Hatwell and Another v Esso
[2018] FWC 2398
•2 MAY 2018
| [2018] FWC 2398 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Applications for unfair dismissal remedies
Mr Michael Gelagotis
v
Esso Australia Pty Ltd
(U2017/11682)
Mr Michael Hatwell
v
Esso Australia Pty Ltd
(U2017/11683)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 2 MAY 2018 |
Applications for unfair dismissal remedies
[1] This decision concerns applications made by Mr Michael Gelagotis and Mr Michael Hatwell for unfair dismissal remedies under s.394 of the Fair Work Act 2009 (Act).
[2] Mr Hatwell commenced employment with Esso Australia Pty Ltd (Esso) in January 2007. He worked as a power and control technician in the electrical maintenance group at the company’s Longford site. He is a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). From early 2014, Mr Hatwell was an elected shop steward.
[3] On 30 October 2017, Esso summarily terminated Mr Hatwell’s employment. He was handed a termination letter which stated that he had engaged in conduct ‘designed to ignore, exclude and isolate employees of contractors on site’, and that he had used ‘offensive and intimidating language towards and about employees of contractors’. The letter also stated that he had been directly involved in a decision to exclude Mr S.P. 1 from the lunchroom, and that he had said to Mr Travis Flens ‘You are doing every cunt’s job now are you?’, and had called him a ‘fucking scab.’2
[4] Mr Gelagotis was employed by Esso as a maintenance technician in January 2014. In mid-2016 he was elected a health and safety representative. He is a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU).
[5] On 30 October 2017, Esso summarily terminated Mr Gelagotis’ employment. He too was handed a termination letter stating that he had engaged in conduct ‘designed to ignore, exclude and isolate employees of contractors on site’. The letter stated that he had initiated discussions to have Mr S.P. excluded from the lunchroom. It further stated that he had used offensive and intimidating language towards and about employees of contractors. 3
[6] Mr S.P. and Mr Flens are employees of MTCT Services Pty Ltd, commonly referred to as ‘UGL’. At Esso’s Longford site, some maintenance work is undertaken directly by Esso maintenance employees such as Mr Hatwell and Mr Gelagotis. These employees’ employment is covered by the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2017 4 (Onshore Agreement). Other maintenance work at Longford is undertaken by employees of contractors. Since 26 June 2017, UGL has been contracted by Esso to provide general, mechanical and electrical maintenance services to Esso, both at Longford and on its offshore platforms. UGL successfully bid for the relevant contract through a tender process initiated by Esso in 2016.
[7] The employment arrangements that apply at UGL have been the subject of controversy. UGL is a wholly owned subsidiary of UGL Operations and Maintenance Pty Ltd. Between September 2010 and July 2017, the contract to provide maintenance services to Esso was held by a joint venture company known as UGL Kaefer Joint Venture (UGLK). The work performed by UGLK’s employees was covered by enterprise agreements that had been negotiated with the AMWU, CEPU and the Australian Workers’ Union (AWU).
[8] In mid-2017, having won the tender for the maintenance contract, UGL made offers of employment to former employees of UGLK who had previously been engaged in undertaking maintenance work for Esso. The employment of UGL employees is covered by the NM Enterprise Agreement 2016 5(NM Agreement). The unions are not covered by this agreement. It contains conditions that are in various respects less beneficial than those which were applicable at UGLK. Since 22 June 2017, the AMWU, CEPU and AWU have maintained a protest line outside the Longford site. Those on the protest line have discouraged former UGLK employees from accepting offers of employment with UGL. Some former employees of UGLK have however chosen to accept such offers. Among them are Mr S.P. and Mr Flens.
[9] Esso’s reasons for dismissing Mr Hatwell and Mr Gelagotis relate generally to certain types of conduct that they were said to have engaged in towards employees of contractors. But they also relate to the particular events of two days.
[10] First, on 15 June 2017, there occurred a communications meeting of Esso maintenance employees in the lunchroom at Longford. During the meeting, there was a discussion about asking Mr S.P. to stop using the Esso employees’ lunchroom. It is not in dispute that Mr Gelagotis raised this issue. Why he did so is contested. Although Mr S.P. was an employee of UGL, he usually ate his lunch in the lunchroom, and had done so for some years while he was employed by UGLK. After the communications meeting, Mr Gelagotis spoke with another Esso employee, Mr Lyndon, about the matter. Mr Lyndon, who was Mr S.P.’s friend, then asked Mr S.P. not to use the lunchroom. Esso concluded that Mr Gelagotis instigated Mr S.P.’s exclusion from the lunchroom because he had recently accepted employment with UGL. It also considered that Mr Hatwell, who chaired the communications meeting, was directly involved in the decision to exclude Mr S.P. from the lunchroom for this reason.
[11] Mr Gelagotis contends that he had legitimate reasons for excluding Mr S.P. from the lunchroom, which were unrelated to Mr S.P.’s acceptance of a UGL contract. Mr Hatwell contends that he simply chaired the communications meeting, during which a range of matters were discussed, and that he had no special involvement in or responsibility for excluding Mr S.P. from the lunchroom.
[12] Secondly, on the afternoon of 31 July 2017, there was an encounter between Mr Hatwell and Mr Flens in the workplace at Longford. Esso contends that Mr Hatwell approached Mr Flens and made the abusive statements referred to above. Mr Hatwell denies making these statements. UGL reported the matter to Esso. The company then commenced an investigation into Mr Flens’ allegations.
[13] On 7 August 2017, Mr S.P. attempted to take his own life. He left a note which stated that a number of Esso employees, including Mr Hatwell and Mr Gelagotis, had ‘incite(d) hatred, segregation (and) isolation between Esso workers and contractors’ (‘the note’). 6 Esso commenced an investigation into Mr S.P.’s allegations.
[14] As a result of its investigations, Esso dismissed Mr Gelagotis, Mr Hatwell, and two other employees who were named in Mr S.P.’s note. It also issued final warnings to three other employees who were referred to elsewhere in the note.
The proceedings and the evidence
[15] The two applications were heard before me over five consecutive days from 29 January 2018. They were heard together, and evidence in the one was considered to be evidence in the other to the extent it was relevant. Thirty-seven witness statements were filed. Mr Gelagotis and Mr Hatwell gave evidence on their own behalf. The company led oral evidence from Mr Flens however Mr S.P. did not give evidence. He was not available to do so, on medical grounds. 7 Ms McMillan, Esso’s human resources client contact, and Mr Zvirbulis, HR/IR manager for production, interviewed Mr S.P. and his wife (Mrs S.P) about the allegations in his note. A transcript of this interview was annexed to Ms McMillan’s witness statement.8 Mr S.P.’s wife filed a witness statement, and was to be available for cross-examination, but ultimately did not attend the proceedings. An affidavit was filed by a solicitor from Clayton Utz, Ms Winckworth, attaching the statement of Mrs S.P. Ms Winckworth deposed that she had spoken with Mrs S.P. on the telephone, and that Mrs S.P. had confirmed that the contents of her statement were correct.
