July 2020; and LOA, therefore, has not “given”, within the meaning of s 28A(1) of the Acts Interpretation Act, to Mr Haley “written notice of the day of the termination”. That means that LOA contravened s 117(1) of the FW Act, being one of the “National Employment Standards” as defined in s 61(3) of the FW Act; which, in turn, means LOA contravened s 44(1) of the FW Act, which provides that an “employer must not contravene a provision of the National Employment Standards”.
Termination without notice (s 117(2) of the FW Act)
In the Application, in a section headed “Breach of Contract (Notice Period)”, Mr Haley alleges as follows:[534]
Laing O’Rourke are obliged to provide three months’ notice in writing or make payment in lieu of all or part of the notice period, in accordance with clause 2, section 4 of the Contract.
Laing O’Rourke breached this obligation by summarily dismissing me and not providing three months’ notice in writing or making payment in lieu of all of the notice period.
Laing O’Rourke issued their final payment statement on 28 July 2020 and an amount equal to all of the notice period was not paid.
[534] Application, [26]-[28]
These allegations reflect the evidence; and given Mr Haley was not an employee referred to in s 123(1) of the FW Act, the allegations fall within s 117(2) of the FW Act, which provides:
The employer must not terminate the employee’s employment unless:
(a)the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b)the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
I will invite submissions on whether it is open to Mr Haley to claim that the matters he alleges in the Application constitute not only a breach of the Employment Contract, but also a contravention of s 117(2) of the FW Act.
“Final Pay” claim
In the Application Mr Haley alleges that, pursuant to cl 4 of s 5 of the Employment Contract, there had accrued to him an amount that represents the costs of an annual flight. That clause provides as follows:
The Company will provide you and any dependents with one way direct business class airfares from Manchester, United Kingdom to Sydney, Australia. The Company will also provide you and any dependents with one return direct business class airfares, from Sydney, Australia to Manchester, United Kingdom, per financial year, while you are based in the Australia Hub. These airfares will in most circumstances be booked by the Company. If they aren’t, please retain your receipts for reimbursement of your airfare costs.
Mr Haley submits that his right to receive payment accrued during what Mr Haley submits was the LOA financial year from April 2020 to March 2021.[535]
[535] Applicant’s Submissions filed 21 November 2022, [9]
LOA submits Mr Haley’s case is that LOA was obliged to pay Mr Haley an amount equal to the monetary value of flights which he did not take. LOA submits this is not a plausible construction of cl 4 of s 5 of the Employment Contract; the correct view, LOA submits, is that LOA “promised to reimburse Mr Haley for the cost of return flights that he and his family actually took during each financial year that he was based in the Australia Hub”.[536]
[536] Respondent’s Outline of Closing Submissions, [296]
I accept LOA’s submission that, on its proper construction, cl 4 of s 5 of the Employment Contract obliged LOA to reimburse Mr Haley once a year the cost Mr Haley would incur for he and his dependants flying business class from Sydney, Australia to Manchester, United Kingdom, per financial year, while Mr Haley is based in the Australia Hub; and it is the case that that obligation, being a contingent and executory obligation, was discharged when LOA repudiated (as I have found) the Employment Contract.
That, however, is not the end of the matter; the question that must be asked is whether, but for LOA’s repudiation of the Employment Contract, Mr Haley and his dependents would have travelled from Sydney, Australia to Manchester, United Kingdom and, by so doing, he would have become entitled to being reimbursed the costs of business class tickets. It is highly likely that, had LOA not repudiated the Employment Contract, Mr Haley and his dependents would have done that at least once. It is in fact the case that following LOA’s repudiation of the Employment Contract, Mr Haley and his dependents did fly from Sydney, Australia to Manchester, UK. Mr Haley, therefore, would be entitled to damages that would equate to the costs of the business class ticket he paid when he and his dependents left Australia less any amount LOA contributed towards the cost of Mr Haley and his dependents returning to the UK.
I will not now consider whether Mr Haley has adduced evidence to support such a claim for damages. The parties have agreed that, if Mr Haley succeeds on any of his claims, I should defer hearing submissions on damages, compensation, and penalty until after I publish my reasons on Mr Haley’s claims.
Long Service Leave Claim
Mr Haley claims he is entitled to be paid long service leave pursuant to s 4(2)(a)(i)(A) and (B) of the Long Service Leave Act 1955 (NSW) (LSL Act). Before I identify the grounds on which Mr Haley claims he is entitled to long service leave, it will be necessary to set out the relevant provisions of the LSL Act.
The LSL Act
The starting point is s 4(1) of the LSL Act which provides:
Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. . . .
The amount of the long service leave for which an employee is entitled is provided for in s 4(2)(a) of the LSL Act, which, so far as is relevant, provides as follows:
Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall—
(i)in the case of a worker who has completed at least 10 years service with an employer be—
(A) in respect of 10 years service so completed, 2 months, and
(B) in respect of each 5 years service with the employer completed since the worker last became entitled to long service leave, 1 month . . .
A critical notion is a worker’s “service with an employer”. The long service leave to which a worker is entitled under the LSL Act turns on the worker’s length of “service with an employer”. Paragraph (a) of s 4(11) of the LSL Act provides a “service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment”; and s 4(11)(a1) identifies circumstances in which service of a worker with an employer shall be “deemed to be continuous”.
Subsection 4(13) of the LSL Act provides circumstances where a worker will be considered to be in the continuous service of an employer even though the worker had been in the service of two or more employers. Relevant is s 4(13)(c) of the LSL Act, which provides:
Where . . . a worker has transferred from the service of an employer (in this paragraph called the first employer) being a corporation to the service of another employer being a corporation related to the first employer at the time of that transfer, then for the purposes of this section—
(i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transfer, and
(ii) the period of service which the worker has had with the first employer before the commencement of the service of the worker with that other employer (including any service which by reason of a prior transfer or prior transfers or for any other reason the worker is deemed by this section or, for the purposes of long service leave for such service, the worker is deemed by any Act or award to have had with the first employer) shall be deemed to be service of the worker with that other employer.
Paragraph (ii) of s 4(13)(b) specifies when a worker is “deemed to have transferred from the service of an employer to the service of another employer”, and that is:
only if before, concurrently with or within a period of two months after the termination of the worker’s services with the first mentioned employer the worker entered into a contract of employment with that other employer, and the transfer shall be deemed to have occurred at the time of that termination.
The word “corporation” is defined in s 4(13)(a) of the LSL Act to mean “any body corporate formed or incorporated in or outside New South Wales”; and s 4(13)(b)(i) of the LSL Act identifies when a corporation shall be deemed to be related to another company, and that is where the corporation is a “holding company”, a “subsidiary”, or a “subsidiary of the holding company”.
Potentially relevant to the determination of Mr Haley’s claim under the LSL Act are the provisions that identify the liability of the employer that accrues under the LSL Act. The liabilities are provided for in s 4(3) of the LSL Act, which is subject to s 4(5). These subsections are as follows:
(3) Subject to subsection (5), where a worker has become entitled to long service leave in respect of the service of the worker with an employer, the employer shall give to the worker and the worker shall take the leave—
(a) as soon as is practicable having regard to the needs of the employer’s establishment, or, where the employer and the worker agree that the taking of the leave be postponed until an agreed date, as from that date,
(b) in one continuous period or, if the worker and the employer so agree, in the following separate periods and not otherwise—
(i) where the amount of the leave is 2 months, in two separate periods,
(ii)where the amount of the leave exceeds 2 months and does not exceed nineteen and one-half weeks, in two or three separate periods,
(iii) where the amount of the leave exceeds nineteen and one-half weeks, in two, three or four separate periods—
Provided that where any leave has been given to and taken by the worker pursuant to subsection (3A), this subsection shall apply to and in respect of so much only of the leave to which the worker has become entitled as has not been so given and taken.
. . . .
(5)
(a)Where the services of a worker are terminated otherwise than by the worker’s death and any long service leave—
(i) to which the worker was entitled has not been taken, or
(ii)accrues to the worker upon such termination and has not been taken,
the worker shall, subject to subsection (13), be deemed to have entered upon the leave from the date of such termination and the employer shall forthwith pay to the worker in full the worker’s ordinary pay for the leave less any amount already paid to the worker in respect of that leave.
Mr Haley’s claims and LOA’s response
In the Application Mr Haley alleges he had continuous service with “the Respondent”, that is, with LOA, from 1 December 2003 to 24 July 2020 and, for that reason, he had accrued long service leave under the LSL Act.[537] Mr Haley also alleges he is entitled to long service leave under the Employment Contract.
[537] Application, [98]
LOA accepts that:[538]
during the period from 1 December 2003 to 23 September 2018, Mr Haley worked for different employers within the Laing O’Rourke group of companies. [LOA] is also a member of that group. Thus, each of Mr Haley’s employers during the period 1 December 2003 to 24 July 2020 was “related” to each other within the meaning of subsection 4(13)(b)(i) of the LSL Act (see paragraph 300 above). By the operation of the deeming provisions in subsection 4(13)(c), Mr Haley’s period of “service” for the purposes of s 4(1) may be taken to be 1 December 2003 to 24 July 2020, which amounts to approximately 17-and-a-half years.
[538] Respondent’s Outline of Closing Submissions, [310]
LOA submits, however, that Mr Haley is not entitled to long service leave under the LSL Act because, a worker’s entitlement to long service leave requires that the worker’s service with an employer have a “substantial connection” with New South Wales, and Mr Haley has not demonstrated that his service with LOA had a sufficient connection with New South Wales.[539]
[539] Respondent’s Outline of Closing Submissions, [311] – [320]
LOA relies on the following passage from the following reasons for decision of the Industrial Commission of New South Wales in Australian Timken Pty Ltd v Stone (No 2) (emphasis added):[540]
We are, therefore, in agreement with the appellant’s approach to the problem to the extent that it contends that the service involved must be connected with New South Wales. We think, however, that its submissions go too far when they involve the proposition that the service (subject to temporary absences) which is to be rewarded must be performed entirely in New South Wales. We think that the benefits provided for in the Act accrue if at the time the relevant event occurs (that is, completion, termination or cessation) the service which was being performed up to that time has a substantial connection with this State. This interpretation seems to us to accord with the purpose and policy of the Act without being in any way inconsistent with its language. …This view does not make it necessary, as in the case of workers’ compensation legislation, that the relevant event must occur within the State but it is essential that, at the time of its occurrence, the service, looked at as a whole, may fairly be said to be to a substantial extent New South Wales service. Whether it is or not must be a question of fact and degree in each case. If, however, the service is actually being performed here at the time when the relevant event occurs, this is strong although not conclusive evidence that the service has a substantial connection with New South Wales. … In summary we find that, while the place where the relevant event occurs is of important evidentiary significance, the critical test of liability is that, when that event occurs, there is service which, when looked at as a whole, is substantially connected with New South Wales.
[540] Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246, at pages 253-254
LOA, in its written submissions,[541] notes that in International Computers (Australia) Pty Ltd v Weaving, the Industrial Commission of New South Wales affirmed the approach it had taken in Timkem by holding that although “it is not necessary that all service should be substantially connected with New South Wales”, it “is essential that, at the time when the relevant event occurred, the worker’s service may be fairly said to be New South Wales service”.[542] LOA also referred to the judgment of Bromberg J in Cummins South Pacific Pty Ltd v Keenan (with whom Mortimer J, as her Honour then was, agreed) where his Honour considered whether the employee’s service in that case under the Long ServiceLeave Act 1992 (Vic) (Victorian LSL Act) demonstrated a substantial connection with Victoria.[543]
[541] Respondent’s Outline of Closing Submissions, [304]
[542] International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64, at page 74
[543] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [199]
Determination
There are three matters to note. The first is that, although Bromberg J in Cummins applied “the substantial connection” test, his Honour expressed “some doubt . . . about the correctness of the “substantial connection” test”.[544] The basis of his Honour’s doubt was that the only connection that was required to be shown between the obligation the Victorian LSL Act imposed on the employer and the territory of Victoria was the employer have some sort of connection with Victoria:[545]
Division 6 of the LSL Act imposes a liability on an employer to either provide an employee with leave or, on the termination of an employment, pay monies in lieu of untaken leave. The subject matter of that legislation is the imposition of a liability upon employers in respect of entitlements owed to their employees. The imposition of such a liability would only be valid where there exists a “relation of the person to the territory” and as Dixon J further stated that relation may consist of “presence within the territory, residence, domicil, carrying on business there, or even remoter connections”. It is those characteristics which may be regarded providing a real, even if a remote or general connection, between the State and the subject matter of the legislation.
The LSL Act should be construed as intended to have a valid operation.
Accordingly, by reference to the territorial limitation upon the legislative power of the Victorian Parliament, the provisions of Div 6 must be read as only imposing a liability upon an employer with a relation to or real connection with Victoria. Here, there can be no issue that the imposition of liability upon [the employer] in respect of long service leave entitlements owed to Mr Keenan is founded upon the requisite relation or connection between the imposition of liability upon [the employer] and Victoria. [The employer] has operated its business from premises in Victoria since 1995 at the latest.
[544] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [185]
[545] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [172]-[174]
The second matter to note is that two intermediate courts of appeal have concluded that the “substantial connection” test, and the approach of Bromberg J in Cummins, are wrong. In Infosys Technologies Ltd v State of Victoria,[546] the Court of Appeal of the Supreme Court of Victoria accepted that it is competent for the Parliament of Victoria to impose a liability on an employer to pay long service leave on the basis of even a remote connection between the employment and the territory of Victoria; but the question before it was one of construction. The Victorian LSL Act did not contain any provision about the territorial operation of that Act; in those circumstances, it is necessary to identify the “hinge” or “central conception” of the Victorian LSL Act, and require that to bear a connection with Victoria. All three judges held that the “central conception” of the Victorian LSL Act was “continuous employment”; and that s 48(b) of the Interpretation of Legislation Act 1984 (Vic) (Victorian Interpretation Act) applied to that conception, which required that the Victorian LSL Act applied only to continuous employment that has a connection with Victoria. Kennedy JA and McDonald AJA stated their conclusions as follows:[547]
Consistent with this approach, ‘continuous employment with one employer’, construed in light of s 48(b) of the ILA means ‘continuous employment with one employer in and of Victoria’. As to the meaning of ‘in and of’, in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society, McTiernan J stated in respect of s 17 of the Interpretation Act 1897 (NSW) (which is relevantly indistinguishable from s 48(b) of the ILA):
The phrase ‘in and of’ imports both situation and a close identification of the matter or thing with New South Wales. The phrase is a composite one and perhaps should not be divided.
Their Honours further said:[548]
Continuous employment in and of Victoria with one employer requires a close identification between the continuous employment and Victoria. It is unnecessary to exhaustively define the circumstances as to when such close identification will arise. However, as indicated already, they can extend beyond circumstances where an employee’s service with the employer is in Victoria. In any event, wherever the line is drawn, the employment of each of . . . . in India had no connection with Victoria at all.
[548] Infosys Technologies Ltd v State of Victoria [2021] VSCA 219, at [92]
In Wipro Limited v State of New South Wales,[549] the Court of Appeal of the Supreme Court of New South Wales substantially followed the approach of the Court of Appeal of the Supreme Court of Victoria in Infosys Technologies, without, however, relying on s 12(b) of the Interpretation Act 1987 (NSW), being the equivalent provision of s 48(b) of the Victorian Interpretation Act. Macfarlan JA (with whose reasons Simpson and Basten AJJA agreed) said:[550]
The decision of this Court in DRJ points clearly to the need to identify the “central conception” or “hinge” of the LSL Act for the purpose of determining its intended operation in relation to extraterritorial circumstances such as workers’ service at a place outside New South Wales. As the plaintiff submits, it is fundamental to the operation of the LSL Act that there be “continuous service” by the worker with an employer for one or other of the periods specified in the Act. This is evident from the central provision of the Act (s 4(1)), which confers an entitlement to long service leave based upon “the service of the worker with an employer”, this expression being defined in s 4(11) to mean “continuous service” under a contract of employment. . . .
As made clear in DRJ, once the relevant “central conception” of an Act has been identified, an inquiry as to its connection with New South Wales is to be undertaken. The performance of service within New South Wales is an obvious connecting factor but, depending upon the circumstances of particular cases, there may be other factors connecting the service to New South Wales, such as the relevant contract having been made in New South Wales or directions having been given in New South Wales for an employee to work outside the jurisdiction. As Kennedy JA and McDonald AJA, indicated in Infosys Technologies, the relevant substantial connection with the State (in that case Victoria) might be constituted by “employment performed inside Victoria, or in obedience to a direction emanating from Victoria, as well as employment formed in Victoria” (at [85]). This is not, and was not intended to be, an exhaustive description of possible connecting factors.
A third matter to note is that Mr Haley’s claim is a claim under s 4(5) of the LSL Act. Even so, it would be incorrect to characterise that claim as being the central conception of the LSL Act. As Kennedy JA and McDonald AJA, in Infosys Technologies, said in relation to the equivalent provisions of the Victorian LSL Act, s 4(5) of the LSL Act is “simply the occasion for an employee with an accrued long service leave entitlement, to receive the entitlement”.[551]
[551] Infosys Technologies Ltd v State of Victoria [2021] VSCA 219, at [77]
I am not bound to apply the approach Bromberg J applied in Cummins, and which the courts in Infosys Technologies and Wipro held to be wrong, because his Honour did not in fact apply that approach, and his Honour was doubtful that the “substantial connection” test was correct. I therefore propose to apply to Mr Haley’s claims under the LSL Act the approach that was applied in Infosys Technologies and Wipro. Under that approach, the question I must ask when determining Mr Haley’s claim under the LSL Act is whether his continuous service with members of the LOA group of companies constituted a connection with New South Wales, such as to give rise to a right to long service leave under the LSL Act. That question must be answered in the negative. Mr Haley’s employment with companies within the LOA group of companies had no connection with New South Wales until 25 September 2018 when he commenced employment with LOA; and the time for which Mr Haley continued with his employment with LOA after that day is not sufficient to give rise to an entitlement of long service leave under the LSL Act.
As at 24 July 2020, therefore, when LOA purported to terminate his employment, Mr Haley had accrued no entitlement to long service leave under the LSL Act.
Mr Haley also relied on the following paragraph from the letter dated 28 June 2018 by which LOA offered Mr Haley employment:[552]
Your accrued statutory entitlements, if any, will transfer with you, and Laing O’Rourke will recognise your employment as continuous. This means that your original commencement date, 1 December 2003, will be used to calculate any applicable statutory entitlements.
[552] Exhibit STC-1, CB358
The statutory entitlements to which this paragraph referred included statutory entitlements that had as at 28 June 2018 accrued to Mr Haley. Given that Mr Haley had not been employed in New South Wales before the date of the letter, there were no entitlements under the LSL Act that were capable of being transferred.
Mr Haley’s claims for long service leave, therefore, fail.
DISPOSITION
I propose to make a declaration that, by purporting to summarily dismiss Mr Haley from his employment LOA repudiated Mr Haley’s contract of employment, and contravened s 340(1) of the FW Act. I also propose to make a declaration that LOA contravened s 117(1) of the FW Act by not giving to Mr Haley written notice of the purported termination of his employment by delivering the notice to Mr Haley personally, or by leaving it at, or by sending it by pre-paid post to, Mr Haley’s address he last notified to LOA.
The parties have agreed that, if Mr Haley succeeds on any of his claims, I should defer hearing submissions on damages, compensation, and penalty until after I publish my reasons on Mr Haley’s claims. I am of the view that I should hear and determine the question of penalties after I have considered and determined the question of compensation and damages. I will therefore make directions for the filing and serving of written submissions on damages, compensation, and whether it is open to Mr Haley to claim on the basis of the findings I have made that LOA has contravened s 117(2) of the FW Act. I will reserve to the parties liberty to apply if the parties require further time than the time I propose to allow. I will otherwise list the matter for a directions hearing for the purpose of fixing the matter for hearing on the questions of damages and compensation.
I certify that the preceding six hundred and seventy-five (675) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 28 March 2024
- AGLC
- Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286
- Case
- [2024] FedCFamC2G 286
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
SYG 2432 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
THOMAS HALEY
Applicant
AND:
LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
28 MARCH 2024
THE COURT DECLARES THAT:
1. By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent repudiated its obligations under the contract of employment the respondent made with the applicant on or about 25 July 2018.
2. By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).
3. By failing to deliver personally to the applicant written notice of its purported summary dismissal of the applicant’s employment, or by failing to leave at, or send by pre-paid post to, the applicant’s address last notified to the respondent, the respondent contravened s 117(1) of the FW Act.
THE COURT ORDERS THAT:
4. By 12 April 2024 the applicant file and serve written submissions on whether it is open to the applicant to claim the respondent contravened s 117(2) of the FW Act, and on damages and compensation.
