Harrison v P & T Tube Mills Pty Ltd

[2009] FCA 220

FEDERAL COURT OF AUSTRALIA

Harrison v P & T Tube Mills Proprietary Limited [2009] FCA 220

EMPLOYMENT LAW – alleged breaches of s 792 of the Workplace Relations Act 1996 (Cth) – whether disciplinary process imposed for a prohibited reason or reasons

EMPLOYMENT LAW – whether lawful and reasonable direction by employer – whether employee obliged to comply with direction

CONTRACTS - whether breach of employment contract – summary dismissal – distinction between breach and repudiation – whether contract repudiated

Workplace Relations Act 1996 (Cth) ss 779, 792, 793, 807, 809
Conciliation and Arbitration Act 1904 (Cth) ss 5, 9
Evidence Act 1995 (Cth) Part 4.2

Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 explained
Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173 explained
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 233 followed
The King v Darling Island Stevedoring and Lighterage Company Limited; ex parte Halliday and Sullivan (1938) 60 CLR 601 followed
Australian Telecommunications Commission v Hart (1982) 43 ALR 165 followed
Boychuk v KJ Symonds Holdings Ltd [1977] IRLR 396 cited
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 explained
Greater Dandenong City Council v Australian Municipal and Clerical Services Union (2001) 184 ALR 641 cited
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 cited
Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352 cited
The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 cited
Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 considered
Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 discussed
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 considered
Scharmann v APIA Club Ltd (1983) 6 IR 157 considered
Adami v Maison De Luxe Limited (1924) 35 CLR 143 considered
Bruce v A W B Ltd (2000) 100 IR 129 discussed
D.T.R. Nominees Proprietary Limited v Mona Homes Proprietary Limited and Another (1976-1977) 138 CLR 423 discussed

Harvey R, Industrial Relations and Employment Law (Butterworths, 1982)
Freedland M, The Contract of Employment (Clarendon Press, 1976)

SHANE JOSEPH HARRISON and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v P & T TUBE MILLS PROPRIETARY LIMITED

QUD 100 of 2008

DOWSETT J
17 MARCH 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 100 of 2008

BETWEEN:

SHANE JOSEPH HARRISON
First Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Second Applicant

AND: P & T TUBE MILLS PROPRIETARY LIMITED
Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	17 MARCH 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the application be dismissed; and

2.any party requiring further findings of fact to apply within seven days of the publication of these reasons.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 100 of 2008

BETWEEN:

SHANE JOSEPH HARRISON
First Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Second Applicant

AND: P & T TUBE MILLS PROPRIETARY LIMITED
Respondent

JUDGE:	DOWSETT J
DATE:	17 MARCH 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

1. The respondent (“One Steel”), was previously known as Smorgan Steel Tube Mills Pty Ltd.  One Steel operates a tube-making factory at Acacia Ridge.  I will refer to that factory as “Acacia Ridge”.  The first applicant (“Mr Harrison”) worked as a machine operator at Acacia Ridge for some years prior to 6 May 2008.  

2. From 18 February 2002 until 6 April 2003 Mr Harrison was employed by Palmer Tube Mills (Aust) Pty Ltd.  From 7 April 2003 until 24 September 2003, he was employed by The ANI Corporation Ltd, trading as Smorgan Steelmark Metals.  From 30 September 2003 until 6 May 2008 he was employed by One Steel.  Despite the missing days, the case has been conducted on the basis that he was continuously employed from 18 February 2003 until 6 May 2008.  Mr Harrison was employed pursuant to the Metal Engineering and Associated Industries Award 1998 (the “award”).

3. At some time prior to 8 June 2007 Mr Harrison became a member of the second applicant (the “union”). His application form was dated 25 May 2005. In his affidavit filed on 25 June 2008, Mr Loggie wrongly said that it was dated 25 June 2008. On 8 June 2007 Mr Harrison was elected as a workplace delegate of the union at Acacia Ridge and subsequently appointed to that position. Mr Harrison was the first delegate of the union at Acacia Ridge. As at 12 February 2007 the union had four financial members employed there. By 20 June 2008 membership had increased to 25. The union and One Steel were parties to the award which was an industrial instrument for the purposes of s 779 of the Workplace Relations Act 1996 (Cth) (the “Act”).

4. On either 1 or 2 May 2008 Mr Harrison was stood down from work until 10.00 am on Tuesday 6 May 2008, allegedly for reason of his conduct. Mr Harrison said that this event occurred on 1 May 2008, but the evidence otherwise suggests that it occurred on 2 May 2008. I will proceed on that basis. The discrepancy is of no consequence. On 6 May 2008 Mr Harrison’s employment was terminated. In these proceedings the applicants allege that One Steel contravened s 792(1)(a) of the Act for a reason set out in s 793(1)(a). Those sections provided relevantly as follows:

   Sect 792

   (1)An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

   (a)dismiss an employee;

   (b)injure an employee in his or her employment;

   (c)alter the position of an employee to the employee’s prejudice;

   …

   Sect 793

   (1)Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

   (a)is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association;

   …

   (o)as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

   (i)lawful; and

   (ii)within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; or

   …

5. Sections 792 and 793 are in Part 16 Division 4 of the Act. Section 807 (also in Part 16) provides:

   Penalties etc. for contravention of civil remedy provisions

   (1)The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part:

   (a)an order imposing a pecuniary penalty on the defendant;

   (b)an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;

   (c)any other order that the Court considers appropriate.

   (2)The maximum pecuniary penalty under paragraph (1)(a) is 300 penalty units if the defendant is a body corporate and otherwise 60 penalty units.

   (3)The orders that may be made under paragraph (1)(c) include:

   (a)injunctions; and

   (b)any other orders that the Court considers necessary to stop the conduct or remedy its effects.

   (4)Each of the following is an eligible person for the purposes of this section:

   (a)a workplace inspector;

   (b)a person affected by the contravention;

   (c)a person prescribed by the regulations for the purposes of this paragraph.

   (5)A regulation prescribing persons for the purposes of paragraph (4)(c) may provide that a person is prescribed only in relation to circumstances specified in the regulation.

6. Section 809 provides:

   Proof not required of the reason for, or the intention of, conduct

   (1)      If:

   (a)in an application under section 807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

   (b)for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

   it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.

   (2)This section does not apply in relation to the granting of an interim injunction.

7. The applicants also assert that Mr Harrison’s termination was in breach of the terms of his contract of employment. 

   EVIDENCE – ONE STEEL

8. Given the provisions of s 809(1), it will be convenient if I commence with a summary of One Steel’s evidence. The relevant events, and the background to them, are primarily dealt with in the affidavits of Mr Hasemann and Mr Allard.

   Mr Hasemann

9. Graham Hasemann was the Operations Supervisor at Acacia Ridge.  He supervised the operation of all four mills at that site.  A mill is a manufacturing line for tubular steel products.  He supervised 114 staff members over three shifts.  Employees’ work was heavy and could be both demanding and dangerous.  As a result One Steel had strict safety policies and procedures.  There were two mills in each of two bays on the shop floor.  The mills were operated by three operations crews on each shift.  Each shift had about 37 operators.  There were also maintenance and trades people on the floor and, from time to time, administrative staff.  Mr Hasemann was a member of the Electrical Trades Union from 1986 to 1995.  He said that he accepted that unions had a role to play on site and claimed to have been more than willing to deal with the union in his role as Operations Supervisor. 

10. One Steel communicated with its employees in numerous ways.  There were monthly meetings of the Staff Advisory Board on which there were elected employee representatives.  There were also tool box meetings once every three weeks.  Shift supervisors held pre-shift meetings with crews before the start of each shift.  Issues such as safety were discussed.  There were also notice boards.  A television set in the lunch-room screened general announcements.  Major changes on site were implemented only after consultation with staff. 

11. Early in 2007 Mr Harrison became active in union affairs.  At some stage in that year Mr Harrison and two other employees, Mr Butler and Mr Wharton, commenced to wear AMWU stickers on their helmets, to distribute AMWU stickers and pamphlets in the lunch-room and to place AMWU stickers about the site.  Stickers appeared on cups and notice boards in the lunch-room, on toilets and in the locker rooms.  On a few occasions pamphlets were distributed at the front gate.  On one occasion they held a sausage sizzle.  The three men frequently spoke to employees about the benefits of joining the union.  This occurred in the lunch-room and, whilst employees were working, in the maintenance and mill areas.  Mr Hasemann stopped the practice of speaking to employees whilst they were working.  He had received complaints from “quite a few employees on site” to the effect that Mr Harrison was heavy-handed in his methods of promoting the union.  The complaints had a common thread.  Such employees considered that Mr Harrison had gone about things in the wrong way.  They felt “bombarded” by his campaign of union propaganda, and that there was too much of it in the lunch-room and around the site.  Three people who complained were Ray Tavita, Rob Lawson and Steve Booth. 

12. In May 2007 about 20 employees started wearing “Say No” stickers on their helmets.  They included Graham McDonald, Richard Murphy and Ray Tavita.  Mr Harrison complained about the “Say No” stickers, asking that they be removed.  Other evidence suggests that he thought that the stickers demonstrated opposition to the union.  Mr Hasemann said to Mr Harrison, “Shane they could be saying ‘no’ to anything”.  He also said, “It’s a two-way road mate, you have your stickers, they have theirs, they’re harmless”.  He also invited Mr Harrison to raise the matter at the Staff Advisory Board meeting.  On another occasion Mr Harrison said that he considered that the “Say No” stickers on helmets raised a safety issue.  He suggested that the glue might attack the plastic of the helmets.  Again he was told to raise the matter at the Staff Advisory Board meeting. 

13. On 1 June 2007 Mr Hasemann learned that Mr Tavita had made an oral complaint to Ms Rankin, contact officer for discrimination and bullying complaints, concerning harassment by Mr Harrison.  Mr Tavita subsequently told Mr Hasemann and Ms Rankin that “Shane had walked in, looked at the ‘Say No’ sticker on Ray’s helmet; and then (after a short exchange of words) said twice: ‘I’m going to fuck you up the arse’.”  Mr Hasemann spoke to three other employees who had been identified as witnesses, Philip Nipress, Michael Wilson and Solomon Tauo.  He told Mr Harrison that he expected him to apologize to Mr Tavita.  He told both men that he wanted them to work professionally together despite their differences.  On one or two occasions Mr Harrison complained that Mr Tavita was favoured by Steven Booth.  He regularly complained that the wrong people were promoted at Acacia Ridge and expressed vocal opinions about nepotism.  Mr Booth is related to one of the managers. 