[16] I make some preliminary remarks about the evidence.
[17] First, there was debate about what use the Commission should make of Esso’s transcript of interview with Mr S.P. and Mrs S.P, and whether any regard at all should be had to Mrs S.P.’s statement. I accepted the affidavit of Ms Winckworth, and the transcript of Esso’s interview with Mr S.P. and Mrs S.P., and indicated that I would give consideration to the parties’ submissions as to the weight I should accord to them.
[18] The applicants acknowledged in their closing submissions that the Commission could have regard to Esso’s interview with Mr S.P. and Mrs S.P., because of Ms McMillan’s sworn evidence about it. They contended however that Mr S.P.’s answers should not be regarded as sworn evidence, but rather as untested, and given less weight accordingly. In relation to the witness statement provided by Mrs S.P., the applicants contended that she had originally made herself available for cross-examination, and then on the day for her to appear in the Commission had tendered a medical certificate stating only generally that it would be detrimental for her to attend the proceedings. The applicants submitted that, unlike the position in relation to Mr S.P., there was no material that explained the basis for the doctor’s conclusions, and it was therefore not established that Mrs S.P. was unavailable to give evidence. Had the Evidence Act 1995 (Cth) applied, it is doubtful that her statement would have been admissible, although there is a basis for a contrary contention in light of the evidence of Ms Winckworth. 9
[19] Esso relied on the evidence of both Mr S.P. (through the transcript attached to Ms McMillan’s statement) and Mrs S.P. (through Mr Winckworth’s affidavit) in relation to the allegations that Mr Hatwell and Mr Gelagotis engaged in ‘conduct designed to ignore, exclude and isolate employees of contractors on site’, and that they used ‘offensive and intimidating language towards and about employees of contractors.’
[20] I have had regard to the evidence of Mr S.P., but have relied on it only to a limited extent in making my factual findings. Mr S.P.’s note is clearly relevant, as it prompted one of Esso’s investigations. The applicants did not object to the Commission’s use of the existence of the note as a relevant fact, but contested the truth of the statements contained in the note. However, Mr S.P.’s information is not relevant to Mr Hatwell’s interaction with Mr Flens, or to what occurred during the communications meeting on 15 June 2017. As to the evidence of Mrs S.P., I have not relied on it in reaching my findings of fact.
[21] The conduct of Mr Hatwell and Mr Gelagotis that I have found below to be substantiated is based on the evidence of the applicants, Mr Flens and the other UGL witnesses, Esso employees who were present at the communications meeting, and evidence of the surrounding circumstances. Where there is a contest on the evidence as between particular witnesses (in particular, Mr Hatwell and Mr Flens), I will explain below whose evidence I prefer and why.
[22] Secondly, the applicants objected to certain evidence about the industrial context of the present matter. In particular, objections were made to certain paragraphs of Ms McMillan’s statement about activities on the protest line outside the Longford site. The objections were based principally on relevance. I have received this evidence - ‘admitted’ seems inapt to say, in the setting of a tribunal not bound by the rules of evidence under its statute. I have done so because I considered it to be relevant. Evidence of circumstances surrounding facts at issue can provide a basis for drawing logical inferences. However, I emphasise that the applicants were not said to have been involved in the protest line. I note also that the applicants elsewhere contended that the broader context was relevant to the question of harshness, and that the industrial disputation associated with UGL’s employment arrangements was dividing the workplace and had created tension. 10
[23] Thirdly, it should be noted that the applicants’ direct evidence has four primary sources: the answers they provided to Esso during its investigations, the transcript of which was put in evidence before the Commission; the applicants’ initial witness statements prepared for these proceedings; their subsequent ‘reply’ statements; and their oral evidence before the Commission. Esso contended that the accounts provided by the applicants were not consistent and in various respects dishonest. The applicants rejected this, and contended that any differences between the accounts of each of the applicants are explainable, including because of the generality of the allegations first put to them by Esso. In the course of setting out my factual findings in these reasons, I will address certain inconsistencies in the applicants’ evidence, particularly in relation to the evidence of Mr Gelagotis.
[24] Fourthly, I note more generally that, as an administrative, quasi-judicial tribunal, the Commission is required to take into account relevant considerations, and to ignore irrelevant considerations. 11 Relevant considerations are found in ‘material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.’12 If the material has probative value the weight to be attached to it is a matter for the decision-maker. The Commission should consider and carefully weigh all relevant material, including circumstantial evidence, and where appropriate draw reasonable inferences.
[25] Finally, the Commission is not bound by the rules of evidence, 13 although it tends to follow them.14 Hearsay may be relied on if it is shown to be probative of a fact in issue, however it would not ordinarily be relied on if the opposing party is denied an opportunity to contradict the material by presenting contrary evidence.15 Ultimately, the Commission is obliged to perform its functions in a manner that is fair and just.16
Initial matters to be considered
[26] Section 396 of the Act requires that, before considering the merits of an unfair dismissal application, the Commission must decide four matters. There is no dispute between the parties, and I am satisfied, of the following. First, the two unfair dismissal applications were made within the 21 day period required by s.394(2) of the Act. Secondly, Mr Hatwell and Mr Gelagotis are persons protected from unfair dismissal, as an enterprise agreement applied to their employment at Esso (s.382). Thirdly, the dismissals were clearly not cases of genuine redundancy. Finally, no question of compliance with the Small Business Fair Dismissal Code arises.
The industrial situation at Longford
[27] These applications concern dismissals for misconduct which occurred in a particular industrial context. This context needs to be considered simply in order to understand the parties’ competing contentions. The context may also be evidentially relevant, such as for the purposes of drawing inferences. At the same time, the applicants rightly contend that the focus of the Commission’s consideration of the applications must be on what Mr Gelagotis and Mr Hatwell actually did.
[28] Mindful of this, I proceed briefly to address the broader commercial and industrial background, before turning to the particular allegations against the applicants and my consideration of whether they are substantiated. In summarising chronologically the industrial background, I make brief reference to other significant incidents, as the sequence of events will be of relevance.
[29] In January 2017, Esso awarded a five year contract to UGL to undertake maintenance services at Longford. It announced the award of the contract to Esso employees and union delegates in February 2017. 17 From March to May 2017 there were certain negotiations between UGL and the unions for an enterprise agreement to cover the employees who would perform the work under the new contract.18 The unions’ position was that the terms and conditions of a new enterprise agreement should reflect the conditions previously afforded to UGLK employees.
[30] Esso’s position is that in May 2017, the unions commenced an ‘industrial campaign’ against it and UGL. On 19 May 2017, Mr Mooney, CEPU organiser, sent a text message to a UGL employee stating ‘War is coming.’ 19 The text message contained a hyperlink to an ETU (CEPU) Facebook post of the same date that shared a Gippsland Times news article entitled ‘contractor wants to reduce offshore wages’.