5. By 29 April 2024 the respondent file and serve written submissions on the issues referred to in order 4.
6. The matter be listed for a directions hearing at 4:15 pm (AEST) on 3 May 2024.
7. The parties have liberty to apply on such notice as the circumstances warrant for any reason, including varying orders 4, 5, or 6.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
QUESTIONS ARISING
[3]
ARRANGEMENT OF REASONS
[5]
PRELIMINARY MATTERS
[6]
Evidence of the Incident
[6]
Relevance of evidence of investigation(s)
[12]
Credibility of Mr Haley and Mr Chatwin
[21]
Some principles relating to fraudulent misrepresentations
[28]
Alleging and proving fraud
[35]
EVIDENCE AND SOME FINDINGS
[39]
Mr Haley’s employment and professional background
[39]
February 2018 – Mr Chatwin approaches Mr Haley to work for LOA
[41]
25 July 2018 – Mr Haley signs contract of employment
[48]
“Position Description” of Commercial Leader
[51]
LOA’s “Global Code of Conduct” and other policies
[59]
25 September 2018 - Mr Haley commences employment with LOA
[63]
Work performed by Mr Haley at commencement of his employment
[66]
Mr Haley expresses concerns about his role within LOA
[70]
The NSW Bushfire Clean-up Project
[74]
Mr Haley’s role in the Bushfire Project
[78]
Alleged complaints or inquiries made before 3 July 2020
[92]
Alleged Complaint/Inquiry No 1
[93]
Alleged Complaint/Inquiry No 2
[96]
Alleged Complaint/Inquiry No 3
[98]
Alleged Complaint/Inquiry No 4
[100]
Alleged Complaint/Inquiry No 5
[102]
Alleged Complaint/Inquiry No 6
[103]
Alleged Complaint/Inquiry No 7
[104]
The Incident – evidence
[108]
Persons who attended Pambula Property on evening of the Incident
[110]
Account apparently given by Ms P to “Amy”
[112]
Account apparently given by Ms P to Ms Woodford on 3 July 2020
[114]
Record of interview of Mr David Field – 8:48 am, 6 July 2020
[115]
Record of interview of Mr Shaun Boyle – 9:00 am, 6 July 2020
[117]
Record of interview of Mr David Grierson – 9:36 am, 6 July 2020
[121]
Record of interview of Ms P – 11:30 am, 6 July 2020
[125]
Ms P’s email sent at 1:55 pm on 6 July 2020
[127]
Record of interview of Mr Andrew Byrne – 12:02 pm, 6 July 2020
[128]
Record of interview of Ms Amy Lovell – 12:58 pm, 6 July 2020
[130]
Record of interview of Ms Lisa McKeever – 3:09 pm, 6 July 2020
[131]
Record of interview of Mr Shane Neely – 8:30 am, 8 July 2020
[132]
The audio recording
[133]
Record of interview of Mr Haley – 9:46 am, 8 July 2020
[156]
Record of interview of Mr Adam Neely – 1:32 pm, 8 July 2020
[166]
Second record of interview of Ms P and Mr P – 9:44 am, 9 July 2020
[167]
Second record of interview of Mr Andrew Byrne – 11:00 am, 13 July 2020
[168]
Second record of interview of Mr David Grierson – 3:00 pm, 14 July 2020
[171]
22 July 2020 - Show Cause Meeting
[174]
Alleged admissions
[188]
First Alleged Admission
[190]
Second Alleged Admission
[195]
Third Alleged Admission
[202]
The Incident – Principal Findings
[205]
What LOA submits occurred at the Incident
[205]
Mr and Ms P’s claims
[210]
Findings
[215]
LOA’s purported investigation of the Incident
[218]
Ms P sends photos and recording to Ms Woodford
[218]
Mr Barrie and others are notified of the Incident
[219]
Mr Curnow-Rose recommends standing down Mr Haley
[222]
3 July 2020 – Mr Curnow-Rose suspends Mr Haley’s employment
[225]
4 July 2020 – Mr Curnow-Rose sends letter to Mr and Ms P and Mr Haley
[227]
4 July 2020 – Mr Haley has a telephone conversation with Mr Curnow-Rose
[231]
6 July 2020 – Mr Curnow-Rose conducts further interviews including Ms P
[237]
1:55 pm 6 July 2020 – Ms P sends audio recording to Mr Curnow-Rose
[239]
6 July 2020 - Mr Curnow-Rose requires Mr Haley to meet him on 7 July 2020
[241]
6 July 2020 – Mr Curnow-Rose interviews Mr Byrne and others
[246]
8 July 2020 – Mr Curnow-Rose interviews Mr Haley and others
[247]
8 July 2020 – Mr Curnow-Rose submits First Purported Investigation Report
[248]
Was the First Purported Investigation Report a final report?
[250]
Contents of the First Purported Investigation Report
[252]
9 July 2020 – LOA sends letter to Mr Haley seeking further information
[257]
Matter #1
[269]
Matter #2
[272]
Matter #3
[276]
Matter #4
[279]
Matter #5
[281]
Matter #6
[283]
Matter #7
[288]
Implied representation that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”
[290]
Process that lead to the Second Purported Investigation Report
[291]
13 July 2020 – Mr Curnow-Rose interviews Mr Byrne
[293]
13 July 2020 – Mr Chatwin sends text message to Mr Haley
[294]
Mr Cathal O’Rourke’s role in the purported investigation
[295]
14 July 2020 – Mr Curnow-Rose interviews Mr Grierson
[309]
14 July 2023 – Mr Haley has a conversation with Mr McDevitt
[310]
5:21 pm 14 July 2020– Mr Haley sends response to 9 July Letter
[313]
Recording without consent
[315]
Location of listening device
[316]
Conduct of complainants
[317]
Physical harm and personal injury
[318]
Response to matters identified in 9 July 2020
[319]
Concluding statement
[320]
Cross-examination of Mr Haley on Response to 9 July Letter
[322]
False and malicious allegations
[323]
Conduct warranting criminal charges
[325]
Matter #2
[329]
Preparation of Second Purported Investigation Report
[334]
First Draft Executive Summary
[336]
First Draft Mr Curnow-Rose sent to Mr Sleeman at 3:53 pm on 15 July 2020
[339]
Second Draft Mr Sleeman sends to himself as at 10:21 pm on 15 July 2020
[345]
Mr Sleeman prepares further drafts
[350]
Eleventh draft – 6:32 pm on 16 July 2020
[354]
Second Draft Executive Summary
[358]
Twelfth Draft sent to Mr Cashin and Mr Chatwin
[359]
Further draft(s)
[361]
Mr Chatwin reviews Twelfth Draft and asks for further information
[362]
17 July 2020 – Second Purported Investigation Report Completed
[364]
The allegations the subject of the Second Purported Investigation Report
[365]
Identifying the person who made the purported finding
[374]
Additional matters
[375]
11:36 pm 15 July 2020 - Ms Haley communicates about the investigation process
[383]
20 July 2020 – Mr Haley sends Reflection Email
[392]
Events leading to the composition and sending of Reflection Email
[392]
The Reflection Email
[395]
Cross-examination on Reflection Email
[396]
Mr Haley’s motive(s) for sending Reflection Email
[410]
The Show Cause Letter
[419]
The drafting of the Show Cause Letter
[419]
The Show Cause Letter
[440]
Events after sending Show Cause Letter but before Show Cause Meeting
[448]
22 July 2020 – Show Cause Meeting
[449]
Events after the Show Cause Meeting but before Termination Letter sent
[450]
What the documents reveal
[450]
Mr Sleeman sends to Mr Chatwin and others “final” Termination Letter
[458]
Contents of the Termination Letter
[459]
The decision to terminate – was Mr Chatwin the decision maker?
[469]
Mr Chatwin’s first affidavit
[471]
Mr Chatwin’s second affidavit
[475]
Mr Chatwin’s cross-examination
[479]
Conclusion on Mr Chatwin’s evidence
[496]
Conclusion
[503]
MR HALEY’S CONTRACT CLAIMS BASED ON UNJUSTIFIED DISMISSAL
[507]
The “pleadings”
[507]
Whether LOA Response sufficient to raise dishonesty
[516]
LOA’s Case(s)
[517]
LOA’s Outline of Opening Submissions
[518]
Notice of need to amend
[523]
LOA’s Outline of Closing Submissions
[528]
Determination
[534]
Closing ground 1 – misconduct
[534]
Conclusion
[539]
Closing ground 2 – imminent and serious risk
[540]
Closing ground 3 – Misconduct based on alleged dishonesty and falsehood
[545]
Dishonest Non-Disclosure Allegation No 1 - Alleged Dishonest Failure to Disclose saying “the Offensive Words”
[546]
Untrue/Misleading Allegation No 1 - Mr Haley’s refuting allegation of aggressive etc behaviour
[551]
Untrue/Misleading Allegation No 2 - Statement Mr P “represent[ed] a risk and danger to the safety and welfare of the residents”
[552]
Untrue/Misleading Allegation No 3 - “That’s covered in my statement”
[556]
Dishonest Non-Disclosure Allegation No 2 - Mr Haley not disclosing it was his voice on the audio recording
[560]
Dishonest Non-Disclosure Allegation No 3 – “No change to make”
[564]
Untrue/Misleading Allegation No 4 – Mr and Ms P had made “false and malicious allegations”
[566]
Statement No 9 – Subjected to a physical assault
[568]
Statement No 9 – Part 1: Subjected to a physical assault
[570]
Statement No 9 – Part 2: Seeking to avoid criminal charges
[577]
Conclusion
[581]
MR HALEY’S CLAIMS UNDER S 340(1) OF THE FW ACT
[582]
Provisions and principles
[584]
Adverse action
[586]
Dismisses the employee
[587]
Injures the employee
[589]
Alters position of employee
[590]
Workplace right
[591]
Complaint or inquiry
[592]
“Is able”
[594]
“In relation to”
[599]
Adverse action because of exercise of workplace right
[600]
Did Mr Haley make a complaint or inquiry before 3 July 2020?
[607]
Did Mr Haley make a complaint or inquiry after 3 July 2024?
[609]
Alleged Complaint/Inquiry No 8
[610]
Alleged Complaint/Inquiry No 9
[613]
Did LOA summarily dismiss Mr Haley from his employment because he had made a complaint or inquiry in relation to his employment?
[614]
OTHER CLAIMS
[618]
Adverse action other than dismissal
[619]
Claims based on contraventions of National Employment Standards
[631]
Excessive hours (s 62 of the FW Act)
[632]
Notice of Termination (s 117(1) of the FW Act)
[635]
Termination without notice (s 117(2) of the FW Act)
[642]
“Final Pay” claim
[645]
Long Service Leave Claim
[651]
The LSL Act
[652]
Mr Haley’s claims and LOA’s response
[659]
Determination
[664]
DISPOSITION
[674]
INTRODUCTION
1.
At 5:09 pm on Friday, 24 July 2020, Mr Simon Chatwin, then the Commercial Director of the respondent (LOA), sent to the applicant, Mr Haley, an email attaching a letter (Termination Letter) dated 24 July 2020 stating that “Laing O’Rourke has made the decision to terminate” Mr Haley’s employment with LOA “for serious misconduct, with immediate effect”.[1] The Termination Letter asserted Mr Haley had engaged in two classes of serious misconduct. The first is that Mr Haley lied to another employee of LOA, Mr Curnow-Rose, in the course of a purported investigation by Mr Curnow-Rose of a complaint Mr and Ms P, the owners of a property at Pambula (Pambula Property), made to LOA about an incident (Incident) that occurred in the late night and early morning of 2 and 3 July 2020 at the Pambula Property. The second class of serious misconduct the Termination Letter asserted Mr Haley engaged in is conduct during the Incident that constituted “[s]erious breaches of company policies, including the Code of Conduct”, which “caused imminent and serious risk to the reputation of” LOA.
2.
In this proceeding, Mr Haley, who is not legally represented, denies he lied to any person in the course of any investigation, or that he engaged in any conduct that justified LOA’s summarily dismissing him; and, in any event, Mr Haley says that LOA did not terminate his employment because LOA believed Mr Haley did any of these things. Mr Haley claims LOA terminated his employment because he had made complaints or inquiries in relation to his employment and, by so doing, exercised the workplace rights provided for by s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act). In these circumstances, Mr Haley claims that by terminating his employment LOA, in contravention of s 340(1) of the FW Act, took adverse action against him because Mr Haley exercised his workplace rights. Moreover, and in any event, Mr Haley claims LOA was not entitled to summarily dismiss him from his employment and, by doing so, LOA breached his contract of employment. Mr Haley also makes additional claims, which I will identify later.
QUESTIONS ARISING
3.
In these reasons for judgment, therefore, I consider two principal sets of questions. The first is whether LOA has discharged the onus of proving the matters on which, in its response (LOA Response) to Mr Haley’s amended Form 2 (Application), it relies as justifying its decision to summarily dismiss Mr Haley from his employment. The second is whether, as Mr Haley claims, he exercised any workplace rights and, if so, whether LOA, through Mr Chatwin, summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin in his first affidavit says he decided LOA should summarily dismiss Mr Haley from his employment. There are other questions that arise; but I will identify and consider these after I consider and determine the two principal sets of questions.
4.
I have framed the first set of questions in the terms I have because, as will appear later, LOA purported to advance a case based on substantial allegations, including allegations of dishonesty, it does not allege in the LOA Response, and on which its counsel did not open.
ARRANGEMENT OF REASONS
5.
These reasons are arranged as follows:
(a) First, I address a number of preliminary matters. In particular, I identify in general terms the evidence that is relevant to determining what occurred during the Incident and the conduct in which Mr Haley engaged during the Incident, and the rulings I made to objections Mr Haley made to the admissibility of much of that evidence; I will say something about the relevance of the substantial evidence that was adduced that relates to LOA’s purported investigation or investigations of the complaints Mr and Ms P made; I will address LOA’s submissions on the general credibility of Mr Haley and Mr Chatwin; I will set out the basic principles concerning the elements of fraudulent misrepresentations; and I will discuss some principles relating to the procedure that must be observed when a party to litigation alleges dishonesty, and the standard of proof in relation to such allegations.
(b) Second, I will set out in narrative form the evidence or the effect of the evidence. In the course of doing so I will make unqualified statements of fact which, unless the context suggests otherwise, are to be taken to reflect my findings of the facts stated. I will otherwise identify evidence that is relevant to an event of interest, and consider at that point, or later in my reasons, whether I should accept that evidence and consider what findings, if any, I should make in the light of such evidence I do accept.
(c) Third, I will consider Mr Haley’s claims that LOA was not justified in summarily dismissing him from his employment.
(d) Fourth, I will consider Mr Haley’s claims based on s 340(1) of the FW Act.
(e) Fifth, I will identify and consider the other claims Mr Haley makes.
PRELIMINARY MATTERS
Evidence of the Incident
6.
The central event out of which this proceeding arose is the Incident and, more particularly, Mr Haley’s conduct during the Incident. As will appear later, there were a number of employees of LOA who were present during the Incident. Mr Curnow-Rose, an employee of LOA who occupied the position of “Human Capital and Industrial Relations Lead”, interviewed a number of the employees (including Mr Haley), as well as Mr and Ms P, about their recollections of the Incident; Mr Curnow-Rose recorded what the employees and Mr and Ms P said (records of interview); and a report was prepared (which I later identify as the “Second Purported Investigation Report”) partly on the basis of which, LOA claims, Mr Chatwin decided that LOA should summarily dismiss Mr Haley from his employment.[2] LOA, however, has not called any of the employees, or Mr or Ms P, to give evidence about what occurred during the Incident and, in particular, about what Mr Haley said and did during the Incident; and the only witness LOA has called, Mr Chatwin, was not present at the Incident.
7.
In those circumstances, LOA relies on three classes of evidence to prove that Mr Haley lied in the course of Mr Curnow-Rose’s purported investigation of the complaints Mr and Ms P made, and to prove that Mr Haley otherwise engaged in conduct during the Incident that warranted his summary dismissal.
(a) The first is evidence of what LOA claims are admissions Mr Haley made at “the show cause meeting” he attended on 22 July 2020 (Show Cause Meeting or Show Cause Meeting of 22 July 2020).
(b) The second is part of the record of interview of Mr and Ms P of 6 July 2020 which has been incorporated, together with the other records of interview, as a schedule to the Second Purported Investigation Report on which LOA claims Mr Chatwin relied when deciding to summarily dismiss Mr Haley.
(c) The third item of evidence is an audio recording (which I later identify as “the audio recording”) Ms P made towards the end of the Incident. Particularly relevant is no more than 15 seconds of the audio recording which captures two sets of words which (it is common ground) Mr Haley uttered. The first set of words are “Go home you fucking silly old cunt”. As I find later, these words are spoken in the background at the same time as words are being spoken to Mr and Ms P by other persons in the foreground; and Mr Haley’s words can be picked up only if attention is directed away from the words the audio recording records being spoken to Mr and Ms P in the foreground. The second set of words are “go home old man, old lady. Go home, go home, go home, go home”. These words are also spoken in the background, but they are more distinct because, for the most part, they are not uttered at the same time as words are being uttered in the foreground.
8.
In its written submissions, LOA refers to the two sets of words the audio recording picked up Mr Haley uttering as “the Offensive Words”; and it represents these words as constituting one utterance which Mr Haley addressed or directed to Mr and Ms P. LOA submits that Mr and Ms P heard Mr Haley utter “the Offensive Words”. It is a prominent feature of this case, however, that there is no evidence that Mr or Ms P ever claimed or alleged that Mr Haley said, or said to them, “Go home you fucking silly old cunt”, or words to that effect; and although in the record of interview of 6 July 2020 (to which I will refer later) Ms P says that Mr Haley “started chanting, go home old man, old lady”, Ms P also alleged that Mr Haley “had to [be] restrained, said he was going to f-up the old man and lady. I don’t know who was restraining him”.[3] The audio recording, however, does not support that allegation; and LOA does not submit that Mr Haley “had to [be] restrained, said he was going to f-up the old man and lady”; nor was this claim or allegation the subject of what I later identify as the “First Purported Investigation Report”, or of the Second Purported Investigation Report. Further, in neither of the First Purported Investigation Report or the Second Purported Investigation Report is it recorded that Mr and Ms P alleged or claimed that Mr Haley said “the Offensive Words”, and LOA has not called Mr and Ms P to give evidence in this proceeding to say that they heard Mr Haley say “the Offensive Words”. Notwithstanding these matters, LOA submits that I should infer that Mr and Ms P in fact heard “the Offensive Words”. I address that submission later in these reasons; but it should be appreciated at the outset that much of LOA’s case, as alleged in the LOA Response, and as purportedly advanced in final submissions, that Mr Haley lied or otherwise engaged in misconduct warranting summary dismissal, relies on my drawing an inference about a matter that Mr and Ms P could have given direct evidence, if called and if true, that Mr Haley said to them, and they heard him say, “the Offensive Words”. LOA has given no evidence that it attempted to obtain evidence from Mr and Ms P, and LOA has otherwise not identified any reason why it did not call Mr and Ms P to give evidence.
9.
At the hearing Mr Haley objected to my admitting into evidence the Second Purported Investigation Report, and the records of interview that formed schedules to that report, on the ground of hearsay.[4] Counsel for LOA submitted that LOA was relying on these documents for a non-hearsay purpose, namely, as evidence of material on which LOA submits Mr Chatwin relied when deciding to terminate Mr Haley’s employment.[5] I formed the view that this material was relevant for that (non-hearsay) purpose. In relation to another item of (hearsay) evidence, LOA submitted s 69(2)(b) of the Evidence Act 1995 (Cth) (Evidence Act) applied. After hearing further submissions, I decided I would deal with the evidence on which LOA relies, including the Second Purported Investigation Report, and the records of interview, on the basis that I would apply the rules of evidence to determine whether I would in fact rely on the evidence.[6] This is consistent with the basis on which I admitted into evidence Mr Haley’s affidavits:[7]
Now, Mr Haley . . . can I say what my approach will be to evidence. Even though – and this saves time, and on one view, this is how the Evidence Act should apply – I will only act . . . in relation to evidence that’s relevant to a contested issue, [and] I will apply the rules of evidence to it. So it’s not a question of something being slipped in that I’m going to, or parties can take advantage of it. I will certainly apply the rules of evidence, and there’s only really two basic rules, and that’s the rule against hearsay and the many exceptions to it, and the other is opinions.
10.
I have concluded that the representations contained in the records of interview, being relevant for a non-hearsay purpose, are admissible as hearsay pursuant to s 60(1) of the Evidence Act. That is to say, representations contained in the records of interview about the events that constituted the Incident are admissible as evidence of the fact intended to be asserted by the representations. LOA has not submitted that any of the representations contained in the records of interview are false, or should otherwise be given no credit.
11.
Mr Haley also objected to my admitting into evidence the audio recording on the ground that it was made contrary to the Surveillance Devices Act 2007 (NSW). I overruled that objection and admitted into evidence the audio recording.[8]
Relevance of evidence of investigation(s)
12.
Mr Haley makes a number of allegations and submissions about the adequacy, fairness, and lack of good faith of LOA’s purported investigation or investigations of the allegations Mr and Ms P made about his conduct. In the Application Mr Haley alleges, among other things, that the purported investigator, Mr Curnow-Rose, was neither independent nor impartial;[9] that his investigation was neither comprehensive nor complete;[10] Mr Haley was denied procedural fairness;[11] and the outcome of the investigation “had been determined prior to” the Show Cause Meeting of 22 July 2020.[12] In his opening address, by which time Mr Haley, by notices to produce, had gained access to LOA’s internal documents, Mr Haley claimed that LOA had conducted two investigations, one of which he was aware, and the other of which he was not aware;[13] the interviews that were conducted in connection with the investigation were targeted against Mr Haley personally;[14] and there was no evidence to substantiate the claim the investigator purportedly concluded had been “substantiated”.[15] In his closing written submissions, Mr Haley submitted that the purported investigation process was “procedurally unfair, non-compliant with [LOA’s] policies and evidently conducted in bad faith”;[16] and the purported investigation in relation to which the purported investigator found Mr Haley lied was not the subject of the original complaint Mr and Ms P made.[17]
13.
LOA, on the other hand, submits as follows:
(a) Mr Haley’s contention that he was denied procedural fairness is misconceived and without substance; and that is because at common law an employer is not required to afford procedural fairness before dismissing an employee; and there was nothing in Mr Haley’s employment contract that required LOA to afford him procedural fairness.[18]
(b) LOA’s guidelines relating to the investigations of complaints were not terms of Mr Haley’s employment contract; and, in any event, those guidelines provided that LOA would apply them “generally”, and could depart from them in circumstances LOA deemed it appropriate.[19]
(c) Mr Haley’s contention that the investigation was not the subject of the original complaint Mr and Ms P made “is misconceived” because Mr Haley has not brought a claim of unfair dismissal; LOA was not obliged to conduct the investigation strictly within the bounds of the “original complaint”; and that, in any event, the description of the complaint, as it was communicated to Mr Haley, was broad enough to encompass the misconduct for which LOA eventually terminated his employment.[20]
14.
It is the case that, subject to any express contrary term in the contract of employment, an employer is not obliged to afford an employee procedural fairness before the employer decides to summarily dismiss the employee; and it is also the case that an employer may investigate and make enquiries that relate to any matter within the scope of an employee’s employment. But that does not mean that evidence concerning the investigation or investigations LOA purportedly carried out of the complaints Mr and Ms P made, and the nature and quality of such investigation or investigations, are not relevant to Mr Haley’s claims. Such evidence is relevant in a number of ways.
15.
First, LOA contends that Mr Chatwin was the person who made the decision, on behalf of LOA, to summarily dismiss Mr Haley from his employment. Mr Chatwin, in his first affidavit, says that he was provided with what I have described as the Second Purported Investigation Report; and he formed a view, “as reflected in the findings” contained in that report,[21] on the basis of which, together with other reasons, Mr Chatwin says he decided that LOA should summarily dismiss Mr Haley from his employment. Evidence of the investigation or investigations that led to the investigator to make the findings on which Mr Chatwin says he relied is relevant to identifying the persons who were involved, and the roles they played in the investigation. That, in turn, is relevant to assessing whether it should be accepted, as LOA contends it should be accepted, that Mr Chatwin, and Mr Chatwin alone, made the decision that LOA should summarily dismiss Mr Haley from his employment, or whether another person or persons made that decision or joined with Mr Chatwin in making the decision; or, even if Mr Chatwin alone made that decision, or joined others in making that decision, whether his mind is the only mind relevant to assessing whether LOA summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin states in his first affidavit.[22]
16.