14. On 1 June 2007 Mr Warren Vine complained to Mr Hasemann that Mr Harrison had harassed him whilst he was oxy-cutting.  He had talked about joining the union and the benefits of so doing.  Mr Vine said that Mr Harrison would not listen when he said that he was not interested.  He eventually told him to “Piss Off” and walked away.  Mr Vine said he was sick of seeing Mr Harrison’s union propaganda, and that there was so much of it about the site that it had become ridiculous.  Mr Vine swore an affidavit in this matter but, in the end, it was not read.  I therefore proceed upon the basis that he made a complaint to Mr Hasemann, but I make no finding as to its content or factual correctness.  On 4 June 2007 Mr Hasemann and Mr Newbegin (from One Steel management) met with Mr Harrison, Mr Newbegin and Mr Antal to discuss complaints about Mr Harrison visiting workers on the floor and distributing union propaganda.  Mr Antal seems to have been a friend or ally of Mr Harrison.  He frequently accompanied him to meetings with management.  Mr Hasemann told Mr Harrison that he was not to be on the shop floor unless he was working a shift.  Otherwise he was to respect the fact that employees had jobs to do and were not to be distracted.  There were good safety reasons why people should not be distracted in the mill and maintenance areas. 

15. On 5 June 2007 there was another meeting between Mr Patterson, Mr Allard, Mr McGuire, Mr Antal, Mr Harrison and Mr Hasemann.  All but Messrs Harrison and Antal were supervising or managerial staff members.  Mr Hasemann said that he had suggested the meeting because he understood that Mr Harrison was telling employees that management did not listen enough and did not do enough.  He wanted to give Mr Harrison an opportunity to air any concerns. 

16. On 26 June 2007 there was a meeting of the Staff Advisory Board at which Mr Harrison demanded that the “Say No” stickers be removed.  Two other employee representatives complained about Mr Harrison’s conduct.  The meeting became heated.  After the meeting Mr Hasemann discussed the question of stickers with Mr Patterson, One Steel’s Executive Manager – Operations.  They agreed that there was too much tension on the site concerning stickers, and that the only solution was to ban all stickers on helmets (where they seemed to be most prominently displayed).  Mr Patterson and Mr Hasemann addressed all crews on the site, informing them that stickers on helmets were banned and were to be removed.  Many men had worn stickers other than “Say No” or AMWU stickers.  There was substantial compliance with the direction.  Shortly after the direction Mr Harrison complained to Mr Hasemann that Mr Tavita still had a sticker on his helmet.  Mr Hasemann’s recollection is that it was a “Say No” sticker.  Mr Hasemann spoke to Mr Tavita’s supervisor.  The sticker was removed. 

17. On 12 July 2007 Mr Patterson gave a presentation to staff in the training room concerning a proposed merger of the employer with another company.  Other evidence suggests that some employees had expressed concern that the merger might lead to their being forced to join the union.  Mr Patterson said that being in a union was like a religion and sport.  It was the right of the individual to decide and keep their opinions to themselves.  Over the next few weeks some of the men started wearing stickers on their ear muffs.  They said that the earlier direction related only to helmets.  Mr Hasemann then issued a direction banning stickers on ear muffs. 

18. In the lead up to the federal election in November 2007 an increasing number of stickers and other union material appeared in the lunch-room.  There was union literature on every table and union posters on the wall and on the notice board.  A number of people complained about the quantity of such material.  Those complaining included Warren Vine, Rob Lawson and Steve Booth.  Mr Vine was particularly vocal and made derogatory remarks, apparently about Mr Harrison. 

19. On 29 October 2007 Mr Hasemann learned that Mr Harrison had made a complaint concerning Mr Tavita.  In effect, it was that Mr Harrison had asked Mr Tavita not to swear in the lunch-room.  Mr Tavita had then allegedly threatened Mr Harrison on two occasions.  Mr Hasemann and Mr Croxford interviewed the relevant witnesses, including Mr Harrison, Mr Tavita, Rob Lawson, Craig Frahm, Steven Booth and Ray Whalley.  Subsequently, Mr Hasemann spoke to Mr Allard.  They agreed that there had been childish behaviour by both men, and that they had probably contributed equally to the incident, given their history of conflict.  Mr Allard decided to give both men final written warnings.  On the same day Mr Harrison contacted Ms Rankin, handing her a written complaint of harassment against Mr Tavita arising out of the incident.  Ms Rankin gave the complaint to Mr Hasemann.  Later that afternoon Mr Hasemann was in the lunch-room talking to Mr Harrison and heard a few men swearing. Mr Harrison did not complain about the language. 

20. On 1 November 2007 Mr Harrison advised Mr Hasemann by telephone that he was ill and not coming to work.  He said that he had a medical certificate for “work stress”, excusing him from work until 6 November.  He claimed that his condition was related to the incident with Mr Tavita.  He was absent from work until about 16 December 2007.  The medical certificate stated that his stress was due to “bullying by his ‘2IC’ ”.  Mr Tavita was not Mr Harrison’s “2IC”.  He was the leader of a different team, having no supervisory authority over Mr Harrison. 

21. On 9 November 2007 Mr Croxford, Mr Allard and Mr Hasemann met with Mr Tavita to give him his final written warning for unacceptable workplace behaviour.  Mr Hasemann told him that both he and Mr Harrison had behaved childishly, and that this was unacceptable.  Mr Tavita said that he would change his behaviour and signed the record of interview.  His behaviour had subsequently been exemplary.  At about that time One Steel proposed to give employees a bottle of wine or spirits.  On 16 November 2007 Mr Hasemann rang Mr Harrison at home to ask him about his choice of liquor.  His wife said that he drank rum. 

1. On 28 November 2007 there was a meeting in Mr Allard’s office, attended by Mr McGuire, Mr Croxford, Mr Harrison, Mr Antal and Mr Hasemann.  The purpose of the meeting was to give Mr Harrison his final written warning for unacceptable workplace behaviour.  He was told that the substance of his complaint had not been substantiated, that both he and Mr Tavita had behaved childishly, and that this was unacceptable.  Mr Harrison refused to sign the “record of interview”.  That afternoon, Mr Croxford spoke to Mr Bradley from the union.  As a result the final written warning was amended by removing any reference to childish behaviour.  A copy of the amended final written warning was later faxed to the union.  The union notified the Australian Industrial Relations Commission (the “AIRC”) of a dispute.  On 20 December 2007 a conciliation conference was held in the AIRC.  At the conference Mr Hasemann raised other aspects of Mr Harrison’s behaviour which had not formed part of the final written warning.  They included ignoring directions as to the parking of his motor cycle, continually putting his cap on mugs in the lunch-room or inside the refrigerator and chanting union slogans in the lunch-room or on the shop floor in a manner that other employees found annoying.  It was agreed that there would be a further meeting in the new year to discuss Mr Harrison’s behaviour. 

2. On or about 24 January 2008 Mr Newbegin, Mr Allard, Mr Harrison, Mr Bradley and Mr Hasemann met on site to discuss the issues raised at the conciliation conference on 20 December 2007.  Mr Harrison agreed to stop putting his cap on the mug rack in the lunch-room or in the lunch-room refrigerator, to stop singing “loud” union chants in the lunch-room or on the shop floor and to stop parking his motor cycle in the shift workers’ car park.  Mr Allard and Mr Hasemann agreed to look into the possibility of providing Mr Harrison with a notice board in the lunch-room.

3. In late 2007 or early 2008 Mr Harrison, Mr Butler and Mr Wharton started wearing AMWU stickers on their clothes.  On a few occasions they did not remove them before putting them into the site washing machine.  The stickers clogged the washing machine.  Mr Hasemann had to unclog it.  He raised the matter in tool box meetings, asking that stickers be removed from shirts before they were put in the wash.  On one occasion Mr Hasemann asked Mr Harrison why he was wearing stickers on his shirt.  He said words to the effect that, “Well, you know, you can’t wear them on your helmet”.  At around this time stickers on lockers started to be a problem.  Some lockers were plastered with stickers.  Complaints became more frequent.  It seemed that stickers had become a real point of contention amongst the staff.  Mr Wharton complained several times that stickers were being taken off other lockers and put on his.  Mr Harrison also complained that stickers which he had placed around the site, and material which he had placed around the lunch-room, were missing.  He said that this was stealing.  He wanted Mr Hasemann to dismiss the person responsible.  On one occasion he said that he thought Mr Tavita was responsible.  He had no proof.  Mr Harrison made similar complaints at a tool box meeting and at a pre-shift meeting. 

4. In January and February 2008 Mr Patterson called a series of staff meetings involving all crews.  Mr Hasemann was present at all meetings.  Mr Patterson and Mr Hasemann gave a ten or fifteen minute presentation, asking staff to respect each other’s property, not to put stickers on other people’s lockers and not to remove other people’s stickers.  Mr Patterson said words to the effect of, “Guys, I do not care if you are in the union or not in the union.  I treat it the same as religion or sport.  You should keep your opinions to yourself.  We are here about making tube and keeping the harmony.”  A few months later Mr Hasemann had to address the crew again on the same issue.

5. In or about March 2008 Mr Hasemann saw Mr Wharton carrying a very large union sign upstairs.  Mr Wharton asked if it could be hung in the lunch-room.  This may not have been a serious suggestion.  Mr Hasemann said, “I doubt it very much.  You’d probably have to ask Jason [Mr Allard].”  He next saw the sign in a supervisor’s office. 

6. In or around February or March 2008 a meeting was held in Mr Allard’s office to discuss with Mr Harrison and Mr Wharton their proposal to put AMWU signs on notice boards.  As a result of the meeting permission was refused for the hanging of large AMWU notice boards and signs, including a sign at the gate saying “AMWU Site”.  However One Steel agreed to erect an additional cork board in the lunch-room for Mr Harrison’s use. 

7. In or about April 2008 Mr Hasemann heard that Mr Harrison was telling employees on the shop floor that One Steel was going to adopt an eight hour shift roster.  Mr Hasemann received numerous enquiries about the matter.  He was unaware of any such proposal.  One employee said that he had joined the union because of the threat.  Mr Hasemann inquired of various persons as to the source of the rumour and was told by two men that they had heard it from Mr Harrison who said he had got it from “high authority”.  Mr Hasemann was concerned that the matter was upsetting both employees and their families and so spoke to Mr Harrison on 15 April 2008.  Mr Harrison attended the meeting with Mr Antal.  Mr McGuire was also present.  Mr Harrison said that he had heard a rumour about the matter.  Mr Hasemann said that two people had alleged that he had told them about it.  In the course of the interview Mr Hasemann formed the view that Mr Harrison was yawning in an exaggerated manner.  He terminated the meeting and Mr Harrison said, “I’ll just write in my diary, ‘Graham is exiting the room during an interview’ ”.  Mr Hasemann then called a meeting of the three crews and said that he was distressed and disappointed about the rumour.  He said that no change to the roster was planned. 