[31] On 29 May 2017, the ETU, AMWU and AWU sent a message to members, bearing the logos of each union and providing contact information for relevant organisers, stating (amongst other things):
‘It is the view of all three Unions that NO Member should be accepting the job offer on the current terms and conditions that are on offer …
If you accept these jobs on UGL's MTCT Agreement you are UNDERMINING all the hard work the Unions and past Members have worked for. Think of the legacy that you are leaving behind …
If you have signed a contract of employment you should withdraw your agreement to sign onto this crap deal and join the fight for a fair deal. If you are still working for UGL and you are offered a contract, you should reject it and contact your Union - don't be a sell out because you will never get back what you have agreed to sell off and you will create a precedence (sic) for other workers in the future.’ 20
[32] In my view it is clear that the unions attempted to discourage UGLK employees from accepting UGL’s offers of employment. 21 Their position was that no member should accept the job offer and that to do so was a ‘sell out’.22
[33] On 9 June 2017, Mr S.P. signed an offer of employment with UGL. 23
[34] On 14 June 2017, Mr Matthew McDonald, an Esso maintenance employee and AMWU delegate, sent an email concerning the employment arrangements at UGL to Esso maintenance and operations employees, including Mr Hatwell and Mr Gelagotis. 24 It attached clauses from a UGL enterprise agreement for distribution to ‘all offshore Esso employees so they understand the position UGL-K employees are in, which will at some point affect all Esso Employees.’ The email stated that ‘the three Unions are not letting this slip they have got media campaigns well underway and a visual presence will come soon enough’. It further stated that the three unions ‘reiterate to all UGL-K members not to sign this crap deal because you would be selling 25 years of hard fought conditions down the drain.’
[35] On the following day, 15 June 2017, the communications meeting referred to above took place, at which there was discussion about asking Mr S.P. not to use the Esso employees’ lunchroom. I examine the events of that day further below.
[36] On 20 June 2017, employees of Esso at Longford stopped work, 25 evidently in support of a union rally against UGL and Esso that had been organised in Melbourne that day.26
[37] On 21 June 2017, Esso investigated the previous day’s walk off and interviewed participants for the purposes of potential disciplinary action. Mr Hatwell lodged a harassment complaint against Ms McMillan in respect of her interview with a Mr Alex Loppardi, an Esso mechanical fitter. Mr Hatwell claimed that Ms McMillan breached Esso’s harassment policy during this interview. 27 This was the second time Mr Hatwell had initiated a complaint under Esso’s harassment policy, the first being in 2015 when Mr Hatwell alleged breaches of the policy by the Longford plant manager.28
[38] On 22 June 2017 a protest line appeared near the entrance to the Longford site. Union flags were placed along the perimeter of Garretts Road, adjacent to the Longford site. 29 A group of people gathered, including former UGLK workers who had not accepted employment with UGL.30 Officials of the CEPU, AWU and AMWU were also present.31
[39] Photographs produced to the Commission showed the presence of slogans and statements such as ‘Stop Esso's UGLy plan’. Such references appeared on union social media pages. 32 A dedicated Facebook page entitled ‘Esso/Longford UGLy dispute’ was created.33 In my view it is clear that the protest line was organised by the unions.34
[40] On the same day that the protest line emerged, Mr Andre Kostelnik, the Longford Production Operations Manager, sent an email to all Esso employees and contractors concerning Esso’s Harassment Policy. It contained a hyperlink to the full policy, and relevantly stated:
‘We have become aware that a community information line has been formed outside Longford Plants …
We would also like to take this opportunity to remind all employees and contractors of the Company’s Harassment in the Workplace Policy. If you observe any behaviour or comments that may be considered harassing or intimidating, you are responsible for reporting it to your supervisor or HR.’ 35
[41] UGL’s contract to provide maintenance services to Esso commenced on 26 June 2017. 36 By that time, it was evident which individuals had accepted employment with UGL to work at Longford, as they were entering the Longford site.
[42] On 30 June 2017, Mr Hatwell, Mr Gelagotis and other Esso employees received written warnings in respect of their participation in the walk off on 20 June 2017. 37 The warnings issued to both Mr Hatwell and Mr Gelagotis each contained the following direction:
‘…It remains a condition of your ongoing employment that you consistently meet the Company’s expectations. Failure to comply with these directions and those expectations could lead to further disciplinary action, leading up to and including termination of employment. In particular, you must comply with the following requirements:
• You must comply with all Company policies, procedures and rules;
• You must perform your duties in a professional and diligent manner; and
• You must comply with all reasonable and lawful directions given to you.’
[43] On 3 July 2017 a very large inflatable rat appeared outside the entrance to the Longford site. 38 A sign appeared stating ‘Don't be Scabby the Rat.’ Another sign listed the names of those who had accepted UGL offers of employment.39 Among those named were Mr S.P.40 and Mr Flens,41 as well as Mr Henness, UGL’s mechanical supervisor, and Mr Little, a UGL mechanical fitter.42 Photographs of the above were tendered in evidence before the Commission.43
[44] There was evidence that some people on the protest line had shouted at UGL employees who drove through on their way to or from work, 44 using language such as ‘dick head’, ‘scab,’ ‘dog’, ‘grub’, ‘scum’ or ‘coward’.45 There was evidence that some had hit cars with placards46 and approached cars with UGL employees inside, pointing at them and calling out ‘scab’.47 Mr Henness gave evidence that he was stopped in a line of traffic held up by the picket line and approached by two people who opened his car door and said ‘I know where you live and I know where your family are, we know what you’ve been doing and we’ll be watching you’.48 I reiterate that the applicants were not said to have been involved in the protest line.
[45] On 21 July 2017, the Federal Court issued orders against the three unions and three officials of those unions, requiring them to remove the inflatable rat and the signs naming the persons who had accepted employment with UGL. 49 The orders also prohibited the unions from threatening, obstructing, harassing or intimidating UGL employees.
[46] Esso led evidence of various instances of inappropriate behaviour about or towards UGL employees since 2017 (aside from the conduct of the applicants that is at issue in these proceedings). Esso believes, but cannot prove, that Esso employees have been involved in the following: unexplained blocking out of UGL employees’ communication over site radios; 50 inappropriate graffiti and signage appearing in the workplace referring to UGL employees, including pictures of the inflatable rat;51 and a painted sign appearing with the words ‘Humans Only, No Scabs’.52 However, these matters have not been explained. It is not necessary or appropriate to delve into these various allegations. The focus of these proceedings must remain on the conduct of the applicants, and so much of the surrounding circumstance as can be safely proved.