Second, LOA seeks to contend (I say “seeks”, because LOA has not pleaded such a case, something to which I will return when I consider LOA’s contention) that Mr Haley manifested a “lack of candour in the investigation”, and he did so by “making certain non-disclosures”, and by failing to admit certain things.[23] LOA does not in its written submissions refer to the legal basis on which it submits Mr Haley had a duty of candour in the course of the investigation; but it may be taken that LOA has in mind the duty Herron J identified in Associated Dominion Assurance Society Pty Ltd v Andrew: [24]
[A] duty lies on an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure. . . .
Question asked relating to the employee’s activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer’s legitimacy. It certainly could destroy all confidence between master and servant which is an essential feature of all such contract.
17.
The employee’s obligations to answer his or her employer’s questions, and otherwise disclose information to his or her employer, however, are not unqualified. Habersberger J made that point in Carter v The Dennis Family Corporation. [25] After quoting from Herron J’s judgment in Associated Dominion Assurance Society Pty Ltd v Andrew, Habersberger J said: [26]
The process of questioning must be fair and reasonable. Moreover, as Judd J said in Howard v Pilkington (Australia) Ltd the questioning must be:
a genuine investigation ... to properly inform the employer of the true character or extent of the employee’s conduct.
His Honour held that in the case before him:
the investigation was a managed process, designed to accumulate material to justify Mr Howard’s early termination. Mr Kruger’s written interrogation of Mr Howard was demonstrated to be a charade, designed to justify his dismissal for failure to co-operate. This is no doubt why Pilkington did not rely upon Mr Howard’s responses as a justification.
Counsel for the defendant correctly pointed out that the right to terminate an employee at common law is not subject to a right on the part of the employee to be heard in his own defence. However, the point made by the plaintiff is different. It is that DFC should not be entitled to submit that Mr Carter’s answers to the 28 questions constituted serious misconduct or a repudiation of the employment contract when the questions were not a genuine search for information and were not put in a fair and reasonable manner in that sufficient time was, quite unnecessarily, not allowed for the answering of the questions.
18.
Evidence relating to the nature and quality of the purported investigation that led to a person or persons who purported to make the findings on which Mr Chatwin says he relied, therefore, is relevant to determining whether it was a genuine investigation; and, therefore, is relevant to determining whether questions asked of Mr Haley in the course of the purported investigation imposed an obligation on him to disclose information to LOA. As will appear later, I conclude that I cannot be satisfied that, at least after 6 July 2020, what LOA has described as an investigation into the allegations Mr and Ms P in fact made was a genuine investigation, that is, that it was a process by which LOA sought or intended to properly inform itself of the allegations Mr and Ms P made against Mr Haley. My non-satisfaction is based on LOA’s documents Mr Haley tendered into evidence, which LOA did not attempt to explain by calling as witnesses their apparent authors. The documents show the following:
(a) By 5:03 pm on 8 July 2020, Mr Curnow-Rose completed a document titled “Investigation Report Into Complaint Made by [Mr and Ms P]” (First Purported Investigation Report),[27] in which he found that the allegations Mr and Ms P had made in relation to Mr Haley were “substantiated”. The allegations that were the subject of the First Purported Investigation Report, however, did not include an allegation by Mr and Ms P that Mr Haley said “the Offensive Words”; and in any event is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning.
(b) Mr Curnow-Rose did not disclose, and no other employee or officer of LOA disclosed, to Mr Haley that Mr Curnow-Rose had completed his investigation into the allegations Mr and Ms P made against Mr Haley, or that Mr Curnow-Rose had found that those allegations had been “substantiated”.
(c) Instead, on or shortly after 9 July 2020 an officer or officers of LOA, whose identity I will refer to later, embarked on a process that led to the drafting and finalisation of the Second Purported Investigation Report. The Second Purported Investigation Report found that “the allegation” Mr and Ms P made against Mr Haley was “substantiated”. However:
(i) The “allegation” the Second Purported Investigation Report purportedly found was “substantiated” was not an allegation the First Purported Investigation Report found had been “substantiated”, and which that report identified; the allegation the Second Purported Investigation Report purportedly found was “substantiated” was an allegation that Mr Haley said “the Offensive Words” to Mr and Ms P. As I have already noted, however, there is no evidence that Mr and Ms P alleged Mr Haley said “the Offensive Words”, and neither the First Purported Investigation Report nor the Second Purported Investigation Report records that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”.
(ii) Further, and in any event, the purported finding that the “allegation”, namely, that Mr Haley said “the Offensive Words” “to” Mr and Ms P, was “substantiated” is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning.
19.
Third, if, as Mr Haley submits, the purported investigation was actuated by bad faith, and in particular, was a process that was directed to justifying an outcome that LOA had already determined, namely, to dismiss Mr Haley from his employment, this state of affairs would have a tendency to undermine LOA’s case that it summarily dismissed Mr Haley from his employment for the reasons stated in the Termination Letter, or for the reasons Mr Chatwin gives in his first affidavit, and that Mr Chatwin alone made the decision that LOA should summarily dismiss Mr Haley from his employment.
20.
Fourth, evidence relevant to the nature and quality of the purported investigation that led to the investigator making the findings on which Mr Chatwin says he relied may be relevant to assessing the weight of evidence of what LOA alleges were admissions Mr Haley made. If the evidence supports Mr Haley having made the admissions LOA contends he made, the weight, if any, that is to be given to the admissions might need to be assessed by reference to the circumstances in which the admissions were made. Of potential relevance is the fact that LOA did not disclose to Mr Haley that by 5:03 pm on 8 July 2020 Mr Curnow-Rose had made a finding that “substantiated” the complaints Mr and Ms P made; and LOA did not disclose to Mr Haley that Mr and Ms P did not make the allegation which the Second Purported Investigation Report purported to find had been “substantiated”, namely, that Mr Haley said “the Offensive Words”. LOA’s failure to disclose these matters to Mr Haley may suggest that, to the extent I find he made the admissions LOA alleges he made, Mr Haley may have made the admissions on the basis of incorrect assumptions that may have been induced by LOA’s non-disclosures.
Credibility of Mr Haley and Mr Chatwin
21.
In its counsel’s written submissions, LOA submits Mr Haley “was generally an unsatisfactory witness”, and, for that reason, Mr Haley’s evidence on any matters which are in dispute should not be accepted unless it is corroborated by contemporaneous records.[28] On the other hand, LOA submits that Mr Chatwin was “an honest and forthright witness”.[29] Mr Haley, for his part, submits that Mr Chatwin is not a credible witness.
22.
There are a number of observations that may be made about these submissions: First, as will appear later, the account Mr Haley gave of the Incident to Mr Curnow-Rose on 8 July 2020, and later, on 22 July 2020, to Mr Chatwin at the Show Cause Meeting, was corroborated or otherwise supported by the accounts of the Incident other employees gave to Mr Curnow-Rose, being accounts that LOA does not submit deserve no credit. Moreover, the account Mr Haley gave was entirely inconsistent with the allegations Mr and Ms P in fact made against Mr Haley; so inconsistent, in fact, that the allegations Mr and Ms P actually made against Mr Haley were not considered in the Second Purported Investigation Report and, for that reason, were not the subject of a finding that they had been substantiated, which implies the allegations had not been substantiated. As I have already noted, and as will appear later, the subject of the Second Purported Investigation Report was not an allegation that Mr and Ms P, or any other person, made against Mr Haley. Further, and as will also appear later, Mr Haley made statements during the Show Cause Meeting of 22 July 2020 that were consistent with the account he gave to Mr Curnow-Rose, the truth of which LOA has not challenged, and does not submit is to be given no credit.
23.
Second, Mr Haley’s evidence about the Incident, and about the conversations and communications he says he had with employees of LOA which he claims constituted his making complaints or inquiries in relation to employment, are to be weighed against LOA’s not calling as witnesses persons whom it may reasonably be supposed was in its power to call to give evidence that contradicts or otherwise explains away the evidence Mr Haley gave during the purported investigation, at the Show Cause Meeting on 22 July 2020, and at the hearing.
24.
Third, if the position is reached that Mr Haley made one or more complaint or inquiry in relation to his employment and, for that reason, he had exercised his workplace rights within the meaning of s 341(1)(c)(ii) of the FW Act, any adverse credibility finding against Mr Haley will be irrelevant to determining whether LOA summarily dismissed Mr Haley’s employment for the reasons it claims it did. Whether LOA will be able to prove it summarily dismissed Mr Haley from his employment largely, but not exclusively, turns on whether Mr Chatwin was the only person who made the decision on behalf of LOA to summarily dismiss Mr Haley and, if so, whether his evidence should be accepted.
25.
Fourth, it is unnecessary to make any finding about whether Mr Chatwin was an honest witness. I do not, however, accept LOA’s submission that Mr Chatwin was a “forthright witness”. As I show later, Mr Chatwin in the two affidavits he made went no further than asserting that he, and he alone, made the decision that LOA summarily dismiss Mr Haley from his employment. In evidence given under cross-examination, however, Mr Chatwin said that he and LOA’s managing director, Mr Cathal O’Rourke, had discussions in relation to the termination of Mr Haley’s employment. Moreover, Mr Chatwin gave evidence that the “decision” Mr Chatwin made that Mr Haley be summarily dismissed was subject to Mr Chatwin’s discussing his “decision” with Mr Cathal O’Rourke who had “the right to potentially overturn my decision”;[30] and that Mr Cathal O’Rourke, “as the ultimate managing director of the business, of course, has the right of objection or the right to request more information” and, for that reason, Mr Chatwin “had to keep him [that is, Mr Cathal O’Rourke] informed” and, to that extent, Mr Cathal O’Rourke “was involved” in the decision to summarily dismiss Mr Haley from his employment.[31] These are not matters Mr Chatwin volunteered in his affidavits, something a “forthright witness” would have done.
26.
My not accepting LOA’s submission that Mr Chatwin was a “forthright witness” is a reflection of the manner in which LOA elected to conduct its case. LOA has not called any witness that casts any doubt of the account of the Incident Mr Haley gave in the course of the purported investigation or at the Show Cause Meeting of 22 July 2020; and LOA has not called Mr and Ms P to give evidence that they heard Mr Haley say to them or at all “the Offensive Words”. LOA relies on a few statements Mr Haley made in the Show Cause Meeting, which LOA submits constitute admissions that, LOA further submits, are inconsistent with his account of what Mr Haley claimed had occurred during the Incident and, moreover, are a basis on which I should find that Mr Haley had lied to Mr Curnow-Rose. Further, LOA has not called as witnesses the author or authors of documents LOA produced in answer to the notices to produce Mr Haley had issued, and which he tendered. LOA has elected to conduct its case in this way, even though, in reasons for judgment I published on 6 September 2022, I noted the following:[32]
If, however, as Mr Haley appears to intend to submit at the hearing commencing on 19 September 2022, LOA’s documents suggest there were employees of LOA, other than Mr Chatwin, who were responsible for, or who joined in LOA’s decision to terminate Mr Haley’s employment, it may be open to Mr Haley to tender at the hearing the documents that he will submit show or suggest this; and to submit that LOA’s not calling the person or persons which the documents suggest may have made or joined in the making of LOA’s decision to terminate Mr Haley’s employment, is a basis for drawing with greater confidence inferences that are available to be drawn on the basis of the documents that other employees of LOA made or joined in the making of LOA’s decision to terminate Mr Haley’s employment.
27.
Finally, just in case this may be lost in the mass of evidentiary material with which these reasons deal, it is necessary to note here that I find later in these reasons that the effect of the evidence Mr Chatwin gave under cross-examination is that LOA’s decision to summarily dismiss Mr Haley from his employment was not Mr Chatwin’s to make; the power to make that decision rested in the hands of LOA’s managing director, Mr Cathal O’Rourke. And LOA has not only not called Mr Cathal O’Rourke to give evidence; Mr Chatwin has not given any evidence that he had in fact met Mr Cathal O’Rourke after Mr Chatwin (as he says) made the decision that LOA should summarily dismiss Mr Haley from his employment.
Some principles relating to fraudulent misrepresentations
28.
In the LOA Response LOA alleges Mr Haley made 13 statements, each of which, it alleges, was false at the time he made them, and each of which, it further alleges, Mr Haley knew to be false at the time he made it. In short, LOA alleges that Mr Haley made 13 fraudulent misrepresentations.
29.
There is a well-established, and substantial, body of principles that identify the type of representations that are capable of being made fraudulently, and the circumstances in which a person making them will be held to have made them fraudulently; and these principles have largely been stated in the context of actions in deceit. Under those principles, a false representation of fact will be held to have been made fraudulently if it has “been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”.[33] A representation as to a persons’ state of mind is capable of being a representation of fact, and will be held to be fraudulently made in the same manner as any other representation of fact may be held to have been fraudulently made.[34]
30.
A representation of an opinion is also capable of conveying one or more representations of fact. This has been noted in many cases. Thus, in Smith v Land and House Property Corporation, Bowen LJ said:[35]
It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense, a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally, known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.
31.
And in Campbell v Backoffice Investments Pty Ltd, French CJ said:[36]
Opinions may carry with them one or more implied representations according to the circumstances of the case. There will ordinarily be an implied representation that the person offering the opinion actually holds it. Other implied representations may be that the opinion is based upon reasonable grounds, which may include the representation that it was formed on the basis of reasonable inquiries. In the case of a person professing expertise or particular skill or experience the opinion may carry the implied representation that it is based upon his or her expertise, skill or experience.
32.
In these circumstances, a statement of opinion will be held to have been fraudulently made if the person expressing the opinion did not hold the opinion, or if the person was aware of facts that could not justify the opinion, or if the person was unaware of facts that could justify the opinion.
33.
There are also cases where a person may fail to state something yet nevertheless be held to have made a fraudulent misrepresentation. These cases were described by George Spencer Bower:[37]
[T]here are cases where a man may positively lie by saying nothing, and where the circumstances are such that reticence or concealment may amount to active misrepresentation. One (and the more obvious) of the two main types of such reticence is the omission from a statement of all reference to qualifying fact, leaving what is stated to stand as an absolute, and therefore a false, representation. The other is to be found in those who “do a wilful stillness entertain”, when their previous declarations or acts bid them speak, in order to remove a delusion for the creation of which they are themselves responsible.
34.
Finally, it may be useful to bear in the mind the following principles the plurality of the High Court stated in Krakowski v Eurolynx Properties Ltd:[38]
In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood. In Akerhielm v. De Mare the Privy Council said:
The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made. This general proposition is no doubt subject to limitations. For instance, the meaning placed by the defendant on the representation made may be so far removed from the sense in which it would be understood by any reasonable person as to make it impossible to hold that the defendant honestly understood the representation to bear the meaning claimed by him and honestly believed it in that sense to be true. . . . .
Alleging and proving fraud
35.
It is an important and long-established principle that, in all cases based on fraud, “particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires”;[39] and “if a case of fraud is to be mounted, it should be pleaded specifically and with particularity”.[40] The “mere labelling of an allegation as fraud amounts to little”,[41] because “[n]obody can be expected to meet a case . . . upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest”.[42]
36.
The requirement of clearly stating and proving allegations of fraud applies whether or not the allegation is made in a pleading. That point was made by Lord Buckmaster in Jonesco v Beard, where his Lordship said that where a judgment is sought to be set aside on the ground of fraud other than in an action “the necessity for stating the particulars of fraud and the burden of proof are no whit abated and all the strict rules of evidence apply”.[43]
37.
It would also be useful to refer to the following passage from the speech of Lord Millett in Three Rivers District Council v Bank of England (No 3) (emphasis added):[44]
[A]n allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
38.
Allegations of fraud are to be assessed having regard to s 140 of the Evidence Act. Subsection 140(1) provides that a court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities; but this must be read with s 140(2) which provides that in deciding whether it is satisfied a party has proved his or her case, the court may take into account the nature of the cause of action, the nature of the subject matter, and the gravity of the matters alleged. I propose to apply s 140 of the Evidence Act having regard to the well-known principles expressed by Dixon J in Briginshaw v Briginshaw (emphasis added):[45]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third statement of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
EVIDENCE AND SOME FINDINGS
Mr Haley’s employment and professional background
39.
Mr Haley is a citizen of the United Kingdom (UK). He commenced employment in England in 2003 with a company that was a member of the group of companies (LOA group of companies) of which LOA is a member;[46] and until 24 July 2020, when LOA purported to summarily dismiss him from his employment, Mr Haley had been continuously employed by one or other member of the LOA group of companies.
40.
During his employment with one or other member of the LOA group of companies. Mr Haley studied for, and completed, a number of courses and qualified for a number of degrees and awards. These consisted of the following:[47]
Degree/Award
Institution
Year conferred
Bachelor of Science in Quantity Surveying
Leeds Beckett University
2009
Member
Chartered Institute of Arbitrators
2012
Master of Science in Construction Law & Dispute Resolution
Leeds Beckett University
2013
Chartered Surveyor, and Fellow
Royal Institution of Chartered Surveyors
2009, and 2016
Master of Studies in Construction Engineering
University of Cambridge
2020
February 2018 – Mr Chatwin approaches Mr Haley to work for LOA
41.
On about 5 February 2018 Mr Chatwin telephoned Mr Haley and inquired whether Mr Haley would be interested in a role in Australia. After Mr Chatwin had made a verbal offer during a video conference in late February or early March 2018, Mr Haley sent an email to Mr Chatwin stating that the move to Australia “would require us to remove the girls from an environment where they are extremely happy and take them in to a new environment where we will need to re-create, or improve, what we currently have”; Mr Haley’s wife “would also need to sacrifice her career to allow me to pursue mine”; and that “[w]e live a good life here in the UK which we enjoy and we would not be too disheartened to maintain the status quo”. After further negotiations Mr Chatwin and Mr Haley agreed to the salary Mr Haley would be paid if he were to accept a position in Australia.[48]
42.
On or before 19 June 2018 Mr David Sheehy,[49] an employee of LOA or of another member of the LOA group of companies, sent the following message to Mr Cathal O’Rourke requesting approval to offer Mr Haley employment with LOA:[50]
Hi Cathal,
Please req. to appoint Tom Haley – internal transfer from the UK
Tom has a Grade 7a commercial leader who we would be bringing over for a number of potential roles (depending on which one falls into place first):
• Commercial Leader to replace Cameron Richmond’s visiting role if we win RIA and Cameron goes onto that project.
• Commercial Leader for Western Sydney Airport
• Commercial Leader for Lina Wide
• Commercial Leader for Victoria Cross
• Commercial Leader for SCC
Tom is a long serving LOR Commercial Leader, ex Young Guns and is a well-established commercial leader in the UK (currently commercial leader the manufacturing division in the UK). Tom would be a highly likely succession option for Simon in the long run.
John O’Connor is really pleased with the move also to reinforce the team here.
Simon has agreed a salary at $390k + Super (high end, above Al Smith).
43.
The document by which this request was made includes a section headed “Approvers”; and it records that on 14 June 2018 Mr Chatwin approved the request to appoint Mr Haley, and Mr O’Rourke and “Shared Services” approved that request on 19 June 2018.
44.
At the time Mr Chatwin approached Mr Haley, Mr Chatwin knew, as was the case, that Mr Haley had a young family; and Mr Chatwin accepted in cross-examination that Mr Haley had made Mr Chatwin aware of the sacrifice Mr Haley was making to support Mr Chatwin “in the Australia hub”.[51]
45.
There is in evidence a of copy of a letter dated 20 June 2018 addressed to Mr Haley from Ms Freckelton, LOA’s “Human Capital Advisor”, in which she confirmed “our offer of employment to you as a Commercial Leader”, and to which she attached “our Contract of Employment for your consideration”[52] There is also in evidence an email from “General HC Queries Australia – HC Shared Services” to Mr Haley sent on 20 June 2018 with the subject “LOR – Letter of Offer”.[53] The email was as follows:
Dear Tom,
Laing O’Rourke is delighted to offer you the position of Commercial Leader located at the Company’s North Sydney Office.
Please review the attached Letter of Offer outlining your employment conditions and advise if you have any questions in relation to this contract.
If you are satisfied with the details of this offer of employment please sign where indicated and return with a copy of your Passport and the Passport of those dependents being processed until your 482 visa application.
Once received, we will put you in contact with Allison McMillin who is our internal Immigration Agent who will assist you with processing your 482 visa application/transfer.
We will then make contact with yourself once your visa application has been approved to discuss a start date & commence relocation arrangements.
Congratulations, we look forward to welcoming you as part of the Laing O’Rourke Team!
46.
It is open to find that the “Letter of Offer” to which this email refers is a reference to Ms Freckelton’s letter dated 20 June 2018; and that, by this email, Mr Haley received a draft contract of employment.
47.
On 21 June 2018 Mr Haley sent an email to Mr Chatwin in which he identified a number of matters he said required clarification.[54] Mr Chatwin responded by email sent on 28 June 2018 in which he added a response to each of the issues Mr Haley raised in the email he sent to Mr Chatwin on 21 June 2018. Relevant to one of the issues I am required to decide is item 5 of section 5 of the draft employment contract, which dealt with removal costs to Australia. Mr Haley, in his email, asked whether the costs of returning would be covered. Mr Chatwin responded as follows:
Return home isn’t included as part of the Contract of Employment as a return home sits outside of this. However, if you return back to LOR UK at our instruction then, if it is agreed and approved, we would pay. This all sits outside of the Contract of Employment.
25 July 2018 – Mr Haley signs contract of employment
48.
It appears that on 28 June 2018 Ms Freckelton sent to Mr Haley a letter which is almost identical to the letter dated 20 June 2018 to which she attached a contract of employment.[55] I find that on 25 July 2018 Mr Haley signed the contract of employment that was attached to Mr Freckleton’s letter dated 28 June 2020 (Employment Contract).[56] Under the contract Mr Haley was to be employed on a full-time basis in the position of “Commercial Leader within the Clients & Markets Team”.
49.
The Employment Contract contained terms that included the following:
(a) Mr Haley’s employment would commence on a date as mutually agreed, and would continue until terminated “in accordance with this contract”.
(b) Mr Haley would report to “the Commercial Director, Simon Chatwin”.
(c) Mr Haley would be initially located at LOA’s North Sydney office working as part of the Commercial team, but he may be required to work at other locations as LOA may require.
(d) Mr Haley would be required to work an average of 38 hours per week at times advised to him, and any reasonable overtime to meet the requirements of his role.
(e) Mr Haley was required to familiarise himself with LOA’s “Global Code of Conduct, as well as detailed policies, procedures, and other business rules . . . which are available through the intranet”, although these policies did not form part of the Employment Contract.