8. By later April 2008 stickers were still creating friction amongst employees.  In particular Mr Hasemann received complaints from Robert Moreton, Matty Parr, Chris Durham and James Patterson.  At a supervisors’ meeting on 23 April 2008, (Mr Allard and Mr Newbegin also attending) one of the supervisors said that the issue was out of control.  The others agreed.  It was said that the crews were constantly bickering about it.  Mr Allard said that he would issue a memorandum regarding the matter.  On the afternoon of 23 April 2008, at a tool box meeting attended by Mr Hasemann, both Mr Harrison and Mr Antal complained about AMWU stickers being stolen or vandalized.  Mr Antal said that the matter was getting personal and that something had to be done about it.  Mr Harrison and Mr Antal criticized Mr Hasemann for not having identified the culprit.  Mr Hasemann said, “You’re right, I haven’t caught the person, and it’s obvious I’m going to have to do something about this to bring it to a halt.”  He again discussed the matter with Mr Allard and Mr Newbegin and suggested that they ban all stickers on site.  As a result Mr Allard issued a memorandum dated 24 April 2008.  It provided as follows:

   It has been brought to my attention by a number of unhappy employees that stickers are being used in a way to target certain individuals by placing them on their lockers and some employees are retaliating by removing stickers from other people’s lockers. 

   In view of this behaviour and in line with maintaining workplace harmony, effective the 30^th April 2008, all stickers will be removed from lockers and company issued clothing and the use of stickers will need to be approved by management. 

   Your support in the removal of these stickers is appreciated.

   Thanks.

   Jason Allard

   Site Operations Manager

9. The words “and the use of stickers will need to be approved by management” probably meant that the use of all stickers was banned unless so approved.  However it may be arguable that it only applied to the use of stickers on clothing and lockers.  On 29 April 2008 Mr Hasemann sent a memorandum to all supervisors, asking them to enforce the memorandum from 30 April 2008. 

10. Mr Harrison’s next day shift after publication of the memorandum was on 2 May 2008.  On that day there was a barbeque for staff.  At the barbeque Mr Hasemann saw Mr Harrison showing other workers something on his neck.  It was an AMWU sticker.  Later, Mr Hasemann spoke to Mr Allard about the sticker.  Mr Allard said that he had asked Mr Harrison to remove it.  At about 10.15 am Mr Hasemann saw Mr Harrison in the office area.  He spoke to him.  Mr Gerry Witt was standing nearby.  Mr Hasemann referred to the fact that Mr Allard had asked him to remove the sticker.  Mr Harrison replied, “I’m not removing the sticker and I won’t remove the sticker until I get it in writing.”  Mr Hasemann said, “He’s given you an instruction to remove the sticker”.  Mr Harrison again said, “When I get it in writing I’ll do that.  I have all the information in my diary.”  Mr Hasemann said, “Well if that’s the case I’ll organize a meeting with Jason Allard to discuss it.”  Mr Harrison said, “I’m just here to keep everyone happy and make [tons].”  At 1.00 pm there was a birthday cake for employees in the lunch-room.  Mr Hasemann asked Mr Harrison to “Come and have a chat in Jason’s office”.  He invited Mr Harrison to bring someone with him if he wished.  Mr Harrison said, “That’s fine.  I’ll just finish my cake.” 

11. At 1.15 pm the meeting convened.  Mr Newbegin, Mr Harrison, Mr Antal, Mr Hasemann and Mr Allard attended.  The sticker was still on Mr Harrison’s neck.  Mr Hasemann asked why he had not obeyed Mr Allard’s direction to remove it.  Mr Allard asked the same question and referred to the memorandum.  Mr Harrison said, “If management want to be childish about stickers I’ll be childish as well.  Give me the instruction in writing and I’ll take it to the union.  They’ll reply within 7 days.”  Mr Allard said, “I have given you the instruction to remove it.  I do not have to give every instruction in writing and we don’t usually give every instruction in writing.  We couldn’t possibly run a business that way.”  Mr Harrison leaned back and yawned, allegedly in an exaggerated way.  Mr Allard then outlined the disciplinary procedures which would be followed.  He referred to possible outcomes, including summary dismissal for serious misconduct.  He said this on two or three occasions.  Mr Allard said, “This is serious, you are disobeying a reasonable instruction from the site manager.”  Mr Harrison said, “The meeting is over.  I am being victimised.”  Mr Allard said, “The meeting is not over.  Am I clear as to how serious the issue is?”  Mr Harrison again leaned back and yawned in an exaggerated style and said, “Well, Jason, do what you need to do.”  At this point Mr Allard suspended Mr Harrison.  Mr Hasemann followed Mr Harrison out of the office and heard him telling employees in the lunch-room that, “I’ve been suspended for wearing a sticker.”  He said to Mr Harrison, “Shane, you’ve been asked to leave the site.”  Mr Harrison said, “I’ve come to get my helmet.”  Mr Hasemann said, “Mate, you do not need your helmet, your helmet doesn’t leave site.”  He then told the other employees in the lunch-room that, “Shane has been suspended for disobeying a reasonable work instruction from Jason Allard three times.  This has nothing to do with the sticker.” 

12. On 6 May 2008 there was a further meeting attended by Mr Hasemann, Mr Allard and Mr Newbegin (from One Steel), Mr Bradley (from the union) and Mr Harrison.  Mr Newbegin took notes of the meeting which Mr Hasemann inspected after the meeting and found to be accurate.  Mr Allard said to Mr Harrison, “This is an opportunity to respond to your failure to follow a lawful and reasonable instruction”.  Mr Allard said that the purpose of the meeting was:

    ·to discuss events leading up to the meeting, including Mr Harrison’s suspension;

    ·to give Mr Harrison the opportunity to comment on the detail and respond to the allegations;

    ·to discuss the issues as One Steel saw them;

    ·to allow Mr Harrison to add anything further;

    ·to then break to discuss the situation and come back with a decision; and

    ·to give Mr Harrison a final opportunity to respond to One Steel’s decision.

13. Mr Harrison did not say very much at the meeting.  Mr Bradley used the words “freedom of expression” and said, “you should be able to wear what you want on your body”.  He discussed turbans and tattoos, saying, “It’s unlawful to request the removal of a sticker”. 

14. Mr Harrison said in his own defence that, “If management are being childish I’ll be childish as well”.  Mr Allard said that, “It is a serious breach of the disciplinary policy and Shane could face dismissal”.  Mr Harrison was invited to add any further comments.  The meeting was then adjourned.  Mr Allard had a telephone conversation with Mr Clement, the National Operations Business Manager.  The meeting was resumed, and Mr Allard said to Mr Harrison, “I have found your response inadequate.  I have followed our disciplinary process and I am summarily dismissing you”.  There was then a discussion concerning Mr Harrison’s entitlements.  Mr Bradley also said, “This won’t be the end of it”.  Mr Hasemann escorted Mr Harrison to his locker and said to him, “I’m sorry it has come to this.  I don’t understand why you pushed the issue.”  Mr Harrison looked teary and said words to the effect that, “I did what I believed in.”  “You’ve got to start giving the jobs to the right people.”  “There’s heaps of work out there I’ll find a job pretty quick.”  “Unemployment is low.  It will be no drama to get a job.”  Mr Hasemann then escorted Mr Harrison to the front of the site where they met Mr Bradley.  As Mr Harrison reached the maintenance area he called out “Workers united will never be defeated”. 

15. Mr Hasemann gave evidence concerning a number of incidents at the site between mid-2007 and January 2008 involving Mr Harrison, being the incidents referred to in the AIRC proceedings and associated meetings.  Car parking on the site was limited.  The front car park was generally reserved for shift workers.  However, during 2007, Mr Harrison frequently parked his motor cycle in the car park rather than in a designated motor cycle parking space.  Some staff, particularly those who started after 7.00 am, complained about this.  On a number of occasions Mr Hasemann asked Mr Harrison to park his motor cycle in the motor cycle park.  Mr Harrison’s initial response was to argue that One Steel was discriminating between motor cycles and cars.  Mr Hasemann replied on those occasions, “Are you refusing to move your bike?”  Mr Harrison would generally reply with words to the effect of, “I’m just here to make [tons].  I want to keep everyone happy”.  He would then move his motor cycle.  Such conduct occurred frequently, particularly when Mr Harrison was on day shift for a period of weeks.  On one occasion he moved his motor cycle but parked it in front of the door to the first aid hut in the maintenance department.  Mr Hasemann told him, “That’s a safety hazard, you know people can’t get in there”.  He then moved it.  The issue was raised at a Staff Advisory Board meeting on 26 June 2007.  Mr Harrison continued to park his motor cycle in the car park.  He said that the motor cycle park did not have 24 hour security. 

16. On a number of occasions Mr Hasemann heard Mr Harrison chanting in the lunch-room, sometimes after tool box meetings.  He frequently used the well-known chant “Workers united will never be defeated”.  Some non-union members took offence at this.  Mr Hasemann raised the matter with Mr Harrison, asking him to desist from the practice because it was offending other workers.  Mr Harrison said, “I’m just trying to make the place better for everyone”, or “I just want to make [tons],” or, “I just want to keep everyone happy.”  Such responses were usually accompanied by laughter.  Mr Hasemann also received complaints from other employees that Mr Harrison was leaving his AMWU hat on the coffee cup rack.  The unhygienic nature of this practice was pointed out to him, and he was asked to stop.  He then put his hat in the refrigerator.  He would remove it from the refrigerator when asked to do so, but it would be back the next day.  After a meeting on 21 January 2008 Mr Harrison relocated his hat to the top of the coke machine where it remained until he left the site. 

17. Another matter of complaint was that Mr Harrison was talking loudly on the two-way radio about union issues so that everybody could hear him.  Mr Hasemann was told that other employees had become annoyed.  He asked Mr Harrison to stop doing so.  It was in response to this incident that Mr Patterson said that opinions about things such as sport, religion and union membership should be kept “to yourselves”.  Other evidence indicates that Mr Harrison used the two-way radio for union purposes on only one occasion.  He said that he had used it only to say that he could not discuss union business.

18. In cross-examination it was put to Mr Hasemann that the union stickers had appeared after the “Say No” stickers.  He considered that they had appeared at about the same time.  Concerning Mr Harrison’s complaint against Mr Tavita, Mr Hasemann agreed that there had been a difference in their versions of the incident.  Mr Harrison claimed to have said, “Do you mean say no to being fucked up the arse”.  He was cross-examined about the decision that Mr Harrison should apologize to Mr Tavita.  He said that the decision was taken by anti-harassment personnel, and not by him.