[47] Esso contended that Mr Gelagotis and Mr Hatwell were part of a union ‘campaign’ against UGL and employees who accepted contracts with it. The applicants contended that it has not been established that there was such a campaign or that they had any part in it. In my view, it is not necessary for me to determine whether the union’s position and conduct in relation to the UGL employment arrangements constituted a ‘campaign’. The evidence of the applicants and certain other witnesses addresses their understanding of the unions’ position; this can speak for itself, without the overlay of any characterisation. I consider this evidence below. I note that the applicants’ submissions summarise the broader context as follows: UGL invited the former UGLK workforce to re-apply for their former jobs on inferior terms and conditions, including significantly lower wages; and that in response, an ongoing protest camp was established outside the Longford site from late June 2017. 53
[48] It has not been alleged that either Mr Hatwell or Mr Gelagotis had any responsibility for the behaviour of any person on the protest line or the conduct of the protest line more generally. The activities on the protest line are relevant to the context in which the allegations against the applicants were made. Whether Mr Hatwell and Mr Gelagotis supported the position of the protestors and the unions is a question of relevance. However, their conduct is not to be judged by the behaviour of others.
[49] Finally, it is uncontroversial that in the months of June and July 2017, the working environment between Esso maintenance employees and contractors at Longford was tense, and that this tension was related to the industrial disputation between UGL and the former employees of UGLK and their unions.
The investigations
[50] On Monday 7 August 2017, UGL’s site superintendent, Mr Frank Tabone, reported to Esso Mr Flens’ allegation about his encounter with Mr Hatwell on 31 July 2017, during which Mr Flens claimed that Mr Hatwell had called him a ‘fucking scab.’ 54
[51] Later that day, UGL made a further report to Esso, stating that another UGL employee, Mr S.P., had attempted to take his own life. On 8 August 2017, Esso was provided with a copy of Mr S.P.’s note, in which he stated that certain Esso employees, including the applicants, had ‘incite(d) hatred, segregation, isolation between Esso workers and contractors’. 55
[52] Ms Kirsteen Butler, Esso’s human resources manager, gave evidence that on 8 August 2017 she commenced an investigation in relation to the allegations of Mr Flens. The same day, Mr Flens was interviewed by Ms McMillan and Ms Smith. The interview was transcribed. 56 Ms Butler later directed Ms McMillan and Mr Zvirbulus to investigate the allegations in Mr S.P.’s note. Ms Butler ultimately merged the two investigations, as both concerned allegations of mistreatment of UGL employees by Esso employees.57
[53] Esso was not immediately able to speak to Mr S.P. concerning the allegations in his note, due to his medical condition. Ms Butler gave evidence that she decided that the appropriate course of action was to suspend the seven employees referred to in Mr S.P.’s note on full pay until Esso could better understand what may have occurred. 58
[54] On 9 August 2017, Mr Hatwell, Mr Gelagotis and four of the other five Esso employees referred to in Mr S.P.’s note were suspended. The other named employee was suspended on 10 August 2017. Mr Hatwell and Mr Gelagotis received letters from Mr David Anderson, the plant manager, stating that they were suspended while the company investigated allegations concerning ‘possible harassment of UGL contractors’. 59The letters did not refer to Mr S.P., Mr Flens, or any particulars of the alleged harassment. Mr Hatwell gave evidence that after he was stood down, he received some emails from Esso concerning allegations made by Mr Flens however he did not know what those allegations were.
[55] On 10 August 2017, Mr Frank Casella, an Esso operator, sent a text, apparently mistakenly, to Mr Mick Triantafyllou, the Esso safety coordinator, saying:
‘The most important thing here is that no one admits to anything or signs any statements all there (sic) evidence is here say (sic) and not admissible. You’re only convicted on the evidence you give.’ 60
[56] According to Mr Triantafyllou, on 14 August 2017 Mr Casella said to him that the message was sent by mistake, that he should delete it and that it ‘had nothing to do with the current situation of bullying.’ 61 I note that the applicants objected to a paragraph in Ms Smith’s statement referring to this matter; however Mr Triantafyllou gave direct evidence of it through his statement, and he was not required for cross-examination. I consider it to be of some relevance to the industrial context, although my findings do not rely on it.
[57] On 15 August 2017, Mr Hatwell was interviewed by Ms Smith and Mr Peter McMillan from Esso in relation to the allegations made by Mr Flens. Mr Hatwell was accompanied by Mr Mooney, ETU Organiser. The interviewed was transcribed. 62
[58] On 30 August 2017, Mr Hatwell attended a second interview with Ms McMillan and Mr Zvirbulus, accompanied by Ms Weber, an ETU lawyer. Before the start of the interview, Mr Hatwell was given a document headed ‘summary of issues’, which referred to ‘allegations that [Mr S.P], UGL contractor, was harassed, bullied and intimidated by Longford Plant employees.’ It stated that the subject of investigation included the ‘manner of interactions between Esso employees and [Mr S.P.] and [Mrs S.P]. before and after the UGLK to UGL contract change over; allegations of [Mr S.P.] being excluded from the maintenance lunchroom by Esso employees; conduct of Esso employees when interacting with [Mr S.P.] at the tool store; and Esso employees engaging in conversations about ‘scabs’, rats’, ‘dogs’ or similar terms’. 63 The interview was transcribed.64
[59] On 31 August 2017, Mr Gelagotis was interviewed by Mr Zvirbulus and Ms McMillan about the allegations raised by Mr S.P. Mr Gelagotis was accompanied by Mr Barry Terzic from the AMWU. The interview was transcribed. 65
[60] On 12 September 2017, Mr S.P. and Mrs S.P. were interviewed by Ms McMillan and Mr Zvirbulus. As noted earlier, that interview was also transcribed. 66Mr S.P. and Mrs S.P. provided certain additional details of the allegations raised in Mr S.P.’s note. I address some of this evidence further below.
[61] From August to October 2017, Mr Zvirbulus and Ms McMillan conducted some 24 interviews, including with the other Esso employees named in Mr S.P.’s note, in relation to the allegations raised by Mr S.P. 67
[62] On 17 October 2017, Mr Hatwell and Mr Gelagotis each received a letter from Ms Butler, setting out formal allegations to which they were asked to respond. 68 The letter to Mr Hatwell stated:
‘1. You were involved in conduct designed to ignore, exclude and isolate employees of contractors on site. In particular, you:
a) gave contractors the ‘cold shoulder’ or refused to make eye contact with them; and
b) were involved in the making of a decision to exclude [Mr S.P.] from the lunch room.
2. You made harassing, intimidating or bullying remarks to employees of contractors. In particular you:
a) made intimidating and bullying remarks to Travis Flens on 31 July 2017 in relation to working on a rostered day off (RDO); and
b) aggressively quizzed Rod Little about his working conditions.
3. You used offensive and intimidating language towards employees of contractors. In particular on 31 July 2017 you called Travis Flens a ‘fucking scab’, a ‘dog’ a ‘grub’ and a ‘scabby contractor’.’ 69
[63] The letter to Mr Gelagotis put to him the following allegations:
‘1. You were involved in conduct designed to ignore, exclude and isolate employees of contractors on site. In particular, you:
a) ignored employees of contractors and made comments in words to the effect of ‘you'll probably find that people around here won't talk to you’ and ‘no one's going to talk to you like we're not going to talk to [Mr S.P.’; and
b) initiated the making of a decision to exclude [Mr S.P.] from the lunch room.