(f) Mr Haley’s employment was conditional on Mr Haley’s being legally entitled to work in Australia. In that regard, the Contract of Employment noted that Mr Haley intended that he would join LOA on a Long-Stay Temporary Business visa valid for four years, and that Mr Haley’s application for such visa would be “facilitated by [LOA’s] Migration and Relocation Officer”.
50.
The Employment Contract also provided for the circumstances in which LOA could summarily terminate Mr Haley’s employment:[57]
Summary Termination
If you are guilty of misconduct or commit a serious or persistent breach of a term or condition of this document, the Company may terminate your employment immediately without notice. Without limiting the generality [of] this clause, your employment may be terminated immediately without notice if you:
(a) engage in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment;
(b) engage in conduct that causes imminent and serious risk to a person's health and safety, or the reputation, viability, or profitability of the Company;
(c) inappropriately use, copy or disclose of any personal information (including sensitive information) or Confidential Information other than for the purpose of performing your duties;
(d) neglect the discharge of your duties;
(e) become bankrupt or enter into any arrangement or composition with your creditors which in the opinion of the Company affects the discharge of your duties;
(f) are convicted of any criminal offence other than an offence that in the opinion of the Company does not affect the discharge of your duties;
(g) commit any act that involves secret or undisclosed commissions: or
(h) are precluded by any provision of the Corporations Act from holding your position.
If you are terminated for misconduct, no payment will be made to you other than accrued entitlements up until the date of termination.
“Position Description” of Commercial Leader
51.
There is in evidence a LOA document that is titled “Position Description” (Position Description) which relates to the position of “Commercial Leader”.[58] It provides that the person occupying the position of “Commercial Leader” reports to a “General Manager/Project Leader” and has a “[f]unctional supervisory responsibility for commercial staff, and other designated functional reports within a Region of the Hub”.
52.
In evidence given under cross-examination, Mr Haley said he first saw the Position Description as an annexure to Mr Chatwin’s affidavit; and that he never had any direct reports from the commercial team. Mr Haley said that persons from within the commercial team always reported through other people.[59] It was put to Mr Haley that this evidence was inconsistent with that part of his affidavit Mr Haley made on 13 July 2021 which responds to paragraph 23 of the affidavit Mr Chatwin made on 28 June 2021. In paragraph 23 of his affidavit, Mr Chatwin described the reporting structure in relation to the “Bushfire Project” (to which I will refer later). In Mr Haley’s affidavit he said that the “reporting line of the commercial team was direct to me”; and that this “was necessary due to the audit risk on the project and the necessary separation of those operationally overseeing the work and those who were processing and signing off payment”.[60] Mr Haley gave the following “clarification” about reporting lines on the “Bushfire Project”:[61]
I am a functional leader. I’m not a leader of day to day activities. So each individual, as I did, have two reporting lines. I had a reporting line to Simon Chatwin, and I had a reporting line to Paul Barrie. I reported to Simon Chatwin on functional matters and governance matters, and Paul Barrie on day to day matters. The people in my team were exactly the same. Paul Barrie supervised me, not Simon Chatwin, and the relationship was the same. So I understand where there might be some differences in the wording and – but hopefully my clarification there helps. I didn’t report direct to Simon Chatwin. I reported to Paul Barrie, and my commercial team had the exact same relationship, and that’s all that we’re clarifying.
53.
I find that Mr Haley’s statement in paragraph 23 of his affidavit that the “reporting line of the commercial team was direct to [Mr Haley]” is incorrect. The only potential relevance of this finding, however, is to the general credibility of Mr Haley.
54.
Mr Haley was also taken to the following sections of the Position Description:
• Plus: Acts at all times in accordance with Laing O’Rourke guiding principles and values; which means; working collaboratively as One Team across businesses; teams and functions; behaving with integrity in all dealings with others; and owns the safety and corporate responsibility agendas putting them at the heart of everything we do.[62]
. . . .
• Take a lead role building and maintaining a flexible commercially proactive, well informed, qualified and professional commercial team, portraying appropriate behaviours, deployed in a timely manner, and delivering to the required company performance standards.[63]
• Provide guidance to project teams in the handling of Main Contract and sub-contract contractual matters, disputes, notifications, correspondence and contractual claims. Support the project teams in the development, compilation, submission and agreement of such, including strategies and management plans to mitigate identified risks and maximise identified opportunities.[64]
55.
Mr Haley was asked whether he agreed that these quoted passages reflected the requirements of his role as a “Commercial Leader”. Mr Haley said that he agreed with the “general principle” expressed by the passages.[65]
56.
Mr Haley was also taken to that part of the Position Description which stated: “Promote and display Excellence + behaviours”.[66] That is a reference to the “Excellence Plus Behaviours” set out on the first page of the Position Description. These consisted of the following:
• Executes: Drives lean execution; is structured and systematic; puts in place monitoring mechanisms and metrics.
• Client Focus: Builds enduring relationships with clients and stakeholders; puts self in the client’s shoes and understands their strategic drivers; reaches out and networks across the industry.
• Enthuses Others: Communicates a compelling vision of the future in a way which inspires and enthuses; helps people along the Laing O’Rourke journey; sets and upholds high standards; provides absolute clarity of outcomes but empowers and trusts people to deliver.
• Looks Ahead: Thinks strategically, looking ahead to the long-term; thinks broadly, anticipating a range of factors, scanning the external environment; comfortable managing complexity and envisaging possibilities.
• Learning and Innovation: Actively promotes organisational learning, continuous improvement and innovation to drive revenue and build margin.
• Energy: Has exceptional energy and drive to grow themselves and Laing O’Rourke; radiates passion and a determination to succeed.
• Nurtures Talent: Attracts, builds and develops talented teams with breadth and depth.
• Courage: Has confidence and courage to make the bold move; is decisive; seizes accountability for decision making.
• Emotions: Is resilient, tenacious and persistent; keeps on going despite setbacks; maintains a positive outlook; is open with feelings but not emotional.
57.
Mr Haley was cross-examined about this part of the Position Description as follows:[67]
MR JEDRZEJCZYK: Yes. So you understand what I’m referring to by “excellence plus,” Mr Haley, in terms of what that reference means and ‑ ‑ ‑?‑‑‑I understand the – I’ve read the words and I know that I’m familiar with that term.
Yes, yes. And again, the question is, without suggesting that this is somehow a matter of contractual force, as a matter of your own understanding of your role as commercial leader and your responsibilities, do you agree that those responsibilities included promoting and displaying behaviours that were, let’s say, consistent with a high level of professionalism and ethical business practices. Do you agree with that?‑‑‑No.
You don’t agree with that?‑‑‑I read the words as they are:
Promote and display excellence plus behaviours
And when you say, “excellence plus behaviours,” your understanding, Mr Haley, is that that’s a reference to the matters which are set out on page 398?‑‑‑I’ve seen the reference to “excellence plus behaviours” at the front. “Excellence plus” was a term that was used regularly in corporate communications, so I was familiar with the term.
Yes. And I’m just ask [sic] you that, when you said you see the words and you agree that you were required to “display excellence plus behaviours,” I just want to make sure that we all understand what you meant by that. And I’m suggesting to you that your understanding of “excellence plus behaviours” is derived from what’s set out on page 398. Is that correct?‑‑‑Well, if I can clarify. I think you’re putting words in my mouth. I didn’t agree that I was required to perform in accordance with those behaviours. I’ve said it’s in this document, in this position description, which isn’t in my contract. It says:
Promote and display excellence plus behaviours –
and I’m aware what “excellence plus” or the term is from corporate comms.
All right. And do you agree, Mr Haley, if I put it this way. That your understanding of your role as commercial leader and your responsibilities entailed in that role included promoting and displaying high standards of professional conduct and ethical behaviour. Do you agree with that?‑‑‑No.
You don’t agree with that?‑‑‑No.
So your evidence is that, in discharging your duties as commercial leader, your understanding was that there was no part of that job that involved displaying high standards of professional conduct and ethical behaviour?‑‑‑No.
58.
This evidence is not relevant. As the cross-examiner himself stated, LOA does not suggest that the Position Description formed part of the Employment Contract; and LOA does not contend that, in deciding to summarily dismiss Mr Haley, it relied on Mr Haley’s not meeting the standards stated in the Position Description. Nor do I consider Mr Haley’s evidence to be relevant to his general credibility.
LOA’s “Global Code of Conduct” and other policies
59.
In his cross-examination,[68] Mr Haley was taken to a document titled “Doing the Right Thing Our Global Code of Conduct” (Code of Conduct).[69] The foreword to the Code of Conduct states that it sets out LOA’s “commitment to operating globally in accordance with our ethical standards and in compliance with applicable laws”. The foreword further states:[70]
We will be judged on our actions and nothing - whether hitting targets, completing a job on time or even a direct instruction from a manager - is more important than doing the right thing. This Code applies to everybody within [LOA], at all levels, and we also expect our suppliers to follow and uphold the intent of the Code by complying with our related policies.
60.
The Code of Conduct included the following statements:
(a) Everyone directly employed by LOA must follow the Code of Conduct.[71]
(b) If any person thinks there may have been a breach of the Code of Conduct they must report it.[72]
(c) Anything a person reports “will be treated in strict confidence and communicated on a need-to-know basis only.[73]
You can raise concerns anonymously if you prefer to, although this may make it more difficult for us to investigate. We value the courage it takes to speak up about unethical behaviour and will never penalise you for raising a concern even if your suspicions prove to be unfounded. Raising a concern will not adversely affect your career. We will protect employees against malicious anduntrue allegations made against them. In such cases we may take disciplinary action against the person making the allegation.
(d) LOA:[74]
will not tolerate any retaliation or discrimination of any kind against anyone who does the right thing. If you or anyone else you know is experiencing retaliation or discrimination, don’t put up with it – report it at once.
(e) LOA never “make or accept any improper payments to obtain, retain or improve business”.[75]
(f) LOA never:[76]
(i) falsify expenses or claim for expenses not incurred on legitimate company business;
(ii) make a false claim by knowingly misrepresenting or inaccurately recording time spent or materials or services provided; and
(iii) allow anyone else to act fraudulently on our behalf.
(g) LOA always abstains from “any decision-making process where our motives, loyalty or independence could be questioned”.[77]
61.
The Code of Conduct also had a section headed “Harassment and bullying” which, included the following statements:[78]
Harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Bullying can take the form of physical, verbal and non-verbal conduct.
. . . .
We never:
. . . .
• threaten a colleague, supplier, customer or other third party with physical violence
. . . .
• allow retaliation or victimisation of an employee who raises a complaint in good faith or who participates in an investigation
62.
Another LOA policy that is in evidence is headed “Group Investigation Guidelines Australia Hub” (LOA Investigation Guidelines).[79] I will refer to some of the statements contained in this policy later in these reasons.
25 September 2018 - Mr Haley commences employment with LOA
63.
On 10 September 2018 Mr Haley was granted a Temporary Skill Shortage (subclass 482) visa that was valid until 10 September 2022 (482 visa).[80] The 482 visa was subject to visa condition 8607 which, among other things, meant:
you must:
• only work in the occupation for which your visa was approved. To work in a different occupation you must apply for and be granted a new TSS visa
• only work for the employer who nominated the position you are working in (limited exceptions apply)
• not cease employment for a period that exceeds 60 consecutive days
. . . .
If you stop working for the employer who nominated you, within 60 days you must do one of the following:
• find another employer who is willing to nominate you
• be granted another type of visa
• make appropriate arrangements to depart Australia
or you may be in breach of condition 8607 and could have your visa cancelled.
Your visa permits you to change employers if they have an approved nomination with you identified as the nominee, and the occupation specified in the nomination is the same as the occupation that was approved for this visa.
64.
A 482 visa was also granted to each member of Mr Haley’s family unit. These were his wife, and their two daughters, one born in 2013, and the other in 2014.[81]
65.
By email sent on 11 September 2018 a migration agent employed by LOA informed Mr Haley that the 482 visas had been granted;[82] and there is no dispute that Mr Haley commenced his employment with LOA on 25 September 2018.
Work performed by Mr Haley at commencement of his employment
66.
In his first affidavit Mr Chatwin deposed that when Mr Haley arrived in Australia his working visa had not been finalised; and that, during the period in which he was waiting for his visa to be issued, Mr Haley had been given “an interim role on several live projects”, one of which was for Mr Haley to resolve a large claim that had been made against LOA by a contractor on the “Darlington Road” project. Mr Chatwin further says that, once a visa had been issued to Mr Haley, he moved to providing support for the “Clients & Markets team in preparing tenders for new work”.[83]
67.
Mr Haley denies he commenced working before he had been granted a visa that entitled him to do so, noting that the 482 visa authorised him to commence work on 10 September 2018, that it would have been illegal to commence working in Australia before 10 September 2018, and that Mr Chatwin himself, in his first affidavit,[84] stated that “Mr Haley’s commencement date was 24 September 2018”.[85] Mr Chatwin was cross-examined about his having deposed that, during the period for which he was waiting for his visa to be issued, Mr Haley had been given “an interim role in several live projects”:[86]
So I can take you back to the visa, but the date of the visa being granted for me was 10 September 2018. Do you need me to take you back to that visa?‑‑‑No, I recall that.
You recall that, and if you recall, we discussed my start date, which the respondent has agreed and agreed a fact, it was 25 September 2018, which you said it was on or around that date, but you can’t quite recall?‑‑‑Yes.
So is it true that I commenced work whilst waiting for a visa to be issued?‑‑‑It was not, that previous question.
Yes, I’m asking for clarify. Did I, yes or no – did I commence work without a visa?‑‑‑I can’t recall, Tom. I don’t – I can’t recall. I just can’t recall.
Okay, and ‑ ‑ ‑?‑‑‑It would be unusual, but you can come over on working visas and things like that. I think we were trying to have it really – just get it all finalised, didn’t want you coming over here on a temporary working visa and then going back if the visa was rejected, but I actually just can’t recall how it all played out. All I can recall is you got your visa successfully and thankfully, and then, you started in Australia, and when you got here, we firmed up the exact duties you were going to be fulfilling under that grade 7A commercial role – commercial leader role.
68.
The evidence is clear that Mr Haley commenced work with LOA under the Employment Contract on 25 September 2018, after he had been granted the 482 visa.
69.
Although Mr Chatwin was not ready to accept he was incorrect in deposing that, during the period in which he was waiting for his visa to be issued, Mr Haley had been given “an interim role in several live projects”, Mr Chatwin accepted he was incorrect in deposing that the initial tasks to which Mr Haley was assigned related to a claim a client had made against LOA; the task related to a claim LOA had made against a client.[87] Mr Chatwin was also cross-examined on that part of his affidavit in which he deposed that, once a visa had been issued to Mr Haley, he moved to providing support for the “Clients & Markets team in preparing tenders for new work”:[88]
MR HALEY: . . . . And then, the next sentence says, “Once his visa had been approved, Mr Haley moved to providing support to the clients and markets team in preparing tenders for new work.” Do you read those words, Mr Chatwin?‑‑‑Yes.
Now, the dates that we have – the dates in evidence that we’ve covered previously state or suggest that the visa was approved on 10 September 2018, and I commenced work on or around 25 September 2018, so approximately 15 days. In that 15 – at that time, you say that I moved to providing support to the clients and markets team in preparing tenders for new work. The question is which tender did I work on – what tenders did I work on when I started my employment?‑‑‑I don’t recall.
Did I work on tenders when I started my employment?‑‑‑Yes, I believe so.
Which ones?‑‑‑I can’t recall.
Okay. So did I provide any support to the clients and markets team on the day that I started or on – in the first month that I started work, the first three months, let’s say?‑‑‑I don’t – just don’t recall, Tom. It was – I was really trying to land you in fairly softly into the business, make sure you had time to familiarise yourself with the country. So it may not have been in the first month, but I do recall Darlington kicking off, but I just can’t recall, Tom. There’s so many staff that I deal with and I just can’t remember what they were doing at every point, you know, especially four years back.
Okay. So it’s not a statement of fact, but it’s a statement of what you recall at that particular point in time. Would that be a fair ‑ ‑ ‑?‑‑‑It’s what I recall, yes.
Mr Haley expresses concerns about his role within LOA
70.
Mr Haley gives evidence which, if accepted, shows early into his employment with LOA he encountered difficulties integrating into LOA’s management structure, and that he had informed Mr Chatwin of these difficulties. Mr Haley’s evidence is as follows:
(a) In around March 2019 Mr Chatwin published an organisation chart for the commercial leaders which showed Mr Haley was responsible for projects in Perth. Mr Haley, however, did not manage any projects in Perth and, within a few weeks of the publication of the organisation chart, the projects in Perth had been reallocated to another commercial leader.[89]
(b) From March 2019 Mr Haley reported to Mr Paul Milne (Executive Director, Core & Specialist Businesses); but Mr Haley was allocated projects that required him to interface with three different general managers, these being Mr Greg Cook, Mr Craig Simpson, and Mr Axel Armstrong, as well as with Mr Milne. The allocation of projects meant that Mr Haley worked within two business streams, namely, “Major Projects”, and “Core & Specialist Businesses”, and he did not feel he was accepted in either of these business streams; and this left Mr Haley feeling isolated.[90]
(c) In around October 2019 Mr Haley raised with Mr Chatwin his feeling isolated. He told Mr Chatwin that the portfolio, role, and his place in the business “were not working for me”, and that Mr Haley said he believed he could offer more value as commercial leader of the Major Projects division. Mr Chatwin committed to considering this and coming back to Mr Haley.[91]
(d) About one or two weeks later, Mr Haley had a meeting with Mr Chatwin which Mr Chatwin described as being an “informal 360 degree feedback”. Mr Chatwin, who was reading from notes, said he had discussed Mr Haley with a number of the executive team. Mr Chatwin said:
(i) Mr Milne said Mr Haley did not attend meetings on occasion (in response to which Mr Haley said that was due to conflicts in the diary which, in turn, were the result of Mr Haley’s responsibilities to multiple stakeholders);
(ii) Ms Annabel Crookes said Mr Haley was “like Andy Higgs”, and that Mr Haley needed to be careful; and
(iii) Mr Pat Cashin said that Mr Haley was “not in the detail”.[92]
71.
LOA has not adduced any evidence in response to this part of Mr Haley’s evidence; and LOA has not otherwise sought to challenge this part of Mr Haley’s evidence. In those circumstances, and given there is nothing inherently implausible about Mr Haley’s evidence, I accept his evidence.
72.
According to Mr Haley, in January 2020 he had a conversation with Mr Paul Milne in which he sought clarity about his position. Mr Milne said that he had an allowance in his overhead for two commercial leaders; one of those positions was occupied, and the other needed to be based in Perth. Mr Milne said he considered Mr Haley’s skill set was better suited to Major Projects, in response to which Mr Haley said he felt isolated by the Major Projects teams, and he asked for advice about how he could improve the situation. Mr Haley said he was being excluded from key meetings for reasons unknown to him. Mr Milne said he would raise this with “Pat”.[93]
73.
LOA has not adduced any evidence in response to this part of Mr Haley’s evidence; and LOA has not otherwise sought to challenge this part of Mr Haley’s evidence. In those circumstances, and given there is nothing inherently implausible about Mr Haley’s evidence, I accept his evidence.
The NSW Bushfire Clean-up Project
74.
In around late January 2020 the New South Wales Government (NSW Government) selected “Laing O’Rourke” to be the lead contractor to clean up properties that had been damaged or destroyed by the bushfires that had occurred over the previous Christmas and New Year period (Bushfire Project);[94] and the NSW Government entered into a contract (Bushfire Project Contract) with Laing O’Rourke Australia Construction Pty Ltd (LORAC) to carry out the Bushfire Project.[95] In his affidavit Mr Chatwin deposed that the scope of work of the Bushfire Project included demolition, and waste and asbestos removal in relation to around 3,000 properties across New South Wales that had been damaged or destroyed by the fires. The Bushfire Project also required “Laing O’Rourke” to liaise with local communities to carry out those works.[96] Mr Chatwin gave a slightly more precise statement of the scope of works in an email he sent to Mr Haley and others on 23 January 2020:[97]
The scope of works is $100m of demolition, utility capping, contaminated asbestos removal of around 2,800 properties in NSW (1/3 south of Sydney, 2/3 north of Sydney), 2 offices Mount Street Level 19, and Grafton to tie in with W2B. Initial works to be complete in 6 months, scope could double as there are another 3,000 - 5,000 buildings to clear up across the state . . . .
75.
Although all of the documents that constitute the Bushfire Project Contract are not in evidence, it appears it was a “cost reimbursable” contract. That is how Mr Haley described the Bushfire Project Contract in the email he sent to Mr Chatwin on 30 January 2020 to which I refer below.[98] It is also apparent from the email Mr Chatwin sent to Mr Haley and others on 2 April 2020 which also shows by April 2020, the scope of the Bushfire Project had increased and was set to continue to increase:[99]
[T]he Bushfires project is growing from the initial order of $100m to potentially $350m now that the Client has doubled the size of the scheme and worked out the true costs. We get . . . % margin on this project so that is $ . . . over 6-7 months and is around . . . %+ of our revenue for the next few months, we have to therefore weigh this up when looking at resourcing . . .
76.
According to Mr Chatwin, Mr Paul Barrie was appointed by LOA to be the “Project Director” for the Bushfire Project, and the “executive team” for the Bushfire Project were the “Legal Director”, Ms Annabel Crookes, the “Employee Relations Manager”, Mr Murray Curnow-Rose, and the “Senior Human Capital Advisor”, Ms Michelle Salisbury.[100] In evidence given under cross-examination, Mr Chatwin said that by “executive team” Mr Chatwin intended to mean “senior team”.[101]
77.
The general nature of the tasks LOA saw itself as having to perform under the Bushfire Project Contract, and the manner in which LOA would deploy its labour force to perform those tasks, are described in a memorandum Mr Barrie and Mr Cashin issued by 6 March 2020 (Project Conditions Memorandum):[102]
Project Conditions
The company recognises the NSW Bushfire Cleanup Project requires a team of highly mobile and flexible employees to drive and deliver the Community Recovery efforts in a compressed timeframe. The location of the works are regional and remote with heightened sensitivities following the unprecedented fires across New South Wales.
In acknowledgement of [the] task ahead, the employees mobilised to the NSW Bushfire Cleanup Project will receive new employment conditions effective upon their commencement.
The application of these conditions will be dependent on the employee’s engagement on the project with respect to their location and role.
Work Locations
Employees will be based at various locations throughout the lifecycle of the Project dependent on the Project requirements at that time. Project Governance Hub will be located at the Laing O’Rourke North Sydney office with three operational hubs and a number of satellite offices located around regional NSW.