19. Mr Hasemann was cross-examined about his instruction that Mr Harrison not go on to the shop floor before his shift commenced.  He said that Mr Harrison was regularly early to work.  He agreed that it was not unusual for him to go to the shop floor prior to the shift meeting.  He agreed that employees were permitted to sell raffle tickets on site. He did not agree that Mr Harrison had sold them on the shop floor.  Mr Harrison’s own evidence suggests that he sold raffle tickets on one occasion.  Mr Hasemann also said that Mr Harrison would go to the shop floor 10 or 15 minutes before his shift to “do a changeover with his shift partner”.  When Mr Hasemann gave Mr Harrison his final written warning he said that it was for childish behaviour between him and Mr Tavita.  The relevant conduct was the continual bickering between Mr Tavita and Mr Harrison.  Prior to 27 October 2007 Mr Hasemann had spoken to both men “one on one in different times throughout that period where one complained about the other about what I call trivial things”.  Mr Harrison had complained about stickers on Mr Tavita’s helmet.  Mr Tavita had complained about Mr Harrison hanging his hat on a cup handle.  Mr Harrison had also complained about Mr Tavita removing union literature.  However Mr Harrison had no proof that he had done so.  Mr Hasemann said that such conduct was occurring every two weeks over a period of about six months. 

20. Mr Hasemann was aware of an allegation that Mr Tavita had assaulted Ben Wharton.  He did not consider Mr Tavita to be aggressive towards other employees.  He had heard a rumour that there had been trouble and had inquired of Mr Wharton.  Mr Wharton said that an incident had occurred, but that it was finished with, and that there was no ongoing problem.  They had got into a fight.  Both had been drinking.  Mr Hasemann accepted that Mr Harrison genuinely believed that Mr Tavita had threatened him.  However there were inconsistencies in the statements and a “history” between the two men.  Mr Hasemann agreed that he and other managers believed that people should keep views about unions to themselves.  He did not regard Mr Harrison as a trouble maker simply because he spoke about unionism. 

21. Mr Hasemann had asked a Mr Edwards about his reasons for joining the union.  He was cross-examined as to why he had done so.  Mr Hasemann said that he thought it was unharmonious and wanted to know what had occurred to cause Mr Edwards to make that decision.  He considered that such information would provide “feedback” about his own performance.  He said that he had never had a bad relationship with Mr Harrison.  He was not aware of any suggestion that the “Say No” stickers had been produced by One Steel.

    Mr Allard

1. Jason David Allard, the Site Operations Manager at Acacia Ridge, had been employed by One Steel since 1994.  He was first employed as an operator.  Acacia Ridge had not been a union site during the time he worked there, although there had always been a fair proportion of union members on the site comprising approximately 20-25% of the workforce.  Union membership was concentrated in the maintenance area which employed about 42 workers.  In the mill area, where about 115 workers were employed, the level of union membership was lower.  About a year prior to May 2008 the union increased its activity at the site.  Organizers attended at the site about once every two months and, sometimes, twice a week.  Mr Allard considered that the relationship between the “site” and the union was not “great” but was improving.  There was some friction between a number of workers who were “anti-union” and others who were vocally “pro-union”.  The level of agitation increased, particularly in the mill area.  It was not a significant problem as the workforce generally appeared to be fairly happy with the terms and conditions of their employment.  The union delegates on site were Shane Harrison and Ben Wharton. 

2. In the months leading up to the 2007 federal election a number of anti-union workers began wearing “Say No” stickers on their helmets.  Mr Allard understood the reference to be to union membership.  The stickers were causing friction on the shop floor.  Mr Harrison complained to Mr Hasemann about them.  Mr Vic Patterson, the National Operations Manager of One Steel, issued a directive that all stickers be removed from helmets.  Mr Harrison complained thereafter that another employee, Ray Tavita, had a sticker on his helmet.  According to Mr Allard it was not a “Say No” sticker.  Mr Tavita was a prominent “anti-union” employee.  He was directed to remove the sticker.  He complied with that direction.  In early 2008 Mr Allard became aware that some mill workers on the shop floor were wearing union stickers on their uniforms.  Mr Allard was not greatly concerned about this, although he understood that some employees were unhappy about it. 

3. Over the twelve months prior to May 2008, Mr Harrison had become more vocal regarding the union and the benefits which, as he perceived it, employees would derive from membership.  Mr Allard did not consider this to be a problem from management’s point of view.  At some time prior to November 2007, Mr Harrison began to have issues with Mr Tavita.  Although there is some ambiguity in Mr Allard’s affidavit, it seems that Mr Tavita worked on a different shift from Mr Harrison, so that contact was minimal.  In any event, there was a personality clash between them, involving threats of physical violence.  At this stage Mr Allard intervened, issuing a final written warning to each of them regarding their conduct.  The union filed a notice of dispute in the AIRC, challenging the final written warning to Mr Harrison.  Following a conciliation conference, both final written warnings were downgraded to first written warnings.

4. The union distributed promotional material such as cups, posters and the like on the site.  Management had no issue with this, but some of the “anti-union” employees were unhappy about it and began to remove or damage such material.  Mr Harrison and Mr Wharton approached Mr Allard and Mr Hasemann, saying that people were disposing of union literature left in the lunch-room.  They asked that a notice board be erected for union literature.  This was done.  Mr Allard was not aware of any interference by employees with material which was posted on the board.

5. In early April 2008 Mr Hasemann drew to Mr Allard’s attention the fact that union members were wearing union stickers on their uniforms and were placing them on lockers, to which conduct some workers had taken objection.  Union stickers were being placed on the lockers of both union members and non-members.  Mr Allard told Mr Hasemann to, “let it go”, in the hope that it would resolve itself.  On 23 April 2008 Mr Hasemann reported to Mr Allard that he had received complaints from some employees at tool box meetings.  Both union and non-union employees had complained to him about the stickers.  He considered that the stickers were causing significant disharmony and agitation on the shop floor, and that something should be done about it.  On 24 April 2008 Mr Allard issued the memorandum to which I have previously referred. 

6. Mr Allard said that the shop floor was a potentially dangerous place.  Employees worked with very heavy loads and were exposed to a range of potential workplace health and safety hazards including sudden recoil, hot material, falling loads, swinging loads and exposed electrical wiring.  All of this led him to conclude that disharmony on the shop floor should be minimized.  Following his directive Mr Allard received no representations from employees or the union as to his decision.  He was aware that the union had other material on site which displayed union affiliation including mugs, caps, posters and the like but had no problem with those things.  He had no problems with the stickers until they started to cause trouble. 

7. On 2 May 2008, which was Mr Harrison’s first day shift following the memorandum, Mr Allard observed that he was wearing an AMWU sticker on his neck.  Mr Allard directed him to remove it.  Subsequently, there was a meeting between Mr Allard, Mr Hasemann, Mr Newbegin and Mr Harrison (who was accompanied by Mr Antal).  Mr Harrison was still wearing the sticker on his neck.  Mr Allard asked him why he had failed to follow the direction to remove the sticker.  Mr Harrison said that he wanted the direction in writing, that he would send it to the union, and that they would reply in seven days.  Mr Allard said that he could not run the site in that way, that management could not put every instruction in writing, that Mr Harrison had been given a direct instruction and that he expected him to follow it.  Mr Harrison yawned at this point.  Mr Allard considered that this action was “intentional, pre-meditated and designed to display Shane’s contempt for my position”. 

8. Mr Allard emphasized the seriousness of the situation and said that Mr Harrison could be dismissed for his failure to follow a direct instruction.  He asked if Mr Harrison understood the seriousness of the situation.  Mr Harrison said that the meeting was over and complained that he was being victimized.  Mr Allard said that the meeting was not over and asked him again if he understood that the matter was serious.  Mr Harrison yawned again and said, “Do what you need to do”.  Mr Allard then told him that he was suspended from duty until 6 May 2009, and that the matter would be discussed further at 10.00 am on that date.  Mr Harrison said, “Well, that’s it then”, and left.

9. Subsequently, Mr Allard spoke to Mr Loggie from the union explaining that:

   ·the reason for banning the stickers had nothing to do with the union and everything to do with the fact that it was causing friction in the workplace;

   ·the decision to suspend Mr Harrison was taken because, on three separate occasions on that day, he had refused to follow a reasonable direction relating to the removal of the sticker;

   ·Mr Allard did not care that it was a union sticker; it could have been a Brisbane Broncos sticker, a motorcycle sticker or a fishing sticker;  he and Mr Hasemann had given a reasonable direction to removal all stickers, not just union stickers from lockers and clothing, unless the sticker was authorized by management; and

   ·Mr Harrison had not only disobeyed the direction but, in a clear act of defiance, had attached a sticker to his person, clearly designed to be defiant and to make management look ineffective.

10. On 6 May 2008 Mr Allard, Mr Newbegin and Mr Hasemann (from One Steel) and Mr Harrison and Mr Bradley (from the union) met.  Mr Bradley said that he was not taking any minutes and asked if One Steel personnel would be doing so.  Mr Newbegin indicated that he intended to take notes.  Mr Bradley said that he might want a copy.  Mr Allard said that the meeting was to discuss prior events, including the suspension of Mr Harrison; to give him an opportunity to comment on the detail and respond to the allegations; to discuss the issues as One Steel saw them; to allow Mr Harrison to add anything further; to break in order that One Steel could discuss the situation and return with a decision; and to give Mr Harrison a final opportunity to respond to that decision.

11. Mr Allard then gave an account of his instruction to Mr Harrison.  Mr Harrison nodded in apparent agreement. He was asked if he agreed with Mr Allard’s version of events and said that it was spot on and about 99% accurate.  He said, however, that he had not said that he would not remove the sticker, but that he would remove it if he got the instruction in writing.  He said that he had not heard Mr Hasemann say that he had arranged to get together with “Jason” to sort the matter out (referring to the conversation at the birthday function).

12. Mr Allard then said that Mr Harrison had yawned twice during the meeting on 2 May 2008.  Mr Harrison said, “Well you guys had the witnesses, so you should know”.  Mr Allard said that the meeting on 2 May was for the purpose of giving him a chance to respond and he had not done so.  Mr Allard said that it was disappointing that, at the meeting, he still had the sticker on his neck and did not remove it, although he had been told to do so.  He asked Mr Harrison if he realized that he was not following an instruction from him as site manager.  Mr Harrison agreed and said that he wanted the instruction in writing.  He said that he had seen the memorandum, thought that it was childish and had told others that he could be just as childish.