2. You used offensive and intimidating language towards and about employees of contractors. In particular, you used the words ‘scab’, ‘scum’, ‘dog’ and ‘grub’.’ 70
[64] The letters to both men sought from them written responses to the allegations. On 20 October 2017, the AMWU sent a response to Esso on behalf of Mr Gelagotis, denying the allegations. 71 Mr Hatwell responded by letter dated 24 October 2017, denying the allegations against him.72
[65] On 30 October 2017, Mr Hatwell and Mr Gelagotis were handed letters of termination. The letter to Mr Hatwell stated:
‘The Company's investigation has concluded that your behaviour and conduct was not acceptable, and contributed to creating a hostile & intimidating workplace, in breach of the Company's Harassment in the Workplace Policy.
Your behaviour included involvement in conduct designed to ignore, exclude and isolate employees of contractors on site, and use of offensive and intimidating language towards and about employees of contractors. In particular the Company found that you were directly involved in the decision to exclude [Mr S.P.] from the lunchroom and that on 31 July 2017 you said to Travis Flens ‘You're doing every cunt's job now are you?’ and ‘You're working your RDO today, oh that's right, you fucking traded it off, you don't have an RDO, you're a fucking scab.’ 73
[66] The letter to Mr Gelagotis stated:
‘The Company's investigation has concluded that your behaviour and conduct was not acceptable, and contributed to creating a hostile & intimidating workplace, in breach of the Company's Harassment in the Workplace Policy.
Your behaviour included involvement in conduct designed to ignore, exclude and isolate employees of contractors on site, including by initiating discussions with Mick Hatwell and Shane Bennett seeking to have [Mr S.P.] excluded from the lunchroom, and the use of offensive and intimidating language towards and about employees of contractors.’ 74
A valid reason and the standard of proof
[67] Section 387(a) of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct. The principles that are relevant to the consideration of this concept are well-established. A valid reason is one that is ‘sound, defensible and well-founded.’75 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in its position.76 The question the Commission must address is whether there was a valid reason, in the sense both that it was a good reason and a substantiated reason.
[68] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.77 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.78
[69] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw, 79 the nature of the relevant issue necessarily affects the ‘process by which reasonable satisfaction is attained’80 and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’81 or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.82 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.83
[70] The rule in Briginshaw has elsewhere been described as reflectinga conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 84 In Greyhound Racing Authority, Santow JA noted:
‘… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal]’. 85
[71] The ‘level of comfort’ referred to means that the finder of fact must ‘feel an actual persuasion of the occurrence or existence of the fact in issue’; the ‘mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.’ 86
[72] Although there was broad agreement about the principles applicable to the standard of proof and evidence, there was some disagreement as to how these principles applied in the present case. Esso contended that here it sought to prove that the applicants’ conduct had breached its policies: there is no question of fraudulent or criminal conduct. It contended that, if allegations attracting the Briginshaw standard were placed on a spectrum, this case would be set at a ‘low level’. 87
[73] The applicants submitted that they are accused of serious misconduct, and that the courts have recognised that employees enjoy the presumption that ordinarily employees do not commit serious misconduct. 88 They say that this presumption is not lightly rebutted. The applicants, like Esso, submitted that the evidence must actually persuade the Commission that the alleged conduct occurred, but contended that the alleged conduct is serious, not a mere breach of policy.
[74] In considering whether there is a valid reason for termination, it is not ordinarily necessary for the Commission to determine whether the conduct was sufficiently serious to constitute serious misconduct. In the present matter, there is a question about whether, if the conduct fell short of serious misconduct, the company was required to apply the procedure in clause 22 of the Onshore Agreement, and how this affects the fairness or otherwise of the dismissals. I deal with this further below.
[75] I agree with the applicants’ contention that they have been accused of serious misbehaviour, and that this affects the application of Briginshaw. Irrespective of whether their behaviour constituted serious misconduct, the applicants were summarily dismissed in connection with serious allegations concerning mistreatment of employees of contractors on site. I do not accept Esso’s contention that the present matters warrant the application of a ‘low level’ on the Briginshaw ‘spectrum’. Of course, this does not mean that Esso carries a higher or criminal standard of proof.
[76] I note that the Act requires me to consider whether in each of these two matters there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer. Esso has invoked several valid reasons connected to the conduct of each of Mr Hatwell and Mr Gelagotis.
I shall now examine them to determine whether I am actually persuaded that the applicants committed some or all of the relevant conduct, and whether any such conduct constitutes a valid reason.
Was there a valid reason for Mr Hatwell’s dismissal?
[77] The termination letter given to Mr Hatwell on 30 October 2017 stated that Esso’s investigations had concluded that his behaviour and conduct was not acceptable and contributed to creating a hostile and intimidating working environment, in breach of the Company’s Harassment in the Workplace Policy.
[78] In their final written submissions, Mr Hatwell and Esso each addressed the reasons for dismissal set out in the termination letter (see [65] above), but in different ways, apparently reflecting different interpretations of it. Esso addressed two reasons for Mr Hatwell’s dismissal, which were stated generally and then particularised in the letter as follows: that he was directly involved in the decision to exclude Mr S.P. from the lunchroom, and that he abused Mr Flens in the manner alleged. 89
[79] Mr Hatwell’s submissions understand the reasons for dismissal to be fourfold. In his final submissions, Mr Hatwell addresses as a separate reason for dismissal ‘conduct designed to ignore, exclude and isolate employees of contractors’. He submits that this ‘generalised and ambiguous statement’ did not reflect specific conclusions about discrete acts of alleged misconduct contained in the allegations letter. 90 The termination letter also refers generally to Mr Hatwell using offensive language towards and about employees of contractors. I agree with Mr Hatwell that the termination letter can be read as identifying as reasons for dismissal conduct of a general kind, going beyond the particulars concerning the incident with Mr Flens and the exclusion of Mr S.P from the lunchroom. This general conduct was not the focus of the proceedings, but I shall deal with it briefly.
[80] In its final submissions Esso did not appear to press any contention that Mr Hatwell engaged in conduct designed to ignore, exclude and isolate employees of contractors, other than in relation to Mr S.P. I note that Mr Henness had said in his statement that on 31 July 2017, Mr Hatwell did not acknowledge or make eye contact with him. However, this is one allegation of conduct on a single day, and in my view there is nothing to suggest that Mr Hatwell would ordinarily have engaged with Mr Henness.
[81] To the extent that Esso maintained any broader allegation that Mr Hatwell ignored or excluded, or gave the ‘cold shoulder’ to Mr Henness or contractors more generally, I find it unsubstantiated.
[82] As to the proposition that Mr Hatwell ignored Mr S.P., the reliable evidence is scant. During his interview with Ms McMillan and Mr Zvirbulis, Mr S.P. said, in response to a prompt from his wife as to whether Mr Hatwell was dropping his head, ‘Hats was yeah, he wouldn’t even look at me, yeah.’ 91 This is of course a very general allegation. It is not known how often the conduct is said to have occurred, or what the circumstances of the various occasions are said to have been. Did Mr S.P. claim that Mr Hatwell would walk right past him and look away; or speak to him in the tool shed where he worked but not look at him while doing so? Or that Mr Hatwell just avoided him? It is not known whether Mr S.P.’s statement is a reflection of perception or fact. Nor is it possible, assuming it were to be a fact, to assess how serious the conduct was.