Project Roster and Working Hours
Two rosters will be observed on NSW Bushfire Cleanup Project;
1. Project delivery personnel (Sydney, Hub and Field) will be required to work an average of 10 hours per day/ 53 hours between Monday – Saturday, no operations on Sunday.
The monthly roster broken-down as followed:
• Week 1 – Monday to Saturday (Sunday off);
• Week 2 – Monday to Friday (Saturday and Sunday off);
• Week 3 – Monday to Saturday (Sunday off);
• Week 4 – Monday to Thursday (Friday to Sunday off);
2. Project support personnel (Sydney and Hub) and will be offered either 38 hour standard weekly Monday to Friday roster or the project roster. Project Allowance will not be applicable on the 38 hour standard weekly Monday to Friday roster.
. . . .
Project Uplift
Upon commencement on the Project, all employees will be provided with a 30% Project Allowance on gross base salary. This allowance is to compensate employees for the mobile and flexible nature of the work and for the additional hours that will form part of their roles.
Conditions to apply Project Uplift
1. Project Uplift is applied to Full Time Transfers to NSW Bushfire Cleanup Project;
2. Full transfer in SuccessFactors to NSW Bushfire Cleanup Project;
3. Shared or Part-time personnel do not receive the Project Uplift;
4. Existing Disturbance Allowance is removed;
5. Project personnel will be required to work 10 hours per day/average of 53 hours per week between Monday – Saturday, no operations on Sunday;
6. Travel to and from Hub locations Is a personnel responsibility, expense claims for personnel vehicles are not allowable;
Mr Haley’s role in the Bushfire Project
78.
Mr Haley was appointed the leader of the Commercial Team for the Bushfire Project. According to Mr Chatwin, Mr Haley was responsible for overseeing all aspects of the Bushfire Project in relation to commercial governance; and that Mr Haley’s specific tasks included:[103]
(a) overseeing the selection and procurement of subcontractors;
(b) overseeing the processing and approval of payments to subcontractors by LORAC;
(c) overseeing the preparation and provision of information relating to project costs to government stakeholders;
(d) monitoring compliance with LORAC's and government stakeholders' governance rules and procedures; and
(e) managing client relationships for commercial matters with his commercial counterparts in the principal client organisation.
79.
Mr Haley was based in Sydney and worked out of LOA’s head office in North Sydney, but was also expected to visit the areas where work was being carried out in connection with the Bushfire Project.[104]
80.
According to Mr Chatwin,[105] LOA divided the areas of operations of the Bushfire Project into three regions, these being the “North Region”, “Central Region”, and “South Region”. Each region had a Commercial Manager who reported “functionally” to Mr Haley, although their direct reporting was to project leaders in each of the three regions. The Commercial Manager for the South Region was Mr Andrew Byrne. Mr Byrne’s team included the following employees:
(a) Ms Ashleigh Badham, Senior Quantity Surveyor;
(b) Mr Shane Neely, Quantity Surveyor; and
(c) Mr Shaun Boyle, Commercial Administrator.
81.
Also according to Mr Chatwin,[106] in addition to the appointment of the commercial managers for each region, a commercial manager was appointed for the entire Bushfire Project. Ms Holly Hatcher was appointed to that position; and she had overall responsibility for the commercial governance of the entire Bushfire Project.
82.
As I have already noted, in paragraph 23 of his affidavit of 13 July 2021 Mr Haley deposed that the reporting line of the commercial team was direct to him, and that Mr Haley accepted that evidence is not correct. I therefore accept Mr Chatwin’s description of the organisation of the Bushfire Project and the various reporting lines.
83.
In relation to Ms Hatcher, Mr Haley disagrees with Mr Chatwin’s evidence that Ms Hatcher had overall responsibility for commercial governance of the Bushfire Project; Mr Haley says her responsibilities consisted of project wide commercial co-ordination; management fee; subcontract shared costs; and professional services.[107] Mr Haley relies on an email he sent on 28 February 2020.[108] I do not see any material difference between Mr Chatwin’s and Mr Haley’s descriptions of Ms Hatcher’s roles; and in any event, nothing turns on a precise identification of the functions Ms Hatcher carried out on the Bushfire Project.
84.
According to Mr Chatwin[109], when Mr Haley took on the role of leading the commercial team for the Bushfire Project, his formal title and position grade remained unchanged. He continued to be “Grade 7a Commercial Leader”. Approximately two weeks after the commencement of the Bushfire Project, however, it became clear to Mr Chatwin that the demands of leading the commercial team would require all of Mr Haley's time and effort. Mr Haley had on a number of occasions told Mr Chatwin that he did not have time to do other jobs because there was too much work to do on the Bushfire Project. In around early February 2020 Mr Chatwin and Mr Haley had the following conversation:
Mr Chatwin: Tom, I think we can both see that your role on this project is going to be very demanding. I agree with you that we need to remove your other responsibilities as Commercial Leader so that you can focus on the project full time.
Mr Haley: Yes, I think that’s a good idea.
85.
Mr Haley does not appear to dispute he had a conversation to the effect deposed to by Mr Chatwin. Mr Haley instead says that Mr Chatwin does not explain the preceding conversations that had occurred, and in particular does not say that it was Mr Chatwin who had proposed to Mr Haley that Mr Haley allocate his other responsibilities to another commercial leader, a proposal with which Mr Haley initially disagreed.[110] It is not necessary to make any findings about these matters; and I otherwise accept that in early February 2020 Mr Haley and Mr Chatwin had a conversation to the effect Mr Chatwin deposes.
86.
Contemporaneous documents reveal a more precise sense of the tasks Mr Haley was required to, and did perform, particularly at the beginning of the Bushfire Project. One was to establish a system for the control of costs. That is evident from the following email Mr Haley sent to Mr Chatwin on 30 January 2020:[111]
….I am having sleepless nights about cost governance and cost overspends; the speed and ferocity of this means if we don’t have control from the start we will never ever recover. I think there is a ‘blank cheque book’ culture that could set in to the team very quickly . . . . and it will be commercial at the back end reconciling, demonstrating and proving cost. The contract may be cost reimbursable but if we blow the budget we will be criticised and, whether we like it or not, we will end up wearing a chunk of it. I don’t want to be in that place and really need another Holly to set strong and robust cost governance early on, whilst also working with the delivery teams to find solutions to their needs which needs to be a priority.
Is there anyone else you can think of? . . . would be ideal if the date can be pushed out? I wouldn’t make a case and push it if this wasn't a critical issue. I can tolerate B players later down the line but now I really strong A players to set this off on the right track.
I will make the same plea at the commercial leader meeting on Tuesday.
87.
Another task was to specify roles, responsibilities, and reporting requirements for the commercial team. That is evident from the email Mr Haley sent on 28 February 2020 to a number of persons:[112]
Further to Michelle’s email re org charts, please find attached a further detailed structure chart containing roles, responsibilities, and reporting requirements for the commercial team. This has been mapped against the WBS structure and delivery leads to ensure coverage across the cost structure and across the programme.
The commercial support team are designed slim at the moment whilst we establish the rules for distributing costs and how much of this can be automated; throwing resources at manual data input and processing will not be the answer but I recognise we will need more. I am working up options in the background to supplement the attached with … or use consultants to deal the peaks. I will be looking to the Commercial Managers to develop these requirements relative to the scope of their responsibilities.
Would you review the responsibilities and identify whether you consider anything has been overlooked? I will also at the SLT on Monday which will provide an opportunity for feedback. I can think of a couple of things still to work through (change control, cash flow forecasting and contingency reporting) so am proposing the attached as a final draft and I will conclude during the course of next week.
88.
Yet another task was to put together a commercial team that would enable LORAC perform its obligations under the Bushfire Project Contract. The tasks Mr Haley performed in that regard are revealed by a number of emails. For example, in an email he sent to Mr Murray Curnow-Rose and others on 19 March 2020, Mr Haley said:[113]
We are putting in place the building blocks and the systems to automate this process but I will still need a core group of people pulling these together for the client. I appreciate these are uncertain times at the moment but Bushfire recovery presents a good cash and volume opportunity (assuming delivery isn't impacted too severely). We cannot do this without a reconciliations team. The regions are already under a huge amount of strain procuring 20-30 plus contracts per week in some cases. I don't have the resources to stack procurement and reconciliations so the cost reconciliations would suffer - procurement and delivery would take priority. Any help would be appreciated.
89.
Another example is the email Mr Haley sent on 2 April 2020 to Mr Barrie to which I refer below.[114]
90.
Mr Haley gave the following evidence about the role of the commercial team that had been assembled for the purpose of the Bushfire Project:[115]
. . . . The role of the commercial team was to collate records from the field staff and to apply rates to those records, to check those records, and a huge volume of them, hundreds per week, ensure that they were compliant with the contract and then pay some contractors and make cost submissions to the client. So it was extremely administrative, very focussed on the contract, very focussed on the costs. We dealt with in that period 20,000 pieces of evidence, of information which we had to organise and submit, both to the client and to the external auditors, excuse me. So whether people did interface with the public, it’s possible, and that certainly that wasn’t a core part of their role. We were very, very focussed on turning the handle on documentation and providing it to client audit and for – and we had a Royal assent audit. We had I think people use KPMG and client auditors also. Huge pressure and that was the core responsibility of me and that team or – and their day-to-day duties.
91.
There is also evidence about the work Mr Haley performed. In an email Mr Chatwin sent on 23 July 2020 in connection with paying Mr Haley a project allowance (to which I refer later) (Project Allowance), Mr Chatwin stated:[116]
Tom has worked as hard as anyone I’ve seen on bushfires, I can’t fault his effort, late nights, weekends was definitely the norm . . . . This is also where 17 years comes in, his efforts . . . in the 6 months prior where he was massively under pressure and he braved through it shouldn’t be forgotten.
Alleged complaints or inquiries made before 3 July 2020
92.
In the Application Mr Haley identifies a number of communications which he says constitutes his making a complaint or inquiry in relation to his employment, and which he claims constituted the exercise by him of workplace rights.
Alleged Complaint/Inquiry No 1
93.
Mr Haley says that on 2 March 2020 he attended a meeting in LOA’s North Sydney office with Mr Mark Dimmock (Clients and Markets Executive Director) and Ms Annabel Crookes who briefed Mr Haley on how they had concluded the Bushfire Project Contract with “the client”. After Mr Dimmock had left the meeting Ms Crookes asked Mr Haley whether “Richard Crookes Constructions would be engaged on the bushfire recovery programme”. Mr Haley said “we had a procurement plan” and “Richard Crookes Constructions were not part of that plan”. Ms Crookes made no enquiry about any other subcontractor.[117]
94.
From 2 March 2020 to 14 March 2020 Mr Paul Barrie spoke to Mr Haley on two occasions about procurement in the South region, and recommended that “we should involve “someone like Richard Crookes””; and on 14 March 2020 Mr Barrie had sent an email to a number of persons in which he stated:[118]
I’ll let Richard and the team finalise that by TUESDAY, and recommend to us with the approach, including who/which contractors that that is to be, including assessing Aboriginal BT (which seems a good news story hopefully), and others perhaps such as Richard Crookes. The right answers will come out of that and I’ll personally be very keen indeed, to ensure that we are all aligned in the messaging on our assessment and decisions to be made on that.
95.
Mr Haley further says he received a call from Mr McAuliffe, the project leader, who informed him that Mr Panomarenko, a procurement officer, had received a call from Mr Barrie, and that Mr Barrie had ordered Mr Panomarenko to send the tender inquiry to Richard Crookes Constructions. Mr Haley then gives the following evidence:[119]
On or around 30 March 2020, I raised this with Simon Chatwin (in a conversation witnessed by . . . . ) and asked whether the direction to use Richard Crookes Constructions was a business decision. Simon confirmed to me that there was no business requirement to use Richard Crookes Constructions and that it was for the project to decide.
Alleged Complaint/Inquiry No 2
96.
According to Mr Haley,[120] on 16 March 2020 he attended a meeting with Mr Barrie and Mr Curnow-Rose (who attended by video conference). Mr Barrie arranged the meeting because Mr Haley raised concerns about the Project Allowance. I find that is a reference to the “Project Uplift” referred to in the Project Conditions Memorandum. The concerns Mr Haley says he raised was that the Project Allowance was intended for field staff, and not office staff which, Mr Haley says, Mr Cashin and Mr Chatwin, at an “executive settlement meeting” on 24 January 2020, stated was the case. Mr Curnow-Rose, who is office based, challenged this, and said that the policy he had written covered office and field staff. Mr Haley says he questioned the morality of this, and whether office staff should receive the allowance when the conditions on which they were performing their duties was not different to their previous roles, responsibilities, and location. The meeting concluded on the basis that there would be no change to the policy contained in the Project Conditions Memorandum. Mr Haley says that he “later came to understand that all the people in that meeting, who were office based, were receiving the allowance except me”.
97.
LOA has not called Mr Barrie or Mr Curnow-Rose to give evidence; so there is no evidence from them that responds to Mr Haley’s evidence about his attending a meeting with Mr Barrie and Mr Curnow-Rose on 16 March 2020, and the matters he says were discussed at the meeting; nor is there any other documentary evidence that refers to any meeting between Mr Haley, on the one hand, and Mr Barrie and Mr Curnow-Rose, on the other. I therefore find that on 16 March 2020 Mr Haley met with Mr Barrie and Mr Curnow-Rose, during which:
(a) Mr Haley expressed his understanding that the Project Allowance was intended for field staff, which had been stated at an executive settlement meeting on 24 January 2020;
(b) Mr Curnow-Rose challenged Mr Haley’s understanding, and asserted that the policy he had written covered office staff and field staff;
(c) Mr Haley questioned the morality of that view, and whether office staff should receive the Project Allowance when the conditions in which they were performing their duties were not different to their previous roles, responsibilities, and location; and
(d) the meeting concluded that there would be no change to the policy Mr Curnow-Rose had written.
Alleged Complaint/Inquiry No 3
98.
In the Application Mr Haley says that on 27 March 2020 he sent an email to Mr H (copied to Mr Barrie) in which Mr Haley enquired why a payment had been requested to be processed without a sub-contract order in place between LOA and the relevant subcontractor. Mr Haley says he recognised this to be outside LOA’s governance procedures, and was a serious matter.[121] The email Mr Haley says he sent is not in evidence; but there is in evidence the following email Mr Barrie sent to Mr Curnow-Rose on 27 March 2020.[122]
There appears to have been a brewing series of matters unfolding with [Mr H] at the centre, acting outside of our Governance and procedures and these are as [Mr Haley] says have “placed the commercial team in a compromised position”.
I believe we have probably had some views around the early ramp up and confusions that may have led to him (and he quotes . . . ) in taking certain calculated decisions (e.g. acting to get contractor attending for media event), but I reckon that leeway has gone, and I think the attachments now warrant some action.
I think it would be best if the three of us could chat this over the phone, to discuss the best next steps with [Mr H] and how we approach this, this week.
Let me know if you’d both be ok for a quick 10mins tomorrow or Sunday?? ... as Monday is already back to back, and I don’t want to let this one lay out any further.
99.
On 7 April 2020 Mr Haley sent an email to Mr Barrie and to Mr Curnow-Rose in which he identifies “another governance breach by [Mr H] as this variation pricing has not been authorised in accordance with the DoA”. Mr Haley asked whether there have been “formal discussions with” Mr H “about this authority”.[123] Mr Barrie responded with the following email (underline in original):[124]
Apologies, .... I’d hold on this one, as it came out under my guidance ... it’s been off the back of a few previous discussions stretching back a few weeks with Rebecca and myself. It just kinda grew with a request to suss it out. They’ve just basically wanted to know the potential extent of the scope, time and potential costings,... So that they could then consider asking us to separately price this under a separate formal request to proceed outwith [sic] the contract. They’re not sure yet but will get back to us now that they know the kind of order of magnitude of time and expense etc.
Should have probably kept you in the loop Tom, but it was just been one of those ones that grew from a favour, to another favour ... It’s basically Rebecca’s boss who wanted her/us to just suss it out first.
As a p.s., Tom, Murray and I have chatted this morning about the other 3 infringes with [Mr H] and picking these up again now.
Many Thanks.
Alleged Complaint/Inquiry No 4
100.
In the Application Mr Haley claims that he raised complaints in relation to what he claimed was a lack of commercial resources to enable LOA to execute the Bushfire Project.[125] The evidence is as follows:
(a) On 30 January 2020 Mr Haley sent the following email to Mr Chatwin:[126]
I am having sleepless nights about cost governance and cost overspends; the speed and ferocity of this means if we don’t have control from the start we will never ever recover. I think there is a ‘blank cheque book’ culture that could set in to the team very quickly . . . . and it will be commercial at the back end reconciling, demonstrating and proving cost. The contract may be cost reimbursable but if we blow the budget we will be criticised and, whether we like it or not, we will end up wearing a chunk of it. I don’t want to be in that place and really need another Holly to set strong and robust cost governance early on, whilst also working with the delivery teams to find solutions to their needs which needs to be a priority.
Is there anyone else you can think of? . . . would be ideal if the date can be pushed out? I wouldn’t make a case and push it if this wasn't a critical issue. I can tolerate B players later down the line but now I really strong A players to set this off on the right track.
I will make the same plea at the commercial leader meeting on Tuesday.
(b) By email sent on 17 March 2020 Mr Chatwin provided “the current recruitment status of people being sought for our commercial function”.[127]
(c) On 19 March 2020 Mr Haley sent an email to Mr Curnow-Rose presenting a business case for the “continuing offers” to three persons.[128] Mr Curnow-Rose responded that, “[a]s discussed, at this stage we are unable to progress with offers for the candidates listed”.[129] Mr Curnow-Rose suggested looking at internal options and support from other projects. Mr Haley, in turn, responded by email on 19 March 2020:
Can this be challenged (there is also … to add to the list)? I cannot stress how business critical the recruitment of these individuals will be in the locations we are looking to place them. The cost reconciliation process is on the verge of exploding. At peak we will have 150 properties to reconcile on a weekly basis (maybe more) with no immediate resource to complete this (that’s 30 per day, and around 5 or 6 properties per person per day just to keep up). The complaints are there from the client already and have been for weeks, and we have hardly incurred any cost or finally completed many properties; this will amplify in a few weeks as the delivery ramps up significantly. The client needs this cost information from us in order to recover from OEM - if they don't recover quickly, we don't get paid quickly. I cannot emphasise enough the importance of getting some people in to the team asap.
(d) At 10:10 am on 20 March 2020, in an email to Ms Fraser (copied to Mr Cashin) Mr Chatwin stated “[w]e have our first business case for urgent recruitment continuation” in relation to the three people.[130] Mr Chatwin stated:
PROGRAM CRITICALITY
• We’ve hardly any commercial staff out there to deal with the Subs payments and procurement for our baseline project, and so the client cost reconciliation etc would halt (This is a 'major' issue for PWA right now, and again hammered into us at the Steerco today).
• Out of our 45 staff yet required for the site based roles (note these are cost reimbursable on an actual cost basis separate to the head office core teams), we think our weak link in the chain now is not having these 4 commercial staff, the 3 HSE staff, and 1 Works Manager, and 2 Supervisors according to Paul Barrie. Paul Barrie and Tom Haley feel we would not be able to service our ‘baseline’ contract of 2800 properties, never mind the now 4000 properties variation instruction that we are now in negotiations on (the scheme will double).
• We’d have to halt procurement of Subcontractors in each region shortly / next week (or following week) now as the current team cannot cope with the procurement and admin. This will delay the project.
• The cost reconciliation process is on the verge of exploding without these additions. At peak we will have 150 properties to reconcile on a weekly basis (maybe more) with no immediate resource to complete this (that’s 30 per day, and around 5 or 6 properties per person per day just to keep up). The complaints are there from the client already and have been for weeks, and we have hardly incurred any cost or finally completed many properties; this will amplify in a few weeks as the delivery ramps up significantly. The client needs this cost information from us in order to recover from OEM - if they don’t recover quickly, we don’t get paid quickly.
(e) At 11:52 am on 20 March 2020 Mr Haley sent an email to Mr Chatwin thanking him for “this being pushed”. Mr Haley continued, however, that there was a fourth person to whom a verbal offer had been made.[131]
(f) At 8:42 am on 2 April 2020 Mr Haley sent to Mr Barrie and others the following email.[132]
Following on from the weekly Bushfire exec meeting, I have set out below the commercial resource requirements to ensure we stay on top of cost reconciliations (keeps the cash moving from PWA) and the weekly supply chain payment regime (helps maximise our advanced cash, and ensures ensure [sic] weekly records from the supply chain to feed the reconciliation process).
I have outlined the current team (black), the current vacancy positions in the org chart (orange), and the additional vacancy positions required (red). We have built a phenomenal team so far which is full of talent, energy and real hard work. I’m delighted with the performance and commitment but I do feel the team is close to breaking point. The ramp up is now looming and whilst we are on the brink of automating all of our processes, there will still be a huge workload to get through. The new additions coming in next week will be a big help but I really need to fill the org structure in the next 2-3 weeks to stay ahead of the curve. You may notice an increase in the requirements for the south team which reflect the increased scope of work in that area. I have brought in a lot of new people to this team (13 currently, 9 of which are new recruits) so am really hoping we can get some tried and trusted LOR people in the team to provide some balance (this would be my preference where most are now working from home).
(g) At 8:59 am on 2 April 2020 Mr Haley sent the following email to a number of people:[133]
I’m reaching out to you all in desperate need of some help. We are on the verge of the ramp up, have suffered 2-3 week delays in getting new people on board, and we are around 8 people short in completing the team needed to keep the cash flowing on this project over the next 2-3 months. A development area for me is asking for help as I don’t do it enough, but I'm asking and I really do need some help from this leadership team.
Please could you have a look at the below and let me know if you have any options which may work in the next 2-3 weeks. We can accommodate remote working but I am ideally looking for tried and trusted people as the daily production line will fall over if we have weak links. The work is not highly skilled complex claims etc but the volume and intensity are high so it’s certainly not for the faint hearted.
FYI, we have a couple of people who have relocated to Batemans for 3 months and this is an option too for those looking to escape the CBD.
Dave - thanks for reaching out and offering to support us this week. This is a huge help for Holly who is doing a fantastic job but really needs the support your team are providing. If you have any people who might suit the below roles, then let me know.
(h) At 9:55 am on 2 April 2020 Mr Chatwin sent the following email:[134]
I want to add some emphasis around this, the Bushfires project is growing from the initial order of $100m to potentially $350m now that the Client has doubled the size of the scheme and worked out the true costs. We get . . . % margin on this project so that is $ . . . over 6-7 months and is around %+ of our revenue for the next few months, we have to therefore weigh this up when looking at resourcing, please consider this in your thinking.