13. Mr Bradley said that the sticker was on Mr Harrison’s person, and that it was unlawful for One Steel to request that he remove it.  He said that the sticker was much like a tattoo or a ring, and that a person could not be asked to remove such a thing.  Mr Allard said that the issue did not relate to the sticker but to the fact that Mr Harrison had failed to follow a direction.  Mr Bradley said that he had discussed the issue with union members at the May Day march.  Many were vocal about Mr Harrison being entitled to ask for the direction in writing.  Mr Allard said that the request to remove the sticker was not unreasonable, and that it and the original memorandum were clear about what was required.  He reiterated the position communicated in the memorandum: that any further use of stickers had to be authorized by management.  He again said that the matter was not about stickers but about Mr Harrison’s blatant disregard for instructions given by him, by Mr Hasemann and at the meeting on 2 May 2008.  He said that his instructions were reasonable and that he was concerned about other instructions which Mr Harrison might ignore such as safety instructions.  Mr Bradley said that safety instructions were lawful, and that Mr Harrison would follow them.  The instruction to remove the sticker was not lawful.  Mr Allard again asserted that Mr Harrison had ignored instructions and wilfully disobeyed them. 

14. Mr Bradley again said that Mr Allard had no right to ask Mr Harrison to remove anything from his body.  Mr Allard again said that his instruction was reasonable and lawful, and that the issue was Mr Harrison’s refusal to follow his direction.  Mr Allard then said that it was impossible to run the business and the floor safely and effectively if an employee refused to follow a reasonable and lawful direction.  He then asked Mr Harrison if he had anything further to say about the matter.  Mr Harrison said that there were plenty of stickers in the workplace, on walls and cups, and that management was not addressing them.  Mr Allard asked Mr Hasemann if stickers had been removed since he issued the memorandum.  Mr Hasemann said that the majority had been removed, but that some had been hard to remove.  The supervisors were still addressing the matters.  Mr Harrison said that the AMWU stickers had probably gone first.  Mr Hasemann said that, in fact, company stickers such as “Be Smart” safety stickers were removed first.

15. Mr Allard again asked Mr Harrison if he understood how serious the situation was.  He made no response.  He was asked if he had anything further to add and said that he had nothing to say.  Mr Allard then told Mr Harrison and Mr Bradley that they would adjourn for 15 minutes whilst the One Steel representatives considered the matter.  Mr Harrison asked if he could have a drink of water.  Mr Allard said, “Of course mate”.  Mr Harrison said, “Okay, good, as long as I follow a directive”. 

16. Following that meeting Mr Allard considered the matter and consulted with One Steel’s solicitors and senior management.  He then decided that Mr Harrison’s behaviour constituted misconduct justifying his termination.  In so doing he took account of the fact that the direction had not specifically targeted union stickers, but had applied to all stickers; that Mr Harrison had provided no reasonable excuse for his decision wilfully and unreasonably to disobey an instruction; that he appeared to have no insight into the seriousness of his actions; and that he had shown no remorse, despite it being clear that management viewed the matter very seriously.  Mr Allard was mindful of the fact that Mr Harrison was a union delegate, and that his decision was likely to result in trouble with the union.  However he felt that he had no reasonable alternative. 

17. The meeting then resumed.  Mr Harrison was asked if he wanted to say anything further.  He made no response.  Mr Allard apologized for the delay.  He said that he had taken legal and corporate advice, and that he had decided to dismiss Mr Harrison, effective immediately, for wilful disobedience of a work instruction.  Mr Harrison said that he knew it was coming and was not surprised.  He said that he was lucky that there were plenty of jobs out there, and that he would have no trouble finding something else.  He also asked about his entitlements.  He was told that as he had been summarily dismissed he was only entitled to annual leave and long-service leave.  He was not entitled to payment in lieu of notice.  There was a discussion about his age.  Mr Bradley said that there were levels of summary dismissal.  Mr Allard then agreed to pay Mr Harrison five weeks’ wages in lieu of notice.  Mr Harrison said that union membership would double on site because of the incident and said something to Mr Bradley about getting flyers made up with his face on them, stating that he had been terminated for wearing a sticker.

18. With regard to other matters which Mr Harrison raised in his affidavit, Mr Allard said that overtime had been available on site for Mr Harrison if he chose to work it.  One Steel had been supportive of Mr Harrison’s education as a union delegate.  He had been provided with time off to attend to union issues.  One Steel had, on occasions, asked him for suggestions as to improved productivity. 

19. In a second affidavit Mr Allard elaborated upon certain aspects of his earlier affidavit.  When he first told Mr Harrison to remove the sticker, he asked that the instruction be given in writing.  At the meeting on 6 May 2008, after he had advised Mr Harrison that his employment would be terminated, there had been a discussion with Mr Bradley concerning entitlements.  Mr Bradley suggested that Mr Harrison was entitled to four or five weeks pay.  Mr Allard eventually agreed, after discussions with the payroll section, that he should have five weeks’ pay in lieu of notice.  Mr Allard said that his decision to dismiss Mr Harrison had nothing to do with his union membership or position as a delegate.

20. In cross-examination Mr Allard was asked about an email from Mr Newbegin dated 2 May 2008 which read as follows:

    Got the full story from Graham about Shane and his neglect to follow orders over the sticker issue on his neck. 

    My current thoughts are that we could capitalise on this situation and in line with what we were told at the last conciliation regarding his behaviour give him a final written warning.  When he arcs up, we’ll tell him we’ll see him at arbitration with the same judges that presided.  She won’t take to him lightly.

    We should probably inform Doug Loggie of our intent should we go this way.

    Call me when you are finished with Bill Gately and we’ll talk.

21. Mr Newbegin is the National Training and Human Relations Manager for One Steel.  Mr Allard said that he did not know what was meant by the statement “we could capitalise on the situation”.  He agreed that Mr Newbegin’s email suggested that Mr Harrison was a problem.  He had not previously realized that Mr Newbegin had that opinion.  Mr Allard did not consider Mr Harrison to have been a problem.  He was generally a good worker.

22. Mr Allard was then asked about a letter dated 7 May 2008 from One Steel’s solicitors to Mr Harrison’s solicitors in which the “key factors” in the decision to terminate were said to have been:

    1.The failure of your client to obey a reasonable and lawful direction on repeated occasions;

    2.The significant disruption to the normal commercial operations of the site due to your client’s deliberate and wilful conduct over a period of time and which conduct was calculated by your client to cause maximum disruption;

    3.The potentially adverse health and safety consequences that may have followed if the deliberate disruption were allowed to continue.

23. Mr Allard said that he thought point 1 was the most important of the grounds, and that Mr Harrison’s previous disruptive conduct had not been a key factor in his decision.  He did not agree that Mr Harrison had been significantly disruptive in his conduct.  He was asked about the matters referred to in point 2 and said:

    It’s probably the – again, the issues that were raised at the AIRC, including, I suppose, petty things like not parking your motor bike in the designated area, putting your union hat in the fridge and hanging it on cups in the smoko room.

24. He was then asked:

    Just staying with those matters; do you say those matters caused a significant disruption to the normal commercial operation of the site?

25. He replied:

    Yes, unfortunately they did because there is such a strong – I suppose there’[s] a few people that are very strong in my work force, of – I’d probably say pro-union, very for the union, and there’s a few that really don’t want the union to represent them.

26. Mr Allard also said that time had been taken up in meetings concerning aspects of Mr Harrison’s conduct and in connection with the AIRC proceedings.  Mr Allard said that stickers first appeared in about May 2007, and that the “Say No” stickers were first in time, ahead of the union stickers.  He said that the “Say No” stickers appeared to have been printed on a label printer.  He did not know whether One Steel’s resources had been used to print them.  He had not heard anything about that subject.  However he knew that at some stage it had been alleged that they were so produced.  He said that the stickers looked as if they might have been made on the label printers at One Steel.  There had been complaints about the “Say No” stickers.  As to the question of threats of violence between Mr Harrison and Mr Tavita, he said that in October (presumably 2007) Mr Harrison complained that Mr Tavita had said something about taking him outside the gate.  Mr Hasemann and Mr Croxford investigated the matter.  He said he did not really believe that there were any threats, but he accepted that Mr Harrison thought that there had been.  Earlier in the year Mr Tavita had made a complaint about Mr Harrison.  There was a certain degree of “tit-for-tat” about their relationship. 

27. Mr Allard was referred to the company’s disciplinary policy which provided:

    When disciplinary measures are called for the standard practice for PTM is to be on the following sequence:

    Step 1  A formal counselling session; …
    Step 2  The first written warning; …
    Step 3  The final written warning, …
    Step 4  Termination …

1. He was asked about the warnings issued to Mr Tavita and Mr Harrison and if it was his decision to “leap frog over steps 1 and 2 and go straight to step 3”.  He agreed that it was.  He said that the reason for the final warning was the “niggling between both Shane and Ray, that had occurred over the … months leading up to this incident and some of the other … issues that were causing disharmony on site that were also raised at the AIRC”. 

2. Mr Allard agreed that in June 2007 Mr Harrison was told not to go to the shop floor outside of his shift hours.  He agreed that he had, for some years, visited the shop floor when he arrived early for work.  Mr Allard was asked if he agreed that Mr Harrison had been told to stop this practice at about the time he was appointed a delegate.  Mr Allard agreed that the times seemed to match, but said that the reason for the ban was that there had been complaints about his hassling people over joining the union.  It was suggested that the final written warning in 2007 was given because of Mr Harrison’s position as a union delegate.  Mr Allard denied this.

3. I should refer to two particular aspects of Mr Allard’s evidence.  Firstly, he obviously considered that Mr Harrison and Mr Tavita had been in conflict on an ongoing basis over an extended period of time.  Although he was not able to give particulars of the conduct it was, in my view, his honest perception of the relationship between the two men.  Secondly, in his email Mr Newbegin seems not to have contemplated Mr Harrison’s dismissal, although he seems to have contemplated his reacting to a final written warning.  The email certainly suggests that as far as Mr Newbegin was concerned, Mr Harrison’s behaviour had been a significant issue at the last conciliation conference in the AIRC.  Mr Allard appears to have been less concerned by Mr Harrison’s previous conduct.