[83] Against this the Commission has heard Mr Hatwell’s sworn evidence. He explained in his second witness statement that he had very little interaction with Mr S.P. He denied deliberately dropping his head or avoiding eye contact with Mr S.P. 92 He stated that he had no idea how Mr S.P. could believe that he had done so.93
[84] In my opinion, the proposition that Mr Hatwell ignored Mr S.P. is not substantiated.
Was Mr Hatwell directly involved in a decision to exclude Mr S.P. from the lunchroom?
[85] Esso contends that Mr Hatwell was directly involved in a decision to exclude Mr S.P. from the Esso maintenance lunchroom, and that this constitutes a valid reason for his termination. 94
[86] It is necessary to examine the evidence of the circumstances surrounding Mr S.P. being asked not to use the lunchroom. It was common ground that on 15 June 2017 there was a communications meeting with Esso maintenance employees involving some 40 to 50 employees, and that Mr Hatwell was the chair of the meeting. Mr Hatwell’s evidence was that the purpose of the meeting was to provide Esso employees with feedback on recent delegates’ meetings, as well as an update on Federal Court proceedings. 95
[87] It is also uncontested that during the communications meeting, the situation of Mr S.P. was raised. Mr Hatwell gave evidence under cross-examination that he understood the question at issue to be whether Mr S.P. should be excluded from the Esso maintenance lunchroom. 96 It will be recalled that Mr S.P. had signed a contract with UGL six days earlier. Mr Hatwell and Mr Gelagotis said that by the time of the communications meeting, they knew that Mr S.P. had accepted an employment offer with UGL (although in cross-examination Mr Hatwell said he did not officially know this until 23 June 2017).97
[88] It will also be recalled that the communications meeting occurred one day after Mr McDonald sent an email to Esso maintenance union members stating that the three unions ‘reiterate to all UGL-K members not to sign this crap deal because you would be selling 25 years of hard fought conditions down the drain.’ 98 Mr McDonald attended the communications meeting and took brief notes of topics discussed. His notes record one topic of discussion being ‘UGL feedback’.99
[89] Mr Hatwell was asked in cross-examination about this reference in Mr McDonald’s notes. He said that there had been discussion about the fact that no agreement had been reached between the unions and UGL and that the negotiations had not progressed. 100 Another issue recorded in Mr McDonald’s notes was ‘Issue raised, contractors in lunchroom, comments around what does the sign say on the door’.101
[90] It is not contested that Mr Gelagotis proposed that S.P. not be allowed to use the Esso employees’ lunchroom. Precisely what Mr Gelagotis said, and why he said it, is contested. As I discuss further below, Mr Gelagotis gave evidence to the Commission that he had a number of reasons for raising this issue at the communications meeting. He stated that he believed that all contractors should be asked not to use the lunchroom; and that, as two former apprentices had been asked to leave earlier in the year, it would be fair to ask Mr S.P. to leave also. His evidence was that the lunchroom was for Esso maintenance workers to discuss work and industrial matters. And he gave evidence that he was concerned about allegedly threatening statements that Mr S.P. had made, and that he did not want something bad to happen. Mr Gelagotis told the Commission that during the communications meeting, he raised concerns about the risk of violence if Mr S.P. continued to use the lunchroom. I return to these explanations further below in considering whether there was a valid reason for Mr Gelagotis’ dismissal.
[91] When Mr Gelagotis was first interviewed by Esso about the communications meeting, he said that he had made a comment about Mr S.P.’s presence in the lunchroom, and that, given the two apprentice–contractors had been asked to leave earlier in the year, ‘if the shoe fits for one it should fit for all’. Mr Gelagotis said in the interview that his comment was directed at all contractors, although there do not appear to have been other contractors using the lunchroom at that time. Of relevance to the position of Mr Hatwell was that Mr Gelagotis told the Esso representatives in his first interview that there had been a ‘motion’ (‘my motion’) in relation to this matter, 102 and that there was ‘something granted’.103 This suggested to Esso that a decision was taken at the meeting that Mr S.P. should be excluded from the lunchroom. For Esso, this had particular implications for the culpability of Mr Hatwell, given his role as chair of the meeting.
[92] When Mr Hatwell was interviewed by Esso about the communications meeting, he said that Mr Gelagotis raised the issue concerning Mr S.P.’s presence in the lunchroom, and that he understood that someone had later told Mr Robert Lyndon about the matter, who had in turn asked Mr S.P. not to use the lunchroom. This too will be discussed further below.
[93] It is clear that there was a discussion at the meeting about the issue raised by Mr Gelagotis. It lasted for 5 to 10 minutes. 104 Mr Hatwell stated that neither he nor the broader group made any decision about Mr S.P.’s presence in the lunchroom.105 He stated that usually, if a decision is to be made, a vote occurs to ensure that members support it; however on the question raised by Mr Gelagotis, there was no vote. He said that he had no further discussions with anybody about Mr S.P. or the lunchroom until after he was suspended on 9 August 2017. Mr Hatwell maintained that the role he played at the communications meeting was simply to chair it, as the ETU delegate.106
[94] In cross-examination Mr Hatwell said as follows:
“Mr Gelagotis has got up and said something?---Yes.
Possibly others, we don't know. They've said, "We've got a concern about Mr [S.P.] being in the lunch room". What happened then?---There was a general concern and, you know, to be honest, Mick [Gelagotis] didn't really talk directly about anyone, so it was – but, no, he was - - -
Sorry, let's work through that. There was a general concern from Mick [Gelagotis]; a general concern from Mick?---About UGL contractors in our lunch room.
You see, Mr – that's - - -?---I know that's not what my statement says, but that was really what it was about, and my understanding of that later on was it.
That was really what it was about. It was really about excluding UGL contractors, wasn't it?---Yes.” 107
[95] According to Mr Small’s evidence, Mr Hatwell had called for other agenda items and that Mr Gelagotis then raised an issue and there was group discussion ‘about [Mr S.P.] being in the lunchroom’. 108 Mr Small denied that Mr Hatwell was controlling the conversation.109 He said that Mr Hatwell invited others to make a contribution to what had been raised by Mr Gelagotis.110 Mr Lyndon also denied that Mr Hatwell, as chair, controlled the meeting.111 Mr Hatwell’s description of his role was that he was providing feedback, rather than raising issues.112
[96] It was put to Mr Hatwell that he knew, as chair of the meeting, that after Mr Gelagotis had raised the issue of Mr S.P.’s use of the lunchroom, the next step would be for somebody to tell Mr S.P. that he was excluded from the lunchroom. Mr Hatwell denied this, and said that no decision was made at the meeting. 113 The exchange extracted above continued:
“When you say there was no decision made, what I suggest to you is that there was a discussion and it was clear, I suggest, that your position was that delegates had raised something, it sounded fair enough. It could go off and be worked out outside the meeting?---I wasn't opposed to that.