An example, Parramatta is on go slow as they will run out of work to do by end of September 20 and the project will likely be demobilised for a period due to client delays with land remediation. I'd propose cutting the commercial team in half for the next 3-4 months and give Tom . . . and . . . . Can you please think along those lines.
. . . also needs a QS for . . . , he's a new commercial manager and he needs an assistant, we need to solve that as an equal priority.
We also have a commercial manager role coming up in June to lead . . .
Can you all please come up with some sacrifice options by the end of the day.
(i) At 11:17 am on 9 April 2020 Mr Haley sent the following email to a number of persons:[135]
We have a critical need for commercial people on the Bushfire programme with 8 people to find in the coming weeks. This need has been led by the client increasing the scope (almost double) which is great from a financial perspective over the next 2-3 months (cash, revenue, margin) but places a huge demand on the team. We had a commercial leaders meeting on Tuesday to identify 2-3 people who fit the profile of what we are looking for (the balance of people will be recruited and might be available to support us immediately. Jeremy's name came up and I think he would be a perfect fit in the South where we have 4 or 5 new starters and really need a tried and trusted [LOA] person who can get through the volume of work, but also provide some support to the team on our processes.
I spoke to Demi this morning and am grateful to Demi's offer to make Jeremy available to support our needs. Purpose of the email is to check-in and make sure all stakeholders are ok with this and willing to support the Bushfire programme’s requirements. Demi and I discussed a start for Jeremy on 20th April which is quick but hopefully we can make this work; the ramp up is coming with a current July finish date so this will go uick [sic].
Please let me know if there are any issues with the above. I'm really grateful for the support - we desperately need it at the moment.
(j) At 5:37 pm on 7 April 2020 Mr Chatwin sent the following email to Mr John O’Connor and Mr Kevin McDevitt, who I infer are officers of a member or members of the LOA group of companies in the UK:[136]
We have a number of QS roles to work through a huge volume of desktop commercial processes on the New South Wales bushfires clean up project. What started off as a $100m - $200m project is now turning into a $350-400m project, very simple demolition and asbestos clearance works, but volumes or small orders, valuations, payments and admin to progress from now until end of July 20.
We could definitely use people in the UK with an overlap of timezones with not a huge amount of interaction needed.
Do you think there would be anyone available for 2-4 month durations? I’ve attached a bit of background info, please don’t forward on the financial information.
(k) On 9 April 2020 Mr Milne sent to Mr Haley the following email:[137]
Tom
Frankly, I have an issue with you going straight to the project, it's just not on .....
I appreciate the importance of the Bushfires but it does not allow you to cut through the process because it suits you. CSB have already lost people to the Bushfires for extended period without even a phone call and it has to stop. So I do not agree to this until I am convinced and I have spoken with Greg, Ken and Demi.
101.
On 24 April 2020 Mr Haley attended a meeting with Mr Cashin, Mr Barrie, and Mr Chatwin. Mr Haley says he raised concerns about the staff who had been identified in the commercial leadership team meeting of 7 April 2020 had not been released, in response to which Mr Chatwin said that Mr Haley was “the most demanding person in the business”.[138] Mr Chatwin, in his first affidavit, agrees that at the meeting of 24 April 2020 Mr Chatwin said that “Tom is the most demanding person in the company”.[139] Mr Chatwin said he made that statement in the course of a discussion in which words to the following effect were spoken:
Mr Haley: I need more experienced staff on the commercial leadership team urgently.
Mr Chatwin: Tom, I have already released to you a substantial team. We are now running out of options internally and will have to recruit externally if additional hires are required. That process takes time and we cannot solve the issue at short notice.
Alleged Complaint/Inquiry No 5
102.
According to Mr Haley,[140] on 8 May 2020, Mr Haley had a telephone call with Mr Barrie. Mr Haley told Mr Barrie that Mr Haley said he was “overwhelmed and over worked”; he was “under a severe amount of pressure at work”; and that the workload was affecting Mr Haley’s personal life. LOA did not call Mr Barrie as a witness; and there is no reason for doubting this part of Mr Haley’s evidence. I therefore accept Mr Haley’s evidence.
Alleged Complaint/Inquiry No 6
103.
Mr Haley says that on 1 July 2020 he had a face to face meeting with Mr Bowman and Mr Byrne at the Bega Valley office. Mr Bowman said that a number of timesheets were being falsified by field staff, and retrospectively created.[141]
Alleged Complaint/Inquiry No 7
104.
On 25 June 2020 Mr Haley and Mr Byrne received an email from Ms Salisbury in which she identified six persons who had worked “last Sunday”. Ms Salisbury said that the project was “not operational on Sunday and our staff should not be working”. Ms Salisbury said that staff should either be working Monday to Friday, or on the “Project Roster”.[142] Mr Haley responded by email sent on 29 June 2020 in which he requested Ms Salisbury provide him with a summary of the timesheet hours and payments. Mr Haley said he was “in the south this week so can pick this up if there is anything untoward”.[143]
105.
According to Mr Haley,[144] on 2 June 2020 he had a conversation with AB, one of the employees Ms Salisbury identified in her email to Mr Haley, in which he said that two other employees had informed Mr Haley that the hours AB had claimed on her timesheet were abnormally high compared to other team members, noting that AB had claimed hours on a Sunday at a time she had also sent to an employee a picture via WhatsApp while on a bushwalk. AB told Mr Haley that she had not claimed a Sunday until a month ago, in response to which Mr Haley said AB should check her records and resolve any errors and discrepancies.
106.
At 4:11 pm on 2 July 2020 Mr Haley sent an email to Ms Salisbury in which he confirmed he had a discussion with AB, and sent the following record of that meeting:
• Attendees - Tom Haley and [AB]. 3.45pm to 4pm at . . . office
• I identified that it had been brought to my attention by HC that members of the commercial team have been working weekends and, following a request for information, it had been identified that [AB’s] hours are abnormally high when compared with the other casuals
• [AB] pulled open her timesheet and started to talk through the way this is done identifying that she has calls with Huz at 6.30am and 6pm and can evidence this with calls. [AB] also identified that she can support her hours claimed with Teams login times.
• I asked if Huz would support the daily calls –[AB] said yes, and I asked her to have a think about that again before answering
• [AB] said (unprompted about the issue) that she had not claimed a Sunday prior to one month ago – I asked her to check that detail as this didn’t meet with the timesheet info made available to me
• I explained that it probably wasn’t the time to go through the detail . . . of her timesheet at the moment, and asked that she take a look back through the hours to see whether there are any errors contained.
• I asked for this review to happen tomorrow/over the weekend and come back to me Monday confirming whether any changes should be made.
• [AB] said she had never been challenged on her timesheets in the past. I explained that it was not something I preferred to deal with but it has been raised with me and I would close out
• I explained that integrity and trust were really important values to me, so repeated the request for a review by Monday.
• I said we would take it from there.
107.
According to Mr Haley,[145] at around 5:00 pm on 2 July 2020 he spoke with Mr Jim Peach, a senior construction manager. Mr Peach said that AB had contacted him, he was supportive of AB’s claimed hours, and questioned why Mr Haley had raised the issue. Mr Haley said concerns had been raised by two other employees, and Mr Haley was obliged to raise the issue. Mr Peach said he would look into the timesheets, and get back to Mr Haley.
The Incident – evidence
108.
There is no dispute that as at 2 July 2020, five employees of LOA, Mr Andrew Byrne, Mr Shane Neely, Mr Adam Neely, Mr Shaun Boyle, and Mr Jamie Boyle (Pambula Property residents), were staying at the Pambula Property; the Pambula Property residents had booked the Pambula Property using the website “Stayz.com.au” by Central Travel Team (CTM), LOA’s external travel provider;[146] and that the Pambula Property residents were working on the Bushfire Project. There is also no dispute that on or sometime before 2 July 2020 one or more of the Pambula Property residents invited a number of other LOA employees and contractors to attend a barbecue at the Pambula Property on the evening of 2 July 2020; and that a number of employees and contractors, including Mr Haley, attended the Pambula Property in the evening of 2 July 2020.
109.
There is no direct evidence of the legal arrangements pursuant to which the Pambula Property residents were staying at the Pambula Property. There is in evidence, however, a text message Ms P, the owner, or one of the owners, of the Pambula Property sent to a person named “Amy” on 3 July 2020 (to which I refer below) in which Ms P refers to the “Terms and Condition and the tenants are in breach of this”.[147] From that statement, it is reasonable to infer, and I find, that the Pambula Property residents stayed at the Pambula Property pursuant to a lease they entered into with Mr and Ms P, or either of them. In any event, LOA, in its written submissions, proceeds on the basis that the Pambula Property residents were staying at the Pambula Property pursuant to a rental agreement, and that it should be inferred that LOA was paying “the rental expenses”.[148]
Persons who attended Pambula Property on evening of the Incident
110.
According to the report titled “Investigation into complaints made by [Ms and Mr P]” signed by Mr Curnow-Rose (being the “Second Purported Investigation Report” I identified at the beginning of these reasons),[149] the following persons were present at the Pambula Property in the evening of the Incident:
Name
Position
Employment Status
Relationship to property
Time arrived at property
Time departing property (approx.)
Andrew Byrne
Commercial Manager
Company employee
Residing at house
N/A (i.e. resident)
N/A (i.e. resident)
Shane Neely
Assistant Quantity Surveyor
Company employee
Residing at house
N/A (i.e. resident)
N/A (i.e. resident)
Adam Neely
Assistant Quantity Surveyor
Company employee
Residing at house
N/A (i.e. resident)
N/A (i.e. resident)
Shaun Boyle
Commercial Administrator
Company employee
Residing at house
N/A (i.e. resident)
N/A (i.e. resident)
Jamie Boyle
Commercial Administrator
Company employee
Residing at house
N/A (i.e. resident)
N/A (i.e. resident)
Tom Haley
Commercial Leader
Company employee
Visitor
From approximately 5pm
Did not leave premises. Stayed overnight
David Grierson
Senior Superintendent
Company employee
Visitor
From approximately 5pm
Did not leave premises. Stayed overnight
David Field
Procurement Manager
Company employee
Visitor
From approximately 5pm
12:25am – 12:35pm
Amy Lovell
Assistant Quantity Surveyor
Company employee
Visitor
From approximately 5pm
12:50am – 1:00am
Ashleigh Badham
Senior Quantity Surveyor
Company employee
Visitor
From approximately 5pm
8:30pm
Jenelle Renes
Commercial Administrator
Company employee
Visitor
From approximately 5pm
8:30pm
Tim Bowman
Senior Quantity Surveyor
Company employee
Visitor
From approximately 5pm
12:50am – 1:00am
Dan Zeng
Project Engineer
Company employee
Visitor
From approximately 5pm
12:50am – 1:00am
Jannaya Ashelford
Graduate Engineer
Company employee
Visitor
From approximately 5pm
8:30pm
Tania Ng
Graduate Engineer
Company employee
Visitor
From approximately 5pm
8:30pm
Lisa McKeever
Commercial Administrator
Labour Hire
Visitor
From approximately 5pm
1:20am
Nishan Hadjideen
Commercial Administrator
Labour Hire
Visitor
From approximately 5pm
12:50am – 1:00am
Emily Haile
Commercial Administrator
Labour Hire
Visitor
From approximately 5pm
1:20am
111.
There are a number of sources of evidence of what occurred at the Pambula Property in the evening of 2 July 2020. It would be convenient to set out the various accounts in the order of the times and dates on which the accounts were given, and then refer to the contents of the audio recording.
Account apparently given by Ms P to “Amy”
112.
There is in evidence an email “Amy” sent to “Tarsh” of “Central Travel (Australia)” at “1:40:08” on 3 July 2020.[150] At the end of her email, “Amy” describes herself as “Corporate Consultant | CTM Laing O’Rourke Team”. “Tarsh” is the name of Tarsh Woodford who occupied the position of “Hub Travel Coordinator, Central Travel Desk – Australia Hub”.[151] “Amy’s” email is as follows (emphasis added):
Disappointing news to start the day I’m afraid. I received the below message from [Ms P], property owner of the 5 Bedroom Home that we have Boyle, Byrne & Neely guys staying. [Ms P] has called me to discuss her version of events and reserves the right to cancel the booking.
Hi Amy,
It’s 1:45 am and we have had to have the police to the house after noise complaints from neighbours.
There is a strict no party policy, clearly stated in the Terms and Conditions and the tenants are in breach of this.
I will call you during work hours to discuss.
Regards,
[Ms P]
Last night at least 10 people were at the property including the 5 booked guests. Visitors included Tom (surname unknown but [Ms P] believes is Andy’s boss), David (believed to be boss of the 5 guys, a bit older than the others) and a couple of girls in a QLD plated vehicle thought to be working on the project.
The first noise compliant [sic] was raised just after midnight by 85 year old neighbour which is the owner’s mother. The guys are aware she lives next door. The owner [Mr P] visited property and asked that the party be shut down due to noise complaint and reminded them that no parties are permitted at the premises.
At 12.45 am, [Mr P] phoned and spoke to Andy, asked again that noise stop and visitors that were not house guests to leave premises.
At 1.00am [Mr and Ms P] arrived at premises and party was still going. Due to the noise the occupants could not hear knocking at main entrance door, it was open, so [Mr and Ms P] entered the property and spoke with Andy again asking the party to be shut down. [Ms P] has stressed that Andy was respectful and is very apologetic however did not appear to have any authority over the other guests.
At this time, Shaun, Shane and Tom became aggressive. They physically threatened both [Mr and Ms P], saying they had paid for the property and could do as they wish and to go away (cursing). Tom needed to be restrained by visitors to the property. At this point the Police were called, [Mr and Ms P] left the premises along with the girls that were visitors.
Photos were taken by the owners of the amount of alcohol consumed and are concerned about the state of their property as the house was only cleaned yesterday. Laing O'Rourke are paying for weekly servicing of this property.
The booking is valued at $775 per night (before weekly servicing fee). The guests have been at the property 11 nights. The owners are willing to continue the booking subject to Shaun Boyle & Shane Neely being removed from the property this weekend not return for the duration of the booking to 30 August and Tom (surname unknown) not to access property again due to the physical threats.
Andy Byrne has apologised in writing to the owners and acknowledged wrongdoing.
The remaining 58 nights is valued at $44,950 before weekly servicing so it is in best interests to work with the owners.
Can you please advise how I may return to [Ms P]. She has offered her number should Laing O'Rourke wish to speak with her about the incident . . . . .
These owners as you may recall have been very accommodating, 10% discount on long stay rate, allowed the guys to store work equipment prior to their arrival and an extra night free of charge .
113.
It is open to infer, and I find, that Ms P’s account of the Incident, as “Amy” recorded it in her email, is based on what Ms P told “Amy” in a conversation or conversations “Amy” had with Ms P. I will refer to the account “Amy” recorded in her email as the “First Mr/Ms P Account”.
Account apparently given by Ms P to Ms Woodford on 3 July 2020
114.
At 12:39 pm on 3 July 2020,[152] Ms Woodford sent an email to Mr Barrie and Mr McAuliffe (copied to Mr Curnow-Rose and Ms Salisbury) on which she copied and pasted an extract from the email “Amy” sent to Ms Tarsh Woodford on 3 July 2020.[153] This included what “Amy” recorded Ms P had told her about the Incident, namely, the First Mr/Ms P Account. The text Ms Woodford appeared to have copied and pasted replaced the words “go away (cursing)” that was contained in the email “Amy” had sent to Ms Woodford at “1:40:08” on 3 July 2020,[154] with the words “Fu*k off”. Ms Woodford noted she had again spoken to Mr P and Ms P, and she referred to a “video recording (link sent in separate email) of the owners conversation with Andy Byrne whilst they were waiting for the police, screen shots of Andy’s conversation and also photos of the property – noting the house rules state no parties”. Ms Woodford added the following (emphasis added) (Second Mr/Ms P Account) (emphasis added):
[Ms P] (the owner) passed on again (in my second conversation with her) her concern of how aggressive Tom Haley was and believes it might have been Adam who had to restrain him (as he wanted to f*ck up the old man and his Mrs) but between the 3 employees (Shane/Shaun and Tom) they were “egging” each other on.
Record of interview of Mr David Field – 8:48 am, 6 July 2020
115.
Mr David Field said he had left the Pambula Property at around midnight;[155] and in response to the question “[c]an you run me through the night” Mr Field said:
BBQ, alcohol, then there was some karaoke, talking. I decided I was going to leave before midnight and I did. I walked out and a gentlemen not part of project, came towards me, looked agitated, he said would you turn the noise off, this is your first and final warning. I said bear with me, he said that his mother was on the premises, not sure where she was. I went back in and spoke to Andy Byrne, told him I believe he was the owner and that he was outside and asked if we can we turn the noise down, music off, stopped, because the guy is upset. I left the premises. From what I recall the music was turned off when I left the premises.
116.
Asked whether in his view the music was “too loud”, Mr Field said when he was outside he could hear the music muffled, but when inside the building “it was loud” but, in his opinion, not too loud.
Record of interview of Mr Shaun Boyle – 9:00 am, 6 July 2020
117.
Mr Shaun Boyle is recorded as having given the following response to the question: “[c]an you please outline the evening for me?” (emphasis added, and errors in original):[156]
Last Thursday there was BBQ at house in Pambula, some food and drinks and then a couple of hours later we were in sitting room when we starting karaoke. We had done this done previously with company team, good team bonding exercise. We just YouTube it. Took turns going up and signing, a couple of hours passed. I was sitting down on sofa, Tom and Adam up singing at the time, I looked up and seen Tom being pushed to the side, I didn't recognise the man. I hadn’t meet him before. I recognised [Ms P], had meet her once before. They stormed through and pulled the remote off Adam. Started shouting for everyone to get out. In shock. We started saying we were renting the house and they were not allowed to enter house. There was a couple more exchanges. We moved outside towards the door. They said they would call the co[p]s, we said call them we are not doing anything wrong and we aren’t making much noise. Adam said to the owners you said we can make as much noise.
118.
After an interruption, the interviewer asked: “So Tom and Adam were signing [sic]?”, in response to which Mr Shaun Boyle said (emphasis added, and errors in original):
Tom and Adam were singing. I was sitting on the sofa, looked up and the owners come through door. I seen Tom get pushed to the side, both went towards Adam and grabbed remote, they turned off tv. We all stood up and started arguing. Said couldn’t come into house the way we they did. Moved to door, argument continued. Adam said to [Ms P] she told us we could make as much nose as we wanted to. The day we viewed house with Andrew and Adam, [Ms P] told us about resident downstairs. We locked the balcony before the BBQ so no one could go out there. Found strange as it was not too loud. Husband shouted at Adam don’t speak to my wife and grabbed him aggressively. Then Andy and Dave told everyone to go inside and they talked to them outside. That was my last interaction with couple. The cops came, no damage to house, just drinks. The cops left happy enough.
119.
In response to the question whether Mr Shaun Boyle could give a “timeline for events that night”, Mr Shaun Boyle said:
BBQ at 6pm / food, eating and chatting. The music around 9 or 10pm not 100% sure went on for 1-2 hours. Maybe rafter [sic] 12 the couple entered the house. Not 100% sure.
120.
Later in the interview Mr Shaun Boyle gave the following answers to questions Mr Curnow-Rose asked (emphasis added, and errors in original):[157]
MCR - Do you believe the actions appropriate that night of the group?
SB - Reacted the way. Not the way we accused of. Not aggressive, intimated. They barged through aggressively.
MCR - Who barged through?
SB - Tom pushed out of the way, ran towards Adam.
MCR - So they pushed pasted Tom towards Adam?
SB - Yes
MCR - What was he doing?
SB - Singing
MCR - Where were they?
SB - We were sitting down, they were in front of us, they barged through Tom to get remote off Adam.
MCR - Who barged through?
SB – Both of them
Record of interview of Mr David Grierson – 9:36 am, 6 July 2020
121.
Mr David Grierson is recorded as having given the following answer to the question “[c]an you please provide a brief overview of the evening?” (emphasis added):[158]
Majority of people rocked up at 7pm. Commercial team did BBQ, food, alcohol. We stood in kitchen area, eating, having a few drinks. Around 10:30 - 11ish we went into the lounge area, had karaoke. Initially around 20 people in kitchen and karaoke was 10-12 people max. I would say 11:30am [sic] owners rocked up come in to the lounge and basically told everyone to get out. Everyone went into the kitchen, all talking collectively around the bench in the kitchen and then basically the owners said she had called the police, told everyone to get out. I said everyone move way as they were all stood there. I tried to get everyone out of the way, myself and Andy tried to diffuse the situation with the owners. We went outside, had a conversation with her and husband, asked not to ring police, she said she already did it. Police came into house, we explained what happened and they left
122.
In response to the question, “[w]hat was [the] emotion in the room?”, Mr Grierson said (emphasis added):[159]
There was shock from the commercial boys that live there as the owners said get out. In the kitchen during the conversation, there was to-ing and fro-ing. Someone said why you want us out, the owner went fucking get out. I can’t remember who said it, but they said we rented this place, the owners said we know, we want you out. When conversation happened, Andy and I tried to diffuse it, tried to appease the owners as they were agitated as they just walked into the house.
123.
At that point, Mr Curnow-Rose is recorded as asking: “[w]hat was the reaction of Tom Haley?”, in response to which Mr Grierson said (emphasis added):
Tom was sort of further back than most people. It was a heated discussions [sic], I can’t recall what was said. I was in there talking, it was so quick to be honest. They wanted everyone out of the house. I introduced myself to try and sort things out. The owner [Mr P] was agitated, I think Tom felt that he didn’t want to see the young lads being intimidated . . . . During the conversation, Tom said you “can’t do this”.
124.
Mr Grierson also gave the following information (emphasis added):
MCR - Coming back to Tom, you saying word like intimidation was there any heightened emotions displayed during incident while the owners were there?
DG - Depends how you interpret it - you could say aggression. I didn’t want owners to feel intimidated. There was no one walking towards them threatening them. They said get out, Tom said you can't do that, owner said I can do what I fucking want. Heated conversation swear words used. The women turned around and said I called the police.
. . . .
MCR - Police turned up, what time?
DG - 15/20 minutes after owners left, they came into the house as well.
MCR - What did they say?
DG - Myself and Andy spoke with them, explained 2 people singing karaoke, owners turned up, told us we were being too loud, he said it's not a problem. The police didn't seems [sic] too phased about it.
MCR - Why were the owners so aggravated?
DG - In light if [sic] what I know now, I can understand. Apparently an older lady lives underneath the house, only found that out after the incident.
MCR - Do you feel the behaviour was overtly emotional?