   Mr McGuire

4. Daniel McGuire was a shift supervisor employed by One Steel.  During 2007 and early 2008 he was shift supervisor for Crew No. 1 which included Mr Harrison.  He said that from mid-2007 Mr Harrison, Mr Butler and Mr Wharton became active in promoting the union on site.  During early 2007 Mr McGuire became aware that some employees on site were not happy with such promotion, Mr Harrison’s conduct and, to a lesser extent, that of the other two men.  There were five common areas of complaint.  Some men simply did not want to be represented by the union.  Mr McGuire responded to them by saying that they did not have to be represented, and that they were entitled to their own views, as Mr Harrison was entitled to his.  A second group complained about Mr Harrison’s methods in talking to them about the union and in trying to convince them to join.  They felt that he had intimidated and harassed them.  Mr McGuire told these people to complain to Mr Hasemann.  The third group were employees who complained about Mr Harrison’s conduct simply because it was persistent and annoying.  Some said that they would not go to the lunch-room when Mr Harrison was there.  A fourth group complained about Mr Harrison’s use of stickers and pamphlets.  This was “more of a petty, niggling issue and one that I didn’t take much notice of at the time, though it did become more serious later in the year and during early 2008”.  Fifthly, some employees complained about Mr Harrison singing union chants at the top of his voice.  He did this in the lunch-room, the change room or when walking around the mill area. 

5. On or about Monday 4 June 2007 Mr McGuire was present at a meeting with Mr Hasemann, Mr Newbegin and Mr Harrison to discuss an issue which had occurred on a previous shift.  Mr Harrison had been seen on the mill floor at 5.20 am, handing out a union T-shirt and talking to employees about the union.  Mr Tavita had told him to leave the floor.  During the meeting Mr Hasemann and Mr Newbegin reminded Mr Harrison that he was not allowed on the mill floor before the start of his shift.  It was disturbing the men whilst they were working.  He was not to do it again.  Mr Harrison replied, “The wave is coming”. 

6. On 5 June 2007 there was another meeting on site attended by Mr Patterson, Mr Allard, Mr Hasemann, Mr McGuire, Mr Antal and Mr Harrison.  Mr Harrison had been agitating for some time for the union to become involved in site issues.  Mr McGuire understood that the meeting had been suggested by Mr Patterson and Mr Hasemann to enable Mr Harrison to identify the issues in question.  At the meeting he was invited to raise his concerns.  Amongst other issues was an allegation that jobs were going to “knee padders”.  The meaning of the term is not immediately clear.  It may have been related to Mr Harrison’s perception that there was nepotism on the site.

7. Mr McGuire said that in early June, 2007 a number of workers in the mill started wearing “Say No” stickers on their helmets.  Mr Harrison complained about this and asked that they be banned.  At about the same time Mr McGuire became aware that AMWU stickers and the “Say No” stickers were causing friction in the workforce.  In about June 2007 Mr Patterson and Mr Hasemann directed that all stickers on helmets, other than company logo stickers and workers’ names, be removed.  This was an unpopular decision with employees.  They had the custom of personalizing their helmets with stickers.  However they generally complied with the direction.  They later tried to avoid it by putting stickers on their ear muffs.  This practice was also banned. 

8. On 27 October 2007 Mr McGuire walked into the smoko room (this may be the room elsewhere described as the “lunch-room”) at about 5.20 am.  He saw Mr Harrison and Mr Edwards sitting at a table.  Mr Tavita came into the room and said something which Mr McGuire could not hear.  Mr Harrison told him to stop swearing in the lunch-room.  Mr Harrison and Mr Tavita then exchanged comments.  Mr McGuire told them to stop doing so and then left.  A few moments later Mr Harrison came into the supervisors’ office and said, “I want to make a complaint.  Ray just threatened to take me out the gate”.  Mr McGuire said, “Are there any witnesses?”  Mr Harrison identified three witnesses.  Mr McGuire said, “Where is Ray?”  Mr Booth then left the room to get him.  Mr Harrison said, “What are you going to do about it?  He threatened to take me out the gate”.  Mr McGuire said that as there were no managers at the site (it being a weekend) it would have to wait until Monday morning.  About half-an-hour later Mr Harrison burst into the room again, saying, “Ray just threatened me again.  That’s twice!  This is bullshit.  He said he’s gunna get me”. 

9. On 29 October 2007 Mr McGuire met with Mr Croxford, Mr Antal and Mr Harrison for the purpose of discussing the complaint.  Mr Harrison repeated his allegation and said that he was offended by Mr Tavita’s swearing.  Mr McGuire found this difficult to believe given his experience with Mr Harrison’s own language.  Further, he had never previously heard him complain about bad language.  On Wednesday 31 October, the crew had a rostered day off and played golf together, followed by a few drinks.  Mr Harrison attended, playing with Mr Antal.  On 1 November Mr McGuire learned that Mr Harrison was suffering from stress and would not be coming to work for his night shift.  On 28 November 2007 there was a meeting on site at which Mr Harrison was informed of the outcome of his complaint against Mr Tavita.  Present at the meeting were Mr Hasemann, Mr Croxford, Mr Harrison, Mr Antal and Mr McGuire.  Mr Hasemann said that the witnesses did not support Mr Harrison’s version of what had occurred.  He said to Mr Harrison, “This childish behaviour is to cease immediately”.  He said that Mr Tavita had been given a final written warning about the incident, and that Mr Harrison would also be given a final written warning.  Mr Harrison said that he was disgusted with the way in which he had been treated.  He refused to sign the “record of interview”. 

10. Towards the end of 2007, or at the beginning of 2008, Mr Harrison, Mr Butler and Mr Wharton commenced to wear stickers on their clothing.  The issue of stickers on lockers also became a problem amongst employees.  On 4 March 2008, Mr McGuire told Mr Wharton to put a large union sign in his car.  He had left it in an office.  Mr Allard subsequently complained that it had been propped up on the outside of the car and wrapped around the windscreen.  Mr McGuire told Mr Wharton to put it inside the car. 

11. On 2 May 2008 Mr McGuire saw Mr Harrison at the pre-shift meeting at 5.55 am.  He had a sticker on his neck.  Mr McGuire said to him, “You’re asking for trouble with that sticker on your neck mate”.  He next saw him in the smoko room prior to the barbeque.  The sticker was still on his neck.  He said to him, “Sometimes it’s better to live to fight another day”.  Mr Harrison replied, “You know me Dan, I’m a shit stirrer.  I gotta wear it.  I can’t take it off”.  Mr McGuire said, “You’re being foolish”.  The barbeque started at 6.00 am, and at about 6.30 am, Mr McGuire saw that Mr Harrison still had the sticker on his neck.  He subsequently heard from Mr Allard that he had directed Mr Harrison to remove the sticker, and that Mr Harrison had refused.  Mr Hasemann told Mr McGuire that he was meeting with Mr Harrison at 1.15 pm and asked him to attend.  Subsequently Mr McGuire spoke to Mr Harrison saying, “Mate, I think you’ve made your point.  You probably want to remove the sticker off your neck please”.  Mr Harrison did not do so.  He again said words to the effect of, “Come on Dan you know me.  I’m a shit stirrer.  I gotta stir the shit”. 

12. Mr McGuire was late for the meeting and arrived as Mr Harrison was leaving.  He said, “I’ve been suspended.  This is fucking bullshit”.  Mr McGuire said, “Shane, I told you to take it off your neck.  You made your point at the barbeque”.  Mr McGuire did not attend the meeting on 6 May 2008 at which Mr Harrison was dismissed.  He saw him afterwards.  Mr Harrison said that he would be back. 

13. Mr McGuire said that Mr Harrison frequently arrived at work early and went on to the floor before the commencement of his shift to obtain information about the state of work that he was to undertake when the shift started.  At some stage, however, it was decided that employees should not go on to the shop floor before the start of the shift.  Only team leaders were allowed to do so.  Shift operators would attend the pre-shift meetings, presumably for the purpose of providing the information previously supplied on the floor. 

    Mr Clement

14. Richard Paul Clement was One Steel’s National Operations Business Manager, based in Newcastle.  On 14 April 2008 he attended a meeting at Acacia Ridge with Mr Newbegin, Mr Harrison and Mr Loggie.  The mood of the meeting was “very jovial and friendly”.  It was a “meet and greet” meeting and not a “union and management” meeting.  At the commencement of the meeting Mr Harrison stood at the door and removed about five stickers from his work shirt.  He then said words to the effect that, “I have removed them so you don’t need to worry”.  Mr Clement did not understand the significance of these actions.  The following conversation then took place.  Mr Loggie said:

    Hello Richard, I am Doug Loggie and I am a state organizer from the AMWU.  Sorry Terry cannot be here today, he’s been called away, but I still wanted to meet with you to introduce myself and meet you.

    The relationship between the union and the site management has not been good here in the past and I am keen to see that change.  I know Vic Patterson and Terry did not get on and I know Vic has gone now and I am looking for a better relationship with management.

    I know Terry can be a little forward and hard to get on with and I am not saying the problem was all yours.  He is from Victoria you know [laughing]. 

15. Mr Harrison said, “Yeah, they’re different down there you know”.  Mr Clement said, “Ok, let me give you a brief run down on myself and where I am from”.

16. Mr Clement then told Mr Loggie that he was once a delegate with the Electrical Trades Union, had a long association with unions and had worked at most levels in the company, starting at the shop floor.  He said that his management style was to involve people, that he was not anti-union and intended to focus his energies on improving the business.  He then explained his own role in the company.  He was performing an operational role until a new manager was recruited.  Mr Loggie again said that the union was keen to work with management to improve the business.  Mr Clement then said:

    Guys, we need to be clear on a few things moving forward.  This site and in fact our whole business needs to improve.  We have very strong opposition from importers and we have been given a chance to survive by the merging of the two companies.  If the unions or anyone else for that matter has ideas or solutions to make this happen I am more than happy to listen and work through the problems.  This site survived over the Newcastle business because it has a “can do” attitude and it is a leaner, more productive lower cost pipe maker.

17. There was some discussion about how many union members were on site and whether they wanted a collective agreement.  Mr Loggie agreed to send Mr Clement a copy of a recent survey.  He said that he was there to talk about moving the relationship forward rather than about a collective agreement.  He said that the union had experienced problems in visiting the site to meet potential members.  Mr Clement said:

    My understanding is that Jason has been far more accommodating than previous guys; that you have had at least 3 visits in the last few months; that Jason has provided a meeting room for you to use; and he has also communicated your presence to the site.  Yet, on each occasion you have not had a single person from the floor come to see you.  I am not going to help or hinder this process.

18. He denied saying that Acacia Ridge had survived because it was non-union.  He also denied that there was any conversation concerning stickers.