No, you weren't opposed to it?---I wasn't. I didn't - - -
We've got there. You weren't opposed to it and you made that crystal clear to the meeting, didn't you?---No.
Why have you just told the Commission that you weren't opposed to it? You said nothing?---I wasn't opposed to it. I didn't know all the information so I wasn't going to act on it. I didn't ask people to take a vote on whether that should be the case, which was what we would normally do if we were going to make a decision like that. But I wasn't personally opposed to it. I didn't eat my lunch there. To be honest with you I didn't – it wasn't a big deal to me whether he was in the lunch room or not. It was a concern by other people, Mick [Gelagotis], and so I wasn't opposed to it because I didn't eat my lunch there.
You let - - -?---So I left that meeting with no decision made and no idea what had happened afterwards.” 114
[97] Esso contended that regardless of the formality or otherwise of the decision-making process, the Commission ought to conclude that Mr Hatwell was actively involved in a decision or process to ‘grant’ (to use Mr Gelagotis’ word) the exclusion of Mr S.P. from the lunchroom. Mr Hatwell was the ETU delegate. He chaired the meeting. For Esso, he must bear some responsibility for the conduct of the meeting and the things that occur as a result of the meeting. Esso submitted that, at the least, the process followed in the meeting led inevitably to steps which meant Mr S.P. was to be excluded from the lunchroom, and that Mr Hatwell agreed with the proposed course of action and did nothing to stop this.
[98] However, in my view, the evidence does not establish that Mr Hatwell played a significant role in excluding Mr S.P. from the lunchroom. He chaired the meeting and was involved in the discussion of this issue. He understood the proposal to be that UGL contractors should be asked not to use the lunchroom. The only contractor identified at that point was Mr S.P. Mr Hatwell was not opposed to the proposal. However he did not have all the information and so ‘wasn’t going to act on it.’ 115 I accept this evidence.
[99] Mr Hatwell could perhaps have used his authority and influence (the extent of which is not established) to prevent further discussion of Mr S.P.’s exclusion from the lunchroom, but did not do so. Whether he should have done so brings into consideration the question of the legitimacy of the request to ask Mr S.P. not to use the lunchroom, which I consider in detail further below in assessing the conduct of Mr Gelagotis. As I will later explain, in my opinion it was not legitimate. However, I am not persuaded that Mr Hatwell’s role in the exclusion of Mr S.P. from the lunchroom was significant.
[100] Mr Hatwell did not instigate, organise or encourage the proposed exclusion of Mr S.P from the lunchroom. He understood that a proposal had been raised to exclude Mr S.P. from the lunchroom, 116 and that there was a concern about UGL contractors in the lunchroom.117 He was not opposed to what had been raised. His failure to take any action to stop the proposal being acted upon was deserving of censure. But it is not established that Mr Hatwell had any active role in raising or implementing the proposal. In my view, the allegation that Mr Hatwell was ‘directly involved in a decision to exclude Mr S.P. from the lunch room’ is not substantiated.
Did Mr Hatwell make offensive and intimidating remarks to Mr Flens?
[101] The termination letter provided to Mr Hatwell stated that on 31 July 2017 he said to Mr Flens:
‘You’re doing every cunt’s job now are you?’ and ‘You’re working your RDO today, oh, that’s right, you fucking traded if off, you don’t have an RDO, you’re a fucking scab.’ 118
[102] Mr Hatwell denies that he said these things to Mr Flens. Esso’s investigation found that he did. The Commission heard direct evidence on this matter from Mr Hatwell and Mr Flens. It also heard evidence from Mr Aitken, who was working in the vicinity at the time Mr Hatwell spoke to Mr Flens. The Commission also heard evidence from those whom Mr Flens told about the incident, namely Mr Little, Mr Tabone and Mr Henness.
[103] Mr Flens’ account of the altercation with Mr Hatwell on 31 August 2017 was as follows:
‘[26] On 31 July 2017, at approximately after lunch, Mr Hatwell called me a ‘fucking scab’. The incident that led up to this occurred as follows:
(a) I was setting up a steamer for an upcoming job. The job required me to set up an earth lead between all of the equipment, get the generator out and connect the diesel to the steamer. The generator we were using was from a hire company;
(b) Prior to using the equipment, an electrician would ordinarily check everything is connected properly. In our crew we didn't have any electricians, only the two fitters. Jon Aitken, an electrician employed by Esso arrived during the course of the day and started checking the continuities;
(c) Jon Aitken asked me to change the way one of the leads was earthed, and said words to the effect "No that needs to run over there instead" or "No this has to change you can't run it to this point, it has to be run over there where it's a proper earth". This sort of issue has never been raised in the past, however I changed the lead and was in the process of running it underneath the road so that it could be run to a grounded earth;
(d) While I was in the process of running the lead under the road, Michael Hatwell arrived at the job site and spoke to Jon Aitken. He then approached me and we had a conversation to the following effect:
Hatwell: "And who's going to check the generator? You can't just hook this shit up. Just because it comes on the back of a fucking truck doesn't mean it's ready to run. It's gotta be checked".
Flens: "Well we set it up, can you check it?"
Hatwell: "When do you want us to do that?"
Flens: "That’s a separate permit"
Hatwell: "I suppose you want us to fucking do that?"
Flens: "I'll be talking with Derek regarding that” or "I'll ask Derek to get you to do that"
Hatwell: “Who’s hooked this up?”
I ignored the question.
Hatwell: [leaning in very close and bumping into me] “Who’s hooked the fucking generator up?
Flens: “I did”
Hatwell: “Why’s that?”
Flens: “it’s a plug, I plugged it in…”
Hatwell: “oh you’re doing every cunt’s job now are you?”
I ignored the question.
[27] I have never been required to check something before I set it up. That's the electrician’s job to make sure the equipment is set up correctly. I believe Michael Hatwell was unhappy because I had plugged the generator in, however we weren't at the stage of turning it on and wouldn't have done so without it being checked;
[28] Michael Hatwell continued to talk to Jon Aitken and they checked the continuity leads I had been running. I was running a lead through a long drain and was on the other side of the drain working on my own and Michael Hatwell then walked past me and said words to the effect:
"Oh, you're working your RDO today, oh, that's right, you fucking traded that off, you haven't got an RDO, have you? You're a fucking scab"”
I ignored him and he kept on working.’ 119
[104] Mr Hatwell’s account of his exchange with Mr Flens is set out in his second witness statement. Around 4.00pm in the afternoon, he walked past a ‘steaming’ job, and noticed that an electrical generator was set up. There was a temporary lead from the generator to the steaming unit that looked messy. Mr Hatwell was one of only two electrical safety inspectors on the site, and had a duty of care to follow up on any issues he saw on site and ensure that problems were rectified. Mr Aitken, a power and control technician employed by Esso, was working nearby. He told Mr Hatwell that he was there to do continuity checks (wiring checks that prevent static electricity), and that he had not set up or checked the generator. 120 According to Mr Hatwell, he then had a conversation with Mr Flens to the following effect:
‘I said: “Who hooked up the generator?”