DG - They bowled in, snatched the remote control off someone. We all walked into the kitchen, they said we want you fucking out of here. The guys live there, not doing anything wrong, don’t want to piss you off etc, that’s why Andy and myself said a couple of us speak with the owners and diffuse the situation.
DG – They were upset because their mother lives underneath. There wasn’t obsessive [sic] noise, only 1-2 people signing [sic] at the one time.
MCR - Did at any point a Laing O’Rourke employee restrain another Laing O’Rourke employee?
DG - Um, restrain, I might have barged people to get out of way, barged is the wrong word, I put my arms out to advise them to move out of way to have a decent conversation.
MCR - Where [sic] there any comments that were made that were overtly aggressive to the owners that stick in your mind?
DG – Don’t recall, no.
MCR - Did at any point a Laing O'Rourke employee make physical treats [sic] towards the owners of house?
DG – Don’t recall words or physically threats, conversation between Laing O'Rourke people and the owners, I can't remember what was said.
MCR - Understand that private location, BBQ and alcohol provided, was anyone overtly intoxicated?
DG - No one blind drunk, people have a few bottles of beers and eating food. No one out of order/out of control.
MCR - Are you comfortable in times you have recollected?
DG - Approximates, wouldn’t put my house on it.
MCR - Can we go back for a moment, one of the owner’s grabbed remote control? Can you please explain?
DG - Took it out of someone's hands, as they were using it as microphone.
MCR - Male of female home owner?
DG – Can’t recall, sorry
Record of interview of Ms P – 11:30 am, 6 July 2020
125.
Ms P is recorded as giving the following information (Third Mr/Ms P Account):[160]
At 12:10 am my husband received call from his mother . . . who lived downstairs. She said there was a, loud party upstairs and it had been going since 8:00pm and she had enough. We live 10-15mins away, so [Mr P] drove there and saw what he thought was a senior Laing O’Rourke person. Thought he was senior because of age. [Mr P] explained the no party policy, asked for him to shut it down. [Mr P] had taken photo of the event. He saw the man walk back into the house and saw all people turn around and look at him. That man left. [Mr P] continued watching from the Hill. There was no change and the party was continuing, so [Mr P] spoke with Andy. Advised him of the no party policy, and that it needed to cease immediately, said it was the first and final warning. Andy apologised and [Mr P] left. Andy was the person who booked with us and he seems decent and respectful, so thought he would handle the situation so [Mr P] left.
When [Mr P] got home around 12:46am, I had gotten up looking for him and he told me what happened. I called Andy’s mobile. He answered and the party noise was still evident. I told him to stop it, he apologised and told us he would sort it out.
At around 12:53am, he sent text, 1:05am we stood out the front of the house, near [Mr P’s mother’s] bedroom. We went to the back of house, they appeared to be gathering the lounge room. In the lounge room there is a surround sound system with base, they had the music very loud and we tried knocking on the door, they didn’t hear us. We entered the hose [sic] and went into lounge room, no one saw us initially. Andy was on the lounge and he saw us. Shane had remote, I took it off him, he turned around and struck me, he then apologised when he realised it was me. Everyone was swearing and we asked for the party to be shut down. Shaun got up into my Husband’s face, told him to fuck off, we have paid for this house, get out and take your wife. Tom was there and there was 5 of them around [Mr P] and he was feeling threatened. I said I'll have to call the police and someone responded call the f-ing police. I left [Mr P] in there. There is limited phone reception in the house so I had to go onto the backyard. Because it’s a regional town I don’t have much faith in the Police as they usually send from Batemans Bay and it can take a few hours. But it was manned this night. Walking through the house, the amount of alcohol empties, cake on floor, obvious that it was quiet a party. They followed us out the back of the house. Shaun appeared to be main ringleader saying, we f-ing we paid for this, get out. Tom started chanting, go home old man, old lady and had to [sic] restrained, said he was going to f-up the old man and lady. I don't know who was restraining him. Maybe Adam or someone. Shane was with him, he was aggressive. I had to ask Tom and Shane for their names. They didn’t want to give me their names, but they eventually did.
We were standing outside with Andy and Dave Grierson. David was very intoxicated, trying to reintroduce himself, he said he only arrived and that he didn’t know what [sic] going on. He message yesterday. I'll send that message through. Andy kept apologising.
A driver arrived to take girls away, one of the girls tried to stop Shane and Tom and apologised.
Andy kept apologising, appeared distressed. At no time was he disrespectful. Apparent he didn’t have authority of anyone at the party. Police arrived and they could only do a noise abatement. Said we were crazy to go into the house. [Mr P’s mother] had a pacemaker fitted a couple of weeks ago and we have a no noise policy. No noise on deck, Andy knew this. Before that evening everyone was very respectful leaving at 5:00am, [Mr P’s mother ] hadn’t heard them.
He sent us text the next morning, asking if he could do any jobs to make a mends [sic]. He took [Mr P’s mother] some chocolates. I didn’t response [sic] until later that evening and it went to voicemail. Text me asking me if we could meet on Sunday, agreed to meet at 11 am. That’s when we meet. Said I wanted to inspect the house.
. . . .
That's the best of my recollection, it was very frightening at the time. It was a pack mentality at the time going on in there.
MCR - Thank you it’s very helpful.
126.
Ms P also said that she has “another recording, it’s a voice recording”, in response to which Mr Curnow-Rose is recorded as saying: “Any phone calls or text messages, if you could please send them through, it would be much appreciated”. Ms P then added the following information:[161]
Andy told us that everyone involved have never acted like this before. I do feel their remorse is only because they are in trouble. Anyone in senior position that was there and didn’t shut it down, it’s no acceptable. I come from a corporate background. If in your investigation you find out they didn’t do the right thing, I ask that you remove them. If they weren’t part of it ok then I’m ok for them to come back.
Ms P’s email sent at 1:55 pm on 6 July 2020
127.
At 1:55 pm on 6 July 2020 Ms P sent an email to Mr Curnow-Rose attaching an audio recording to which I refer below. In her email, Ms P stated as follows (Fourth Mr/Ms P Account):[162]
The attached voice recording was made after I rang the police and we were waiting outside on the back deck for them to arrive. It took 15-20 minutes for the police to arrive. From where we stood we had a clear view of the kitchen where they had all moved to, as it opened out to the back deck. I remember Shaun [Boyle] kept coming outside to where we stood, I think I started recording after he continued entering my husband’s personal space (within cms of his face) and had to be restrained but it is a bit of a blur now. We regret engaging at all while we waited for the police. After this recording I changed to video and the video (previously sent) was recorded.
Record of interview of Mr Andrew Byrne – 12:02 pm, 6 July 2020
128.
Mr Andrew Byrne is recorded as having read out a statement he had prepared before Mr Curnow-Rose interviewed him. Mr Byrne’s statement included the following (emphasis added):[163]
When viewing/moving into the house [Ms P] (The owner) made me aware of the resident downstairs, I made her aware that I would be having a BBQ with work colleagues at some point over the next two weeks. [Ms P] informed me that if we were inside, out the front and not in the back balcony we could make ‘as much noise as we wanted’ (were the exact words used). Therefore, I believed there was an agreed rule that noise from a BBQ could be contained inside and out the front with no nuisance to the resident below. At no point in the evening was anyone on the back balcony.
The cause of the noise was the group participating in karaoke – which in my time with the business has a been a frequent activity to welcome new staff and create a team atmosphere. This had happened previously with many other staff members at the BBQ and also others that did not attend this BBQ. It is important to note that the [sic] was a very well natured evening, everyone was in good spirits and there was no negativity at all within the group at all – gathering was in control.
There were two points to note with the owners, the first of which at circa11.30ish was a conversation with myself and [Mr P] (owner) where I agreed to close the doors. I am not certain that everyone in the group was aware of this. Half the group were leaving via designated drivers taking them into town. There are no taxis, busses or any other form of transport that would enable the group to leave quickly.
Very shortly after that both [Ms P and Mr P] entered the property unannounced and forcibly removed TV remotes from two people participating in the Karaoke. Following this, there was a couple of exchanges between the group. These were along the lines of the owners insisting everyone left the house and members of the group responding by saying we had rented the house and they should not be here, and they had not been warned about the ants in the house was I think one comment made.
I convinced the owners to come with me to the front of the house to calm them down as they were very agitated and to diffuse the situation. There were some more words exchanged between both sides and the only act of aggression I saw was [Mr P] grabbing one member of the group I believe Adam. That is when myself and Dave Grierson decided to leave me to speak to owners as everyone else was inside with the doors closed. This lasted no more than 3-5 minutes. I want to be clear form [sic] my prospective [sic] there was no aggression from myself or any member of the group that I saw, from my perspective my focus was on calming the resident down that’s where I saw aggression. At this point the situation was over and had been diffused, no further noise was being made to my knowledge. [Ms P] informed me that they had contacted the Police before entering the property and I thought it best I wait for them to arrive and speak directly to them. Very shortly afterward they arrived and after liaising with the owners I spoke to them; they looked into the house briefly and spoke to the other members of the group before quickly ascertaining that the situation was clam [sic], there was no aggressive behaviour of any sort and no noise and were happy to leave us at the property with the residents still down stairs.
Since the event I have taken the responsibility of apologising to the owners both [Ms P] and [Mr P] and the resident below for the noise compliant [sic] and the subsequent argument as I had the positive relationship with them at the end of the night. The apologies had been accepted and I visited the resident downstairs and spoke with her in the morning with some chocolates and I believe that was the end of it of the matter and need no further involvement from anyone in the group.
129.
After Mr Byrne read out his statement, Mr Curnow-Rose asked him some questions, which included the following (emphasis added):[164]
MCR - At any time did a Laing O’Rourke employee have to hold back another Laing O'Rourke employee for fear of being aggressive towards the home owners?
AB – At one point Dave Grierson got everyone back.
….
MCR - Please in your words, explain the temperature/mood of the group when owners entered the home?
AB - When they came in, there was surprise, they didn’t know who the people were when they grabbed the remotes off them, next they were telling us to get out. Not much aggression, definitely aggression from [Mr P]. I didn’t see any aggression from our group from my point of view. Sole focus was on the owners.
. . . .
MCR - What were some of the comments between the people in house towards owners in that period?
AB - Comments were we have rented and paid for this place, you shouldn’t be here. Leave us alone. Didn’t warn us about the ants. I couldn’t tell you every single comment. Didn’t hear anything else - but that’s the level of comments. Maybe about us paying and they shouldn’t be here.
MCR - So to reconfirm, you did not observe any adverse aggression towards the owners?
AB - No, not that I saw. Only aggression was from the owner [Mr P] - my focus on him.
MCR - Why are you are saying he was aggressive?
AB - The way he was speaking and near the door he grabbed Adam.
MCR - Can you explain? Where did he grab him?
AB - He grabbed his arm.
MCR - Why?
AB - May have been the comment around the ants. That's when I said leave me with the owners.
MCR - So in the house, there were 7 males is that correct?
AB - At that point definitely just us.
MCR - And you had been drinking all afternoon since 4:30pm?
AB - Since 7pm.
MCR - Who was holding the remote?
AB - I'm not 100%, could have been Tom, can’t 100% say.
MCR - Again your saying there was no threatening statement made against owner?
AB - No, no, not that I heard.
. . . .
MS - Have you spoken to the owners of the property since the incident?
AB - Friday morning text her to apologise, they wanted to inspect the house, so we arranged for 11am yesterday. We spoke about it. I didn't bring up the aggression, I said I was sorry on a personal level. His mother is an older women, so the tension in [Mr P] is understandable. I spoke to them yesterday as they wanted to inspect the house. There is just myself here.
Record of interview of Ms Amy Lovell – 12:58 pm, 6 July 2020
130.
Ms Lovell is recorded as giving the following information:[165]
MCR - What did you observe leading up to your departure?
AL - Not sure about timing, but the owner guy came up asked to speak to Andy. Said can you turn the music down. So we turned the music down.
MCR - Was there anything else?
AL - That was it.
MCR - Do you how [sic] many times the owner attempted to get the music turned down
AL - Just the once, then I left after that. We turned the music down and said the goodbyes.
MCR - What was the atmosphere like after the owners asked to turn the music down?
AL - Aware he was not happy, then it was quieter.
MCR - How was everyone’s behaviour?
AL - Fine. We were standing around in the kitchen. After that decided it was late had to drive the next day so left.
MCR - Do you remember what time David Field left?
. . . .
MCR - When you left, how many people left at the house?
AL - 10
MCR - Do you know their rough names?
AL - Andy, Tom, Shane, Shaun, Adam, Jamie, other Dave, two girls, new admin staff - Lisa and Emily. I left with Tim and Nishan with Dan Zeng.
Record of interview of Ms Lisa McKeever – 3:09 pm, 6 July 2020
131.
According to the record of interview, Ms McKeever said as follows:[166]
MCR - Did you attend the BBQ?
LM - Yes
MCR - Were you there until approx. 1:00am/1:30am?
ML - About 1:00am
MCR - Did you observe an altercation/discussions?
LM - Saw the owners come up and then they left, not [sic] altercation.
MCR – Did you see the conversation
LM – It was to [sic] leave.
MCR - Can I ask who you left with?
LM - Emily Haile
MCR - Are you happy to expand on the conversation? Can I ask a few more questions?
LM - Ok
MCR - What brought about being told to leave?
LM - They came up said that everyone was to leave, not privy to the conversation, can’t give exact details.
MCR - Did you see any behaviour that was aggressive or in anger?
LM - I don’t think so. We were asked to leave so I got up and left, that was it basically.
MCR - That’s all I need to ask today. . . . .
Record of interview of Mr Shane Neely – 8:30 am, 8 July 2020
132.
Mr Shane Neely is recorded as giving the following information (emphasis added):[167]
MCR - Can you take me through your recollection of the BBQ after approximately 11pm?
SN - There was food and drink in kitchen, then karaoke in the living room, went into the sitting room to do karaoke. The owners arrived into the sitting room and aggressively grabbed remote out of Adam's hand.
MCR - Can you go over that again?
SN - During karaoke, the owners aggressively grabbed the remote out of Adam’s hand. We were shocked, didn’t know who they were at the time. Random people, I didn’t know who they were. There was a verbal argument and we told them they can’t come into house in that manger [sic] and tell us to leave. The argument lasted 5 minutes.
MCR - What happened then?
SN - Andrew Byrne took the owners outside of the house. The owner was aggressive. Once outside the verbal argument last 3 minutes. Telling them they can’t barge into the house. Can’t just barge in being aggressive. The owner grabbed Adam Neely by the tee-shirt in an aggressive manner. Andrew tried to calm down the situation with the owner.
MCR - So Andrew Byrne had owners outside in the BBQ area. Who else was outside?
SN - Andrew and the owners and the police.
MCR - Can we go back a moment to the outside on the patio, you said the owner grabbed Adam?
SN - Yes, Adam was standing tin [sic] the doorway and he grabbed him.
MCR - What was he doing?
SN - There was a verbal argument was still going once they were outside. Same thing being said over and over again.
. . . .
MCR - Going back as you said to the verbal argument, can you please outline what was said and by whom?
SN - The main argument, we felt that they couldn’t just walk in aggressively and start shouting at people. From what I recall, we said you can’t barge in, they said we can, we want everyone to leave and we can do what we want. I remember it being said over and over again.
MCR - Can you give me a sense of the atmosphere at that time?
SN - I'd say it was heated, it wasn’t aggressive. It wasn't going to turn violence [sic] or aggression [sic] or no threats being made.
MCR - Did you at any point start chanting at the owners of the house?
SN - No
MCR - Did you have direct conversation with the owner?
SN - Very little contact with the owners . . .
. . . .
MCR - Who was the main agitator from Laing O'Rourke?
SN - No main agitator. It was the owners who were aggressive? Laing O'Rourke people trying to get them out of the house. No main agitator.
MCR - Are you aware of previous request from owners to cease the party?
SN - No first time when they came in.
. . . .
MS - Can you explain some of the comments made by Laing O’Rourke employees when speaking with owners?
SN - Andrew Byrne’s was trying to calm them down and David Grierson tried to do the same. The remarks said from everyone was that they can’t barge in like that.
MS - What was the tone of language?
SN - Some curse words said at the time, but can't recall exactly.
The audio recording
133.
There is in evidence the audio recording (audio recording) Ms P took of part of the Incident.[168] It appears LOA came into the possession of the audio recording by no later than 1:55 pm on 6 July 2020. That is apparent from the email Ms P sent to Mr Curnow-Rose at that time and date, after Mr Curnow-Rose interviewed Ms P commencing at 11:30 am on 6 July 2020.[169] In her email, after thanking Mr Curnow-Rose for “your call earlier”, and noting a number of matters it is unnecessary to set out, Ms P stated as follows:
The attached voice recording was made after I rang the police and we were waiting outside on the back deck for them to arrive. It took 15-20 minutes for the police to arrive. From where we stood we had a clear view of the kitchen where they had all moved to, as it opened out to the back deck. I remember Shaun [Boyle] kept coming outside to where we stood, I think I started recording after he continued entering my husband’s personal space (within cms of his face) and had to be restrained but it is a bit of a blur now. We regret engaging at all while we waited for the police. After this recording I changed to video and the video (previously sent) was recorded.
134.
I find that the “attached voice recording” to which Ms P referred in her email is the audio recording.
135.
A transcript of the audio recording has been prepared, which I marked MFI2 as an aide memoire of what is recorded in the audio recording.[170] The transcript is inaccurate to the extent it suggests the words it records were said sequentially. In truth, parts of the audio recording record words being spoken at the same time by different people. That means that it should not be assumed that Mr P or Ms P heard everything that is recorded on the audio recording. Moreover, a number of the words the audio recording records were exchanged between persons that did not include Mr P or Ms P.
136.
The audio recording is approximately 5:06 minutes long. It begins with “AB” (Mr Andrew Byrne) telling “AN”, namely, Mr Adam Neely, to “[g]et in there now”. Mr Adam Neely states “She’s telling lies and he’s telling lies”; and DG (Mr Grierson) states: “I’ll come and grab you in a minute mate. Trust me I understand your point of view”. The recording continues as follows:[171]
0:00-0:15
. . . .
AB - These guys are a really nice couple and we have fucked this up here
0:16-00:30
AB - and I accept that and I apologise and we will be gone in the morning if we have to, that’s fine
Female - Woo good luck
[Ms P] – No they need to go now. I’m not having it. You can all get out now.
0:31-00:45
[Ms P] - The police are coming now
*Hear the door slam
Female - sorry, that's my bad
[Ms P] - This is not ok
Female l - Were going
Female 2 - We are going now
DG - Oh you’re off hey
Female - Yeah
AB - See you in the morning
Female l – Yeah
Female 2 - Yeah, alright
00:46-1:00
AB - The thing is, there is nowhere else for us to go.
[Ms P] - Well that is your problem
AB - Ok
[Ms P] – You’re still going in there, they’re still drinking, they’re still raising their voices
SB (Mr Shaun Boyle) - Yeah like what’s the problem, if ya don’t like it
1:00-1:15
DG - no no no no Shaun, Shaun, Shane, Shane
SB - No, can I just. If you’re going to rent the house
DG - Shaun, Shaun, Shaun
SB - Like what's the point. Like if
[Mr P] - We have been renting this house for two years and have had no problems
[Ms P] - Zero
SB - What’s wrong tonight then
[Ms P] - Because people are respectful
[Mr P] - You are being extremely noisy
01:16-01:30
*Inaudible
SB - We paid the 60 grand
SN - Can't have a bit of fucking noise, can we not
[Ms P] - Just don’t engage with him
SN – Can’t have a bit of a laugh like. Can we not have a crack
137.
To this point, the foreground noise, as recorded on the audio recording, is dominated by “SB”, (which I find to be a reference to Mr Shaun Boyle) and “SN” (which I find to be a reference to Mr Shane Neely) arguing with Mr and Ms P, and Mr Grierson attempting to dissuade them from doing so. In the background, and while Mr Shane Neely says “Can’t have a bit of a laugh like. Can we not have a crack”, one hears, if one directs the concentration away from what Mr Shane Neely is saying, the words: “go home you fucking silly old cunt”. I find that the voice uttering these words is that of Mr Haley. I also find, however, that it is only if the listener consciously directs attention away from the words that constitute the foreground noise that the listener can begin to detect that words are being spoken in the background at the same time as the words that constitute the foreground noise are being spoken; and that it is only with additional effort that the listener can detect that the background words are “go home you fucking silly old cunt”, and conclude that it is Mr Haley that is uttering them.
138.
The audio recording then records that, in the course of Mr Shaun Boyle saying: “Fuck, Like it’s fucking, I guess; you know what I mean, like it’s fucking, it’s”, and Mr Grierson saying “Shaun do me a favour and just go”, one hears more clearly the words “Go home old man, old lady, go home, go home, go home, go home”. I am satisfied that the voice uttering these words is also that of Mr Haley.
139.
The audio recording continues as follows (emphasis added):
01:31-01:45
(Phase 1)
. . . .
DG - Shaun do me a favour and just go
[Ms P]- And what’s that one’s name
TH - Go home
[Ms P] - What's your name?
TH - Go home
[Ms P] - What is your name?
DG - Go in the house and let me speak to the owners
TH - What's your name?
[Ms P] - My name is . . . and I’m the owner, so what’s your name?
01:46-02:00
(Phase 2)
TH - My names is Tom
[Ms P] - Tom, thank you Tom
DG - Seriously, oooi
SB - We can’t have a fucking
TH - Go home
DG - Shane, Shane, Shane
TH - Go home
DG - Guys, guys, guys, do me a favour
SB - Like how much are we paying
DG - No, no, no, do me a favour, go in the house
SB - I'm just want
DG - No, no
140.
Ms P’s question “And what’s that one’s name?” does not appear to be, and I am not satisfied that it is directed to Mr Haley; Ms P’s question appears to be directed to Mr Grierson. That may imply that Ms P did not understand that Mr Haley was saying anything to her or to Mr P. Ms P first addressed Mr Haley when she asked his name; and Mr Haley first addressed Ms P when he responded to that question; and their conversation ended when Ms P said “Tom, thank you Tom”.
141.
The audio recording then records the following (emphasis added):
02:01:02:15
(Phase 3)
[Ms P] - No stop drinking right now
DG - Please, please, please, just go in the house
SB - Ay, I'll tell you what's going to happen
DG - No, no, no
AB - Tom, Tom
SB - I’ll tell you what's going to happen, we are going to go back into the house that we paid for and play the music as loud as the fuck we like
AB - lads, lads, shut the fuck up and go inside
02:16-02:30
(Phase 4)
AN - Assholes
[Mr P] - Go for your life
DG - Will you all go in the house
?? - want another party here.