19. On 2 May 2008 Mr Clement received a telephone call from Mr Allard concerning Mr Harrison.  Mr Allard said that an issue had arisen that morning.  He described the history of the dispute concerning stickers.  He said that the dispute had led him to issue a written memorandum banning all stickers on clothing and lockers.  He outlined Mr Harrison’s conduct on that day and at the meeting and said that Mr Harrison was stood down until 6 May 2008.  He said that Mr Harrison was a union delegate, and that the sticker was a union sticker.  Mr Clement said that Mr Harrison should be treated as any other employee would be treated and advised Mr Allard as to the conduct of the meeting.  He also said that he would speak to the company’s Employee Relations Adviser.  He subsequently did so and then had a further telephone conversation with Mr Allard, reassuring him as to the approach which he was proposing to follow.  On 5 May 2008, Mr Clement sent Mr Allard an email.  The email is quite detailed.  I will return to it in a moment.

20. On Tuesday 6 May 2008 the Employee Relations Adviser, Mr Dunleavy, and Mr Clement had a telephone conference with Mr Allard before his meeting with Mr Harrison.  They discussed legal advice which they had received and also the need to extend procedural fairness to Mr Harrison.  About 40 minutes later Mr Allard telephoned to say that the meeting with Mr Harrison had been adjourned in order to consider the action to be taken.  They discussed options.  Mr Allard said that he thought termination was his only option, given Mr Harrison’s conduct and attitude.  Mr Clement advised him that he should not be influenced by any fear of union action.

21. Returning to the email of 5 May 2008, it primarily recommended that Mr Allard focus upon the conduct in question, Mr Harrison’s attitude towards it and his reasons for his conduct.  The second last paragraph was as follows:

    In the end if you are comfortable with the session simply dismiss his [sic] for misconduct in that he has failed to follow a request etc etc and leave it to them to pursue along commission lines if they see fit.  Be clear with the wording – document everything up.

22. It seems that by this time, Mr Harrison’s conduct was seen as justifying dismissal.  However Mr Clement left open to Mr Allard the option of not proceeding in that way, depending upon his feelings concerning the meeting.  

23. In cross-examination Mr Clement said that he was responsible for the three sites owned by One Steel.  He said that the other two sites were covered by union collective agreements.  The company had not, at that stage, considered the possibility of an enterprise agreement at Acacia Ridge.  He was aware that the union was interested in negotiating such an agreement.  He said that Acacia Ridge had “a lower conversion cost and was a more productive unit on a tonnes per man measure as well as a cost measure than the equivalent mills in the Newcastle business”.

24. He was cross-examined as to whether labour costs were lower at Acacia Ridge than at the other sites.   He claimed only to know that the conversion cost was lower.  I understand the term “conversion cost” to be the cost of turning raw product into pipe.  Concerning the meeting on 14 April 2008 Mr Clement did not recall saying that he was happy to keep the site as a non-union site or that its success was because it was a non-union site.  He agreed that he probably made it clear that in view of the large number of non-union employees, his focus would not be on “dealing with … unions or non-unions”, but rather on improving the business.  He did not want to go too far down the path of dealing with any group at this stage, given that he was in an acting role.  He did not recall Mr Loggie saying that the company had, in the past, encouraged a division between union and non-union personnel.  He had no recollection of Mr Loggie saying that the “Say No” stickers had been produced by somebody using company equipment.

    Mr Croxford

25. Bruce Croxford was the Manager (Electrical Maintenance and Process Improvement) at Acacia Ridge.  From 27 August 2007 to 31 March 2008 he was the acting Operations Manager.  On 29 October 2007 Mr Hasemann asked him to participate in a number of interviews in relation to a complaint by Mr Harrison against Mr Tavita.  Mr Harrison was asked to attend a meeting on 28 November 2007 to finalize the investigation.  Those attending were Mr Croxford, Mr Hasemann, Mr McGuire, Mr Antal and Mr Harrison.  Mr Harrison was told that both he and Mr Tavita had acted inappropriately by engaging in childish behaviour.  In the course of the meeting Mr Harrison responded by standing up and swearing.  He received a final written warning and was told that Mr Tavita had been similarly warned.  At about 1.30 pm on 28 November 2007 Mr Croxford received a telephone call from Mr Bradley.  He objected to the words “childish behaviour” in the warning.  Mr Croxford subsequently wrote to Mr Bradley indicating that the words “childish behaviour” would be deleted and the words “inappropriate and unacceptable behaviour” inserted.

26. Mr Croxford was not cross-examined.

    Mr Newbegin

27. Darren Newbegin was the National Organizational Development and Training Manager for One Steel.  Mr Newbegin’s knowledge of matters relevant to this case was largely second-hand.  He was, however, present at a meeting on 2 May 2008 between Mr Harrison, Mr Antal, Mr Allard and Mr Hasemann.  When Mr Harrison entered the room he had a sticker on his neck.  Mr Allard asked why he had not removed it as directed.  Mr Harrison said that he wanted the instruction in writing, that he would send it to the union and that they would reply within seven days.  Mr Allard said that he could not run the site in that way; that management could not put every instruction in writing; and that Mr Harrison ought to have acted on the instruction.  Mr Harrison yawned intentionally.  Mr Allard reiterated the seriousness of the situation and advised Mr Harrison that he could be dismissed for failure to follow a direct instruction.  He asked Mr Harrison if he understood the seriousness of the situation.  Mr Harrison said that the meeting was over, and that he was being victimized.  Mr Allard said that the meeting was not over.  He asked Mr Harrison again if he clearly understood the seriousness of the matter.  Mr Harrison again yawned intentionally and said, “Do what you need to do”.  Mr Allard suspended Mr Harrison until Tuesday 6 May 2008, indicating that the meeting would reconvene on that date to discuss the outcome of Mr Harrison’s actions.  Mr Harrison said, “Well, that’s it then”, and left. 

1. Wootten J then referred to the decision of Isaacs ACJ in Adami v Maison De Luxe Limited (1924) 35 CLR 143 at 148-9. In that case the Acting Chief Justice rejected the proposition that, “wilful disobedience of a lawful order”, meant, “simply conscious disobedience of an order, obedience to which is found after litigation to be in fact and in law within the range of duty”, and continued:

   The proposition asserts that, provided ultimately the order is found to be within the scope of the contract, it matters not how isolated and trivial the occasion may have been, how unimportant the disobedience in relation to the employer’s affairs, how doubtful in fact or law the legality of the order may have been, how bona fide and reasonable may have been the contention of the employee or how clearly his action was intended and explained at the time as defence only and not in any way as defiance.  That is a proposition I find it impossible to accept.

2. The other members of the Court (Gavan, Duffy and Starke JJ) did not address this question.  At 151-152 Isaacs ACJ continued:

   But the effect of the word “wilful” varies, and, as I have said, the only universal guide is to ascertain from its surroundings what the word is intended to connote.  One commanding circumstance is to ascertain the subject matter as a totality of which it is predicated that it must be wilful.  Here the subject matter is not “disobedience”, but “disobedience of a lawful order.”  It is the whole compound expression that must be “wilful,” and not the one word “disobedience” adding a provision “if the order be lawful.”  It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain.  But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of the valuable accruing rights, together with some degradation – altogether a severe penalty – is, in my opinion, quite a different matter.  Such a justification requires the disobedience to be as phrased “wilful disobedience of a lawful order.”  That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance. 

   Once the element of “wilfulness” is introduced for the purpose of the summary rescission by one party of the whole contractual relation, with penal results on the other, then, as the “wilfulness” is the attitude of the employee, so far as it is conveyed by words or acts to the employer, the subject must be looked at from a new standpoint.  “Wilfully” does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty. 

3. In Bruce v A W B Ltd (2000) 100 IR 129, an employee had been employed upon certain conditions, including that he report directly to the managing director and be a member of the executive committee. He was subsequently told that the organization was to be changed so that he would no longer be a member of the executive committee or report directly to the managing director. The employee asserted that the changes were in breach of his contract of employment, and that he was not willing to perform his duties on that basis. He remained willing to perform them in accordance with his understanding of the contract. He was dismissed upon the basis that he had repudiated his contract of employment. The contract provided that: “The duties of the above position are set out under establishment No 7100 or as directed by the Managing Director”. The employer argued that the managing director was therefore empowered to dispense with the employee’s “duties” of reporting to him and sitting on the executive committee, and to impose the duty of reporting to the general manager. Sundberg J concluded that the managing director was authorized to make the proposed changes. His Honour then had to consider the validity of the dismissal. At [15] his Honour said:

   Two conditions must be satisfied at common law in order to justify a summary dismissal.  First, there must be a breach by the employee of the terms of the contract or a demonstrated intention not to be bound by those terms.  Secondly, the conduct must be sufficiently serious to allow summary termination.  Freedland observes:

   “The right to rescind a contract for breach of condition arises by reason of a failure of performance which has occurred in the past, provided the failure is of sufficient gravity or relates to a sufficiently major term of the contract.  The right to rescind a contract in response to repudiation arises, not so much by reason of a failure of performance in the past as by reason of the manifestation of an intention not to perform contractual obligations in the future.”

   See The Contract of Employment (1976) at p 217.

4. The applicants also rely upon the decision of the High Court in D.T.R. Nominees Proprietary Limited v Mona Homes Proprietary Limited and Another (1976-1977) 138 CLR 423. That case concerned a contract for the sale of land, completion being conditional upon registration of a plan of subdivision, a copy of which was attached to the contract. At the date of the contract the vendor had not lodged the plan but had lodged a plan for a larger subdivision of which the subject land was part, seeking approval of so much of the subdivision as related to that land. That plan was approved and registered. The vendor then required completion within 14 days. The purchasers purported to rescind the contract on the basis that the plan attached to the contract had not been registered, and that the vendor had thereby repudiated the contract. The vendor asserted that the purchasers had wrongfully repudiated the contract and purported to rescind, forfeiting the deposit. The purchasers commenced proceedings seeking a declaration that the contract had been validly rescinded upon the basis that in lodging the plan of subdivision the vendor had repudiated the contract, or that subsequent correspondence, asserting compliance with the term as to registration and calling for completion, had constituted repudiation. In the High Court the first question was whether or not an intention to repudiate the contract could be inferred from the vendor’s conduct. At 432 Stephen, Mason and Jacobs JJ said (Aickin J concurring):

   No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, evinces an intention that he will not perform the contract according to its terms.  But there are other cases in which a party, though asserting a wrong view of a contract because he believes it to be correct, is willing to perform the contract according to its tenor.  He may be willing to recognize his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation.  In either event an intention to repudiate the contract could not be attributed to him.  As Pearson LJ observed in Sweet & Maxwell Ltd v Universal News Services Ltd:

   “In the last resort, if the parties cannot agree, the true construction will have to be determined by the court.  A party should not too readily be found to have refused to perform the agreement by contentious observations in a course of discussions or arguments … .”