DG - oi please, wooh wooh
AB - Tom, Tom, Tom
*Inaudible - swearing
TH - I’ll fucking drink
SB - Like what are we paying for, I’m not being cheeky, like what are we paying for
DG - Tom, Tom, Tom, Tom
[Ms P] - You are paying for accommodation.
[Ms P] - Accommodation
TH - If I don't want a fucking drink. I'll have a fucking drink
02:31-02:45
(Phase 5)
[Ms P] - Accommodation
DG - Tom ,take it
[Ms P] - That is it.
SB - Yeah but we pay for
*Inaudible
?? - I'll smack him
[Ms P] - No, its’ accommodation. We don’t pay for disrespect, we don’t pay for abuse
AN - Andy, Andy, do you want a vodka??
[Ms P] - We don't pay for this noise, ok
SB - Honestly
?? – What the fuck Tom?
02:46-03:00
SB - Honestly, if you, don’t honestly settle down
AB - Shut the fuck up
SB - No, just settle down
AB - Shut up
SB - You’se will never let anyone stay here. We will honestly tell everyone on Stayz
AB?? - Shaun, Shaun, get in
SB - We’ll tell everyone on Stayz
?? - Shaun
[Ms P] - we get that opportunity as well
03:01-03:15
[Ms P] - You will never be able to book with Stayz again.
?? - What you mean you’re the victim like
[Ms P] - You understand?
?? - Sorry
[Ms P] - You will never be able took through them again
?? - Hey gang, come on
*Inaudible
03:16-03:30
*Inaudible
DG - You need to just go in, please, please guys
TH - You need to chill out
?? - Andy, ask him for his bank details
*Inaudible
*Hear the door slam
03:31-03:45
[Mr P] - You know if they’re going to be noisy ...
DG - I’m with you guys, you know what I mean
AB - I feel horrendous, cause these guys are nice people
DG - Anyway my name is David and you can put my name in the frame
03:46-04:00
DG - Wherever people feel too. I work for Laings.
I’ve come here tonight because I work with these guys and yes I’ve had a couple of beers
04:01-04:15
*Hear yelling in the background
DG - I’m not aware of anything that’s gone on so if you guys want to make me aware of what’s gone on.
[Ms P] - Well you can hear it now David. Just turn around
DG - I understand that
[Ms P] - Just turn around
04:16-04:30
*Hear door open
AD - Hey,
DG - woo, woo, woo
AN - Hey, and [Ms P]
DG - Do me a favour, woo, woo, woo
AN - You never mentioned that ants that crawling about this place either
DG - Woo woo woo, do me a favour
*Hear the door slam
DG - Anyway
04:31-04:45
AB - Yeah its hard
DG - I apologise because I don’t understand the intricacies of what the deed entails people are allowed to do.
04:46-05:00
DG - But, I'm David, and your name is?
[Mr P] - We have already meet David
DG - Well, I've only meet you cause I’ve spoken to you briefly, so your name is?
[Mr P] - I’m [Mr P]
05:01-05:06
DG – You’re [Mr P] and you’re?
[Ms P] - Not interested
142.
Mr Haley was cross-examined about whether he accepted he said “the Offensive Words”. That is the expression LOA, in its written submissions, has used to denote the words “Go home you fucking silly old cunt . . . Go home old man, old lady. Go home, go home, go home, go home”. It will be necessary to describe in some detail the evidence Mr Haley gave:
(a) After playing that part of the audio recording that included “silly old cunt”, Mr Haley was asked whether he admitted that he said “those words” “to” Mr and Ms P. Mr Haley answered “no”, but said he admitted he said those words.[172] After the relevant part of the audio recording was played again, Mr Haley said that the only words he could identify he said are “go home, go home” and “silly old cunt” in the middle.[173]
(b) Mr Haley was then asked whether “independently of what you heard on the recording, do you understand, do you admit that you said those words to [Mr and Ms P]”? Mr Haley said he did not “recall saying those words”. Mr Haley was then asked whether by the answer he had given, Mr Haley intended to say that he “might have said them”, but Mr Haley could not now recall whether he said those words, in response to which Mr Haley said: “It means I don’t remember what was said at that particular moment”.[174] Mr Haley was then asked whether the audio recording has not been able to assist Mr Haley refresh his recollection, Mr Haley said: “The recording has assisted me in recollecting the words “silly old cunt” and “go home, old man, old lady”, and that’s all”.[175]
(c) Mr Haley was asked whether he accepted he said “to” Mr and Ms P the words he accepted he could hear on the audio recording (“silly old cunt” and “go home, old man, old lady”). Mr Haley said he could not recall.[176] Mr Haley was then asked whether by his last answer Mr Haley meant that he agreed he may have said those words, but he could not now remember saying them. Mr Haley said:[177]
I don’t remember the particular point and who was there. I don’t remember what was said and why I said it. I accept that [Mr and Ms P] were two of the people there and they may have been the recipient of that, but there were also 10 other people there. There was a lot of discussion and argument, you know, mini-arguments going on, and I don’t recall the – every interaction that was going on . . .
(d) Mr Haley was asked whether Mr and Ms P “were the only persons present that night who could plausibly be described as “old man” and “old lady””. Mr Haley disagreed;[178] and, when it was put to Mr Haley that there was no one else “at the party” that he was referring to when he was saying, “old man, old lady”, Mr Haley said “[t]here could have been”.[179]
(e) Mr Haley was asked whether his evidence was that, when he said the words “go home, old man, old lady”, he was not directing those words to Mr and Ms P, Mr Haley answered he “said I may have directed them to” Mr and Ms P.[180] On its being put that was not the evidence he had given, Mr Haley said “I don’t recall”.[181]
(f) Mr Haley was asked whether he would accept that in that part of the audio recording when Ms P asked Mr Haley what was his name, and Mr Haley gave his name, that “that exchange was in direct response to the words” Mr Haley “said to” Ms P. Mr Haley responded as follows:[182]
So what I heard on the recording was the words “silly old cunt”. Then there’s a lot of noise then me saying – maybe two times, possibly more – “Go home. Go home. Go home”, and then she says, “What’s that one’s name?” So I don’t think I can draw the same conclusion as you, Mr Jedrzejczyk, that she heard it as a direct result of those words and that she heard those words, and I can’t say for certain that she did.
(g) Mr Haley was again asked whether he accepted he said “the Offensive Words” intending that they be directed to Mr and Ms P, in response to which Mr Haley said he did not recall; meaning he did not recall one way or the other.[183]
143.
A feature of this part of the cross-examination of Mr Haley is that it was based on the assumption that there was evidence that was capable of establishing that Mr and Ms P in fact heard Mr Haley utter “the Offensive Words”. That assumption is not correct. I have already noted that Ms P did not ever claim that Mr Haley said, or that she heard Mr Haley utter the words “Go home you fucking silly old cunt . . . Go home old man, old lady. Go home, go home, go home, go home”; and although it is the case that in the Third Mr/Ms P Account Ms P said Mr Haley started to chant the words “go home old man, old lady”, Ms P claimed he did so in circumstances entirely divorced from what the audio recording records. Ms P claimed “Tom started chanting, go home old man, old lady and had to [sic] restrained, said he was going to f-up the old man and lady. I don't know who was restraining him. Maybe Adam or someone”. The audio recording does not record Mr Haley stating that “he was going to f-up the old man and lady”.
144.
In its written submissions LOA submits that Mr Haley’s evidence was “evasive and confusing”.[184] The basis of the submission appears to be the contention that Mr Haley initially stated that he “admitted saying the words”, but he later qualified “that admission by saying that it was limited to the words “silly old cunt” and “go home old man, old lady” which, Mr Haley insisted, were the only words he could “hear” on the audio recording.[185] That contention does not accurately reflect Mr Haley’s evidence. As I have set out above, Mr Haley was asked whether he “admitted” saying “to” Mr and Ms P “those words”. “Those words” were a reference to “silly old cunt”, being the words Mr Haley, in his previous answer, accepted he said (although not “to” Mr and Ms P). It was in response to the question whether Mr Haley admitted saying “those words” “to” Mr and Ms P, that Mr Haley answered “no”, but admitted saying them. Mr Haley was not asked whether he said “the Offensive Words” (namely, “go home you silly old cunt” and “go home old man, old lady. Go home, go home, go home, go home”), in response to which he admitted stating these words, but then “qualified that admission by saying it was limited to the words “silly old cunt” and “go home old man, old lady””. I therefore do not accept LOA’s submission that Mr Haley’s evidence on this point was “evasive or confusing”. Mr Haley was clear in his evidence – he accepted he said the words “silly old cunt” and “go home, old man, old lady”, but he did not recall saying those words or saying those words “to” Mr and Ms P.
145.
LOA next submits I should reject Mr Haley’s evidence that he did not have an independent recollection of saying “the Offensive Words”.[186] LOA relies on two matters. The first is the contents of the audio recording itself. That by itself is no basis for rejecting Mr Haley’s evidence that he does not recall saying “the Offensive Words”. Documents or audio recordings (or any other record) recording statements made by a person in the past that are brought to the attention of the person who made the statements may, but do not necessarily, operate to revive the maker’s memory of having made the statement recorded in the document or audio recording, or of the facts or other matters asserted by the statements recorded in the documents or audio recording. That a document recording a witness’s recollection of events may or may not generate the revival of an actual recollection of the events recorded is a matter the common law has long recognised.[187] The Evidence Act also recognises the distinction.[188]
146.
The second matter on which LOA relies for submitting I should reject Mr Haley’s evidence that he does not recall saying “the Offensive Words” is the detailed memory Mr Haley has of the events that occurred during the Incident.[189] The submission appears to be that, given the detailed recollection Mr Haley has manifested of events that occurred during the Incident, it ought to be inferred that Mr Haley also has an actual recollection of having stated “the Offensive Words”, but he has wilfully withheld his actual recollection in his evidence. I do not accept that submission. The events Mr Haley says he recollected are inherently more memorable than “the Offensive Words”. The events were quite shocking, both in their suddenness, and in their quality. According to the account Mr Haley gave to Mr Curnow-Rose (which was corroborated by the accounts the other employees gave to Mr Curnow-Rose), a person (Mr P) barged past Mr Haley knocking him to the side with his arm; Mr P was manifesting anger; Ms P grabbed the remote from another LOA employee; and there was a heated verbal exchange between one group stating to the intruder that he had no right to be in the Pambula Property, and Mr P stating it was his house, he could do whatever he liked, and he would throw everyone out. On the other hand, the Offensive Words were stated after Mr Andrew Byrne managed to convince Mr P to go outside which he did; in other words, after the confrontation that had occurred inside the Pambula Property had ended.
147.
Given these matters, I am not prepared to find that Mr Haley was false in his evidence that he does not have a recollection of saying “the Offensive Words”. On the contrary, I accept Mr Haley’s evidence that he has no independent recollection of uttering “the Offensive Words”.[190] Let it be assumed, however, that, contrary to my finding, Mr Haley does have a present recollection of having uttered “the Offensive Words”. What follows? Presumably LOA would submit that his present recollection of uttering “the Offensive Words” would be an admission on the basis of which it would be open to find that Mr Haley not only uttered “the Offensive Words” “to” Mr and Ms P, but that Mr and Ms P heard Mr Haley utter those words. I would not accept such submission, however, for the reasons I give below for not accepting LOA’s submission that Mr Haley’s refusal to accept in cross-examination that Mr and Ms P “heard the words that he said to them” is “contradicted by the contemporaneous evidence”.
148.
LOA also submits that “[r]emarkably, Mr Haley also stated in cross-examination that he could not recall whether he said the Offensive Words . . . to [Mr and Ms P]”.[191] Given I am not satisfied Mr Haley was false in his evidence that he does not have a recollection of saying “the Offensive Words”, and that I have accepted that Mr Haley does not have an independent recollection of uttering “the Offensive Words”, I do not accept as remarkable Mr Haley’s evidence that he does not recall whether he said “the Offensive Words” “to” Mr and Ms P. Quite apart from this, the audio recording suggests that Ms P perceived that Mr Haley was not directing to her or to Mr P his chanting “go home old man, old lady, go home, go home, go home, go home”. When she first noticed Mr Haley chanting, Ms P asked “And what’s that one’s name?” That question was not directed to Mr Haley, but appears to have been directed to Mr Grierson. Ms P first addressed Mr Haley when she asked Mr Haley his name twice; and Mr Haley first addressed Ms P when he responded to the second time she asked that question; and it is at that time that Ms P and Mr Haley engaged in what can reasonably be characterised as a “conversation”, although a very short conversation.
149.
It is the case that Mr Haley’s evidence that there could have been some person, other than Mr and Ms P, to whom he directed the words “old man, old lady”, lacks credibility. But the answer Mr Haley gave was to a question calling for his opinion or speculation about whether words he says he did not recall saying could only have been directed to Mr and Ms P. Mr Haley’s opinions on that question are irrelevant, it being a matter for me to determine, to the extent it is relevant, whether “the Offensive Words” were directed to Mr and Ms P. In any event, I am not prepared to infer from Mr Haley’s incredible opinion or speculation that it could have been some person, other than Mr and Ms P, to whom he directed the words “old man, old lady”, that Mr Haley is not a witness of credit. As I have already noted, Mr Haley’s account of the events that occurred during the Incident is to a significant degree corroborated by the accounts given by other employees.
150.
LOA also submits that Mr Haley’s refusal to accept in cross-examination that Mr and Ms P “heard the words that he said to them” is “contradicted by the contemporaneous evidence in two key respects”.[192] LOA identifies two items of “contradictory evidence”. The first is the audio recording that shows Ms P asking Mr Haley for his name “immediately after Mr Haley said the Offensive Words”. LOA submits this “was plainly a reaction to what [Ms P] had just heard”.[193] The second item of evidence is the Third Mr/Ms P Account, that is, the record of interview of Ms P of 6 July 2020 recording that Ms P said that Mr Haley “started chanting, go home old man, old lady”.[194] Neither of these items of evidence constitutes a contradiction of the proposition Mr Haley refused to accept, namely, that Mr and Ms P heard “the Offensive Words”. In truth, what LOA submits constitutes a contradiction of the proposition is an inference LOA submits I should draw from the two items of evidence on which LOA relies, that Mr and Ms P heard “the Offensive Words”. I am not prepared to draw such inference.
151.
First, if Ms P or Mr P had heard Mr Haley say “go home you fucking silly old cunt” in addition to Mr Haley chanting “go home old man, old lady”, it is reasonable to expect they would have told Mr Curnow-Rose, particularly given that the words “fucking silly old cunt” come after the words “go home”. That Mr Curnow-Rose did not record Ms P or Mr P as having stated that Mr Haley said “go home you fucking silly old cunt” is a basis for inferring that neither Mr P nor Ms P heard Mr Haley say “go home you fucking silly old cunt”. Second, Ms P’s having been recorded as stating that Mr Haley “started chanting” indicates that she considered the words Mr Haley started to chant, namely, “go home old man, old lady”, to be distinct utterances, separate from “Go home you fucking silly old cunt” which forms part of “the Offensive Words”.
152.
Third, it is misleading to represent “the Offensive Words”, as recorded by the audio recording, in the manner LOA represents “the Offensive Words” in its written submissions. LOA represents the words as follows:[195]
Mr Haley: Go home you fucking silly old cunt . . . Go home old man, old lady. Go home, go home, go home, go home. [These being what LOA in its submissions designates as “the Offensive Words”]
[Ms P]: And what’s that one’s name?
Mr Haley: Go home
[Ms P]: What’s your name?
Mr Haley: Go home.
[Ms P]: What is your name?
Mr Haley: What’s your name?
[Ms P]: My name is [Ms P] and I’m the owner, so what’s your name?
Mr Haley: My name is Tom.
[Ms P]: Tom. Thank you, Tom.
153.
This representation is misleading in the following ways:
(a) The representation omits the words “Can’t have a bit of a laugh like. Can we not have a crack” that Mr Shane Neely spoke. As I observed earlier in these reasons, Mr Shane Neely spoke these words at the same time as one can detect, with effort, that in the background a person, namely Mr Haley, said “go home you fucking silly old cunt”.
(b) The representation omits what I have also observed earlier in these reasons, namely, that at the time one, with effort, can detect Mr Haley stating “go home you fucking silly old cunt”, the foreground noise of the audio recording is dominated by Mr Shaun Boyle and Mr Shane Neely arguing with Ms and Mr P, and Mr Grierson attempting to dissuade them from doing so.
(c) “The Offensive Words” omit between the words “silly old cunt” and “Go home old man” the words spoken by Mr Shaun Boyle, namely, “Fuck, Like its fucking, I guess”.
(d) The representation omits to include after “the Offensive Words” and before Ms P asked “And what’s that one’s name?” Mr Shaun Boyle’s saying: “Fuck. Like it’s fucking, I guess; You know what I mean, like it’s fucking , it’s”, and Mr Grierson’s saying: “Shaun, do me a favour and just go”, and that in the course of these words being said one can hear more clearly, again in the background, a person, namely, Mr Haley, saying the words: “Go home old man, old lady, go home, go home, go home, go home”.
(e) The representation omits to convey that the words “Go home old man, old lady, go home, go home, go home, go home”, as recorded in the audio recording, were materially louder, and more distinct to the ear, than the words “go home you fucking silly old cunt”.
154.
Fourth, there is no evidence that Mr Curnow-Rose or any other person asked Ms P or Mr P any questions with a view to eliciting from either of them any memory that, in addition to Mr Haley starting to chant “go home old man, old lady”, Mr Haley said “go home you fucking silly old cunt”; LOA has not called Ms P or Mr P to give evidence about what they heard Mr Haley say; and LOA has given no evidence to explain LOA’s not calling or not attempting to call Mr P or Ms P.
155.
Fifth, as I show later, neither in the First Purported Investigation Report nor in the Second Purported Investigation Report is it recorded or otherwise expressly or impliedly stated that Mr or Ms P complained or alleged that Mr Haley said to them or to anyone the words “go home you fucking silly old cunt”; nor do these reports record that Mr or Ms P claimed or alleged that Mr Haley said “go home old man, old lady”. If, as LOA submits, LOA was aware of “contemporaneous evidence” that contradicted the proposition that Mr and Ms P did not hear Mr Haley utter “the Offensive Words”, it is reasonable to expect that both the First Purported Investigation Report and the Second Purported Investigation Report would have: recorded that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”; identified the “contemporaneous evidence” which supported such allegation; and made a finding that that allegation was “substantiated”. That, however, is not the case. Neither the First Purported Investigation Report nor the Second Purported Investigation Report records that Mr or Ms P alleged Mr Haley uttered “the Offensive Words”.
Record of interview of Mr Haley – 9:46 am, 8 July 2020
156.
Near the beginning of the interview, Mr Curnow-Rose has recorded that the purpose of the meeting was that “[w]e are going to go through your statement and more ask [sic] pointed questions”. Mr Curnow-Rose is also recorded as stating his role is that of the “lead investigator, not the decision maker”; and that “[w]e will be collating information to supply to decision makers Dane Bates and Helen Fraser and they pass on further”.[196] Mr Curnow-Rose’s reference to “your statement” is a reference to a document Mr Haley had prepared, being a document titled “02 July 2020 – Investigation – Statement of Events” (Haley Statement),[197] which Mr Haley read at the interview.[198] The Haley Statement included the following account of the Incident (emphasis added):
I arrived at the property in Pambula on Thursday early evening (02 July 2020). . . . . I entered the split level property from the rear and assumed the building was all one residence; there was nothing to suggest otherwise . . . . I was not aware, until after the incidents occurred, that the property was actually split in to two residences (one upstairs and one downstairs) and neither was it apparent.
. . . .
The evening was coming to an end around midnight and the process of shutting down the event commenced. I discovered there were no taxis in that location, something that had not occurred to me earlier; during previous visits to Batemans Bay this was never an issue. Nisham was designated driver and was taking the attendees in groups of four due to the person limit in the car. These are 25-30 minute round trips to the accommodation in Merimbula.
The mood of the night changed significantly at around 12:30 when an Intruder, who was completely unknown to me, entered the property. I was stood at the head of the sofa when the man came up from behind me on my left, barged past me, knocking me to the side with his arm. I was stunned and in shock. I had no idea who the individual was and my initial concern was that he was a random attacker who was there to cause harm; I did worry that he may be carrying a weapon. He was red in the face and very angry. The man wasn’t fully coherent and his behaviour seemed very erratic; I couldn’t believe what was happening. Fearful of being attacked again, I stepped back out of arms reach.
The man proceeded towards Adam Neely, who was sat on the sofa end near to where I was stood, and grabbed the remote from Adam’s hand . There was a verbal exchange between the two and it became apparent to me that the two individuals knew each other. There was a commotion with the group who were saying things like he had no right to be in the property and should leave. The man was very angry making statements like it was his house, he could do what he wants and he would throw us all out. At this point I realised that he might be the owner. He was very aggressive towards the group and his behaviour and demeanour were intimidating.
I was at the back of the commotion and only saw the intruder. I didn’t notice anyone with the intruder and at no point did I come in to contact with the intruder’s wife, who has jointly made the complaint, to the extent that I could not even tell you what she looks like. I remained close by as I was concerned the man would attack someone in the group but far enough away that I couldn’t be attacked; something I did fear could happen. From my part, I contributed to the commotion by saying things like you are out of order and you need to leave. I felt it was necessary to speak up for myself and others in the group, who I believed were in danger. I was still a bit startled and in disbelief at what was happening.
Andy managed to convince the intruder to go outside in an attempt to calm him down. I didn’t feel it was necessary to go outside so I remained inside and was at least 15-20 yards from the intruder, with the bi-fold doors also providing a physical barrier. There was further commotion outside between the group and the intruder. I am unsure what was said and what happened due to being inside. I approached the door to see what was happening and Dave Grierson shepherded me back inside. Dave closed the door and asked me to leave Andy to calm down the intruder.
. . . .
It was also raised in the discussion that Adam Neely had been grabbed by the intruder in the commotion outside. I did not witness this event.
Andy returned inside the property and advised that the police had been called and were on their way. I continued to remain inside the property until the police arrived. The police arrived and spoke to Andy Byrne outside. The police officers took no action, and did not even speak to me. . . . .
Following the events on 02 July 2020, my wife (Shaunna Haley) noticed a bruise on the left side of my lower back (picture evidence will be provided). These physical injuries were caused by the Intruder’s elbow and arm when he barged past me during the prior mentioned incident. I am appalled to have received these physical injuries, which were completely unjustified, and feel I have been violated.
157.
Mr Haley concluded the Haley Statement as follows:
In conclusion, I completely refute the allegations of aggressive, intimidating, deplorable and inconsiderate behaviour on the following basis:
• I was not aware of the second residential property and that there was another resident within the building until after the incident had occurred;
•
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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