   In this case the appellant acted on its view of the contract without realizing that the respondents were insisting upon a different view until such time as they purported to rescind.  It was not a case in which any attempt was made to persuade the [vendor] of the error of its ways or indeed to give it any opportunity to reconsider its position in the light of an assertion of the correct interpretation.  There is therefore no basis on which one can infer that the [vendor] was persisting in its interpretation willy nilly in the face of a clear enunciation of the true agreement.

5. The passage from Freedland which was cited in Bruce recognizes a distinction between breach and repudiation.  In Bruce, as far as the report goes, there had been no actual failure by the employee to perform his duties in accordance with the proposed changes in arrangements, or any exercise of a purported right to do that which he was no longer required to do.  Similarly, in Mona Homes, time not being of the essence of the contract, either the vendor had not yet breached the contract, or any breach did not provide a basis for determining it.  In the present case, however, Mr Harrison not only indicated that he would not comply with the direction, but did not do so.  This conduct continued from the time at which Mr Allard first raised the matter with him until he left the meeting on 2 May 2008.  He has not demonstrated any basis for believing the direction to be unlawful.  On his own version he wanted it reduced to writing for reasons that were extraneous to his employment.  Whilst it is true that on 6 May 2008 Mr Bradley suggested that there was some question of discrimination or, perhaps, illegality about the direction, he also made no attempt to demonstrate any basis for that view.  I see no basis upon which such a submission could be made.  I do not accept that either man genuinely believed the direction to be unlawful.  There is no basis for asserting that on 2 May 2008 Mr Harrison refused to comply with the direction because he considered it to be unlawful, or that he asserted a construction of his contract of employment which was inconsistent with that impliedly advanced by Mr Allard in giving the direction.

6. The only remaining question, then, is whether or not Mr Harrison’s disobedience was of a kind which justified summary dismissal by connoting some deliberate design or purpose to derogate from his duty.  Did it constitute a repudiation of the contract or one of its essential conditions?  Did it evince an intention no longer to be bound by the contract?

7. It is possible, at a superficial level, to characterize Mr Allard’s direction as concerning only the employer’s right to regulate the way in which employees present themselves for work.  It may be suggested that Mr Harrison’s departure from his employer’s requirements in that regard was minimal and temporary.  However such an approach would misrepresent the matter.  The process of banning stickers had commenced in, or shortly after, June 2007 and had been progressively expanded in its operation to reflect the ways in which employees were seeking to avoid its effect.  Mr Harrison was fully aware of the circumstances in which the ban had been imposed, including the fact that the wearing of stickers had caused considerable conflict on the site.  He knew that the “Say No” stickers had been banned, at least partly as the result of his opposition to them.  He could not reasonably have expected One Steel to tolerate his wearing a union sticker on any part of his person.  In my view such conduct was prohibited by the concluding words of the memorandum of 24 April 2008.  Even if it was not, Mr Allard made it clear to Mr Harrison that he was prohibiting his wearing of the sticker.  Mr Allard also made it clear, if not initially, then at the meeting on 2 May 2008, that he intended to insist upon compliance.  By that time Mr Harrison had also been asked by both Mr McGuire and Mr Hasemann to remove the sticker.  The fact that Mr McGuire, Mr Allard and Mr Hasemann had all received negative responses indicated a clear commitment by Mr Harrison to his chosen course of conduct. 

8. One Steel’s conduct in banning the stickers, and Mr Allard’s conduct in directing Mr Harrison to remove his sticker were not capricious.  The history of the matter, and the ill-feeling which had been generated, demonstrated the importance of the issue.  Management was both obliged and entitled to ensure that the site was as harmonious as possible.  Employees generally would not wish to work in an unharmonious workplace.  Further, there was always the risk, mentioned on numerous occasions, that disharmony would lead to increased risk in a potentially dangerous workplace.  In those circumstances Mr Harrison’s stated intention of humorously commenting upon management’s attitude amounted to nothing more than a desire to ridicule attempts to resolve a potentially serious situation.  He must have realized that other employees were likely to respond adversely to his continued wearing of a union sticker whilst they were subject to the general restriction imposed by management, partly at Mr Harrison’s behest.  In short, Mr Harrison was mischief-making in an area in which the risk was only too obvious.  In particular, he was trying to undermine management’s capacity to resolve the problem and maintain harmony on the site.  In those circumstances there can be no doubt that his conduct was deliberate, calculated to cause disharmony and likely to undermine management’s capacity to manage the enterprise.  It demonstrated his intention not to be bound by directions in respect of serious matters, if such directions were contrary to his own inclinations.  It is impossible to see such conduct as other than fundamentally inconsistent with his obligations under his contract of employment.  In my view summary determination was justified in the circumstances.

   DAMAGES

9. Although it is not necessary that I do so, I should say something about the quantum of Mr Harrison’s claim for damages for breach of contract.  The case has been conducted upon the basis that certain documents exhibited to Mr Hasemann’s affidavit constituted his contract of employment, notwithstanding the fact that there was a change in the identity of the actual employer.  The terms are primarily to be found in a letter dated 3 April 2003.  Clause 11 provided:

   11.1Either party to this Agreement may terminate your employment with the company provided the following notice is provided:

   Less than one year   1 week

   1 year but less than 3 years                  2 weeks

   3 years but less than 5 years                3 weeks

   5 years plus  4 weeks

   11.2Notwithstanding Clause 11.1 the Company may terminate your employment without notice in the event of misconduct, in which case you will be paid up to the time of dismissal only.

10. In One Steel’s disciplinary protocol cl 5 provided:

    5.1For a termination of employment an employee must be provided with notice on the following scale:

Employee’s period of continuous service with PTM	Period of notice
• Not more than 1 year	At least 1 week
• More than 1 year but not more than 3 years	At least 2 weeks
• More than 3 years but not more than 5 years	At least 3 weeks
• More than 5 years	At least 4 weeks
• Notice is increased by 1 week if the employee is over 45 years of age and has completed two years continuous service with PTM

1. The provision for an extra week’s notice in the disciplinary protocol, but not in the general notice provision, is anomalous.  As Mr Harrison received payment for the fifth week, the anomaly is of no consequence.

2. These provisions explain the discussion which took place between Mr Allard and Mr Bradley after notification of the decision to terminate Mr Harrison’s employment.  He was dismissed summarily for serious misconduct.  The question of notice did not technically arise.  However Mr Allard indicated that he would be given two weeks’ pay.  Mr Bradley said that he was “entitled” to five weeks’ pay.  Mr Allard agreed.  

3. The applicants submit that a reasonable period of notice is nine months.  It is impossible to understand that submission in light of the above provisions.  If the employer could, in any event, have dismissed him pursuant to the letter of appointment with four weeks’ notice or, pursuant to the disciplinary policy, with five weeks’ notice, then an actual loss of nine months’ wages cannot be demonstrated. 

4. One Steel put the matter slightly differently. It submitted that Mr Harrison’s employment had been subject to the award, and that his entitlement should be fixed accordingly. Such entitlement was five weeks’ notice. However the applicants submit that the award was not tendered in evidence, and that its terms cannot be considered. That is a curious submission, given that the applicants pleaded in para 12 of the statement of claim that both the union and One Steel were parties to the award, giving a print reference to it. It is difficult to avoid the conclusion that they intended to incorporate the award in their statement of claim. One Steel admitted the allegation contained in para 12. It may also be that I should take judicial notice of the terms of the award pursuant to Part 4.2 of the Evidence Act 1995 (Cth), although the point has not been argued.

5. The applicants also submit that the award was not part of Mr Harrison’s contract of employment.  However the evidence establishes that his employment was subject to its terms.  There is no suggestion of any more generous terms concerning notice in the contract of employment.  Indeed, I have referred to the relevant term.  The applicants seem to suggest that I should find an implied term in the contract, requiring reasonable notice of termination, although such evidence as there is suggests a quite different term concerning notice.

6. In any event it is clear that at the meeting on 6 May 2008, Mr Bradley and Mr Allard negotiated concerning Mr Harrison’s entitlements.  At TS 45 ll 39 to TS 46 ll 14 the following exchange occurred in Mr Bradley’s cross-examination:

   And Jason Allard said:

   “Under summary dismissal you’re only entitled to your annual leave but at this site we pay out your long service leave as well.  We don’t have to pay you any notice in lieu but we are willing to pay you two weeks.”

   Do you recall that?---Yes, words to that effect, yes.

   All right.  And then you then said:

   “Look, we are not happy with that.  Shane has been here long enough that he should get four weeks and he is over 45 years of age so he should get an extra week which would make it five weeks.  Come on, Jason, there is summary dismissal and then there is summary dismissal.”

   No.  I didn’t say the words, “There’s summary dismissal and there’s summary dismissal.”  What I said was that if Shane is being terminated for serious conduct which is summary dismissal then he could lose his entitlements.  My intentions there were to make sure that Shane got all of his entitlements.  That was the context of that conversation.

   But there was discussion over the period of payment in lieu?---Yes, there was.

   All right.  And you nominated five weeks?---Yes.

7. As I have said, Mr Allard agreed to pay five weeks’ pay in lieu of notice.  I would have expected Mr Harrison’s present claim to be met by a plea of accord and satisfaction.  However that has not been pleaded.  In any event, it is clear that Mr Bradley was seeking to ensure that Mr Harrison would not lose any entitlements which he would have had in the event that he had not been dismissed summarily for serious misconduct.  In other words, the discussion concerned his entitlements in the absence of summary dismissal.  Mr Bradley asserted Mr Harrison’s entitlement, and Mr Allard agreed to pay it.  Both men could reasonably be expected to have known Mr Harrison’s legal entitlements or to have been able to ascertain such information.  Their agreement is adequate evidence as to Mr Harrison’s entitlements had his employment not been summarily determined for serious misconduct.  It is supported by the letter of appointment and the disciplinary protocol.  This evidence offers a reliable guide to any award of damages for wrongful dismissal.  I find that had Mr Harrison’s dismissal been wrongful, he would have been entitled to five weeks’ pay.  He has received that amount.  Damages for breach of contract would therefore be nominal.

   ORDERS

1. The application must be dismissed.  Should the parties require further findings of fact, they are to apply within seven days.

I certify that the preceding three hundred and twenty-two (322) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       17 March 2009

Counsel for the Applicants:	Ms CM Howell
Solicitor for the Applicants:	Carne Reidy Herd Lawyers
Counsel for the Respondent:	Mr JE Murdoch QC and Ms S Moody
Solicitor for the Respondent:	Sparke Helmore Lawyers

Date of Hearing:	3, 4 and 17 July 2008
Date of Judgment:	17 March 2009