Travis said: “What do you mean?”
I said: “Who hooked up the generator?”
[I was frustrated at this point because I thought my question
was pretty clear, and Travis seemed to be dismissive of the
question]
Travis said: “It’s just a plug-in lead”
I said: “It’s not that simple. It needs to be checked by an electrician. The plugs and the circuit breakers have to be the correct size to match the rating of the power cable and the equipment all has to be tested for correct operation”
[Esso requires this under its work management system]
Travis said: “I was going to get it checked”
I said: “By who?”
[I knew at the time that the only electrical people on site were Esso employees because there were no other electrical contractors on site at the time]
Travis said: “I’ll go and see Derek”
I said: “Don’t bother. I’ll go and talk to him about it right now. Don’t hook this up or start it until it’s been checked or tested by one of our guys.”’ 121
[105] Mr Hatwell’s evidence was that, as he started to walk away, he noticed that there were no other contractors or Esso employees on the job, and he asked Mr Flens ‘Is it an RDO today?’ He asked this, he says, because an RDO would explain why no one else was there, and it was a Monday, which was a common day for RDO’s.
The contentions for Mr Hatwell
[106] It was contended for Mr Hatwell that he had no reason to say that Mr Flens was ‘doing every cunt’s job’, because factually this was not the case. He contended that Mr Flens’ theory about why Mr Hatwell would make such a statement - that UGL contractors were perceived to be taking Esso employees’ jobs - was not plausible. The relevant passages of Mr Flens’ evidence under cross-examination are as follows:
‘In your witness statement, pages 8 and 9, you've got the whole conversation with Mr Hatwell occurring and then you say he told you at the end of that conversation, "You're doing every cunt's job"?---That's what I said. He came over, he had a discussion with Jon Aitken, he asked me what I was doing, and then said, "You're doing every cunt's job". It's believed being a UGL employee contractor that we are taking the Esso persons' jobs away and so that's one person's job I'm doing. It would've been seen that me running continuity leads was me doing electrician's work, so that's a second person's job that I'm taking away, so I'm doing every cunt's job.
So you had in your mind that Mr Hatwell had the view that you were taking other people's jobs?---Yes.
He didn't say that, did he?---He did. He said, "You're doing every cunt's job".
Before the contract changeover did you do continuity leads?---Yes, we run the continuity out. We did everything like that. The Balec electricians came along.
They checked where we had placed them, and they checked the continuity, they checked the generator, they checked boiler rotation, signed off.
Before the contract changeover did you set up the generators?---Yes.
So you were doing nothing on 31 July that you hadn't done before the contract changeover?---Correct.
You were doing work on 31 July that Esso employees had not done during the UGLK days?---They had on their own separate jobs.
On their own separate jobs?---Yes. So no interaction with them.
But you were entirely separate, weren't you?---Yes.
You had entirely separate work units?---Yes.
There was simply no occasion in which you were taking anyone's job by doing what you were doing as you were doing it during the UGLK days, was there?---No.’ 122
[107] UGL employees had taken the place of UGLK employees. Some former UGLK employees, such as Mr Flens and Mr S.P., had taken up employment with UGL. They had not taken the jobs of Esso employees. And the evidence establishes that Esso and UGLK maintenance employees generally had little interaction and worked separately. 123 However, there had been statements of concern about UGL employees potentially taking the jobs of Esso employees. It was put to Mr Hatwell in cross-examination that the conditions of employment being offered at UGL did not affect Esso employees’ conditions, to which Mr Hatwell said ‘not directly’.124 He said that there was ‘potential down the track that there wouldn’t be more Esso guys hired if the contract guys were at a lower rate.’125
[108] Mr Hatwell gave evidence that he was concerned from the way in which Mr Flens had responded to him that the generator might be used without first being tested. 126 Such testing had to be undertaken by an electrical worker.127 Mr Aitken, who heard this part of the conversation, gave evidence that he had the impression from the way Mr Flens said ‘it’s just a plug in’ that Mr Flens did not think an inspection was required before he (Mr Flens) ran the generator.128
[109] An abusive statement is not necessarily concerned with factual accuracy, but with making a point. For example, on any view Mr Flens was not doing literally every person’s job. That does not make the statement ‘you’re doing every cunt’s job now’ unlikely. However, one would expect an abusive statement such as this to have some notional factual or circumstantial reference point. It would be enough that he was doing one other person’s job for the abusive statement to ‘make sense’. In my view, there was no legitimate reason for Mr Hatwell to say to Mr Flens that he was doing ‘every cunt’s job’. However, there was a reference point for such a statement. The imputation could quite realistically have been that Mr Flens was doing a former UGLK employee’s job, or an Esso maintenance employee’s job (in by-passing the required testing, or as Mr Flens conjectured, running continuity leads); or more generally that he was doing work that was beyond his remit, namely setting up a generator to use it, or allow it to be used, without the necessary checks.
[110] Mr Hatwell also contended that he had no reason to abuse Mr Flens for trading off his RDO, when factually Mr Flens had not traded it off. It was contended that Mr Hatwell had no specific knowledge of the terms and conditions of those who had accepted employment with UGL, 129 and that the evidence showed that Mr Flens did have an RDO entitlement but was working, and for doing so acquired a day in lieu.130 It was contended that Mr Hatwell therefore had no reason to say to Mr Flens ‘Oh, you're working your RDO today, oh, that's right, you fucking traded that off, you haven't got an RDO, have you? You're a fucking scab.’
[111] However, in the circumstances, the fact that Mr Hatwell had no specific knowledge of UGL conditions does not tell against him having made an abusive statement about RDO’s. Mr Hatwell says he asked Mr Flens if it was an RDO, as it would have explained why no one else was there, and Monday was a common day for an RDO. 131In my view, it would have been reasonable for Mr Hatwell to think that Mr Flens might be working because he did not have an RDO entitlement. There was reason enough for Mr Hatwell, on his own evidence, to raise the issue of an RDO. This provides a reasonable reference point for an abusive statement concerning the working of RDO’s. As noted above, it does not matter whether the abusive statement was true or not, as an abusive statement is not necessarily concerned with factual accuracy, but with making a point in a way that makes sense.
[112] For Mr Hatwell, it was contended that there were several other aspects of Mr Flens’ evidence that should lead the Commission to prefer Mr Hatwell’s version of events.
[113] First, in his interview with Esso (but not mentioned in his statement), Mr Flens said that when Mr Hatwell walked past him and called him a scab, he was six metres away, and that Mr Flens was wearing both ear plugs and ear muffs in a noisy environment. 132 Mr Flens also stated that he and Mr Hatwell moved further apart from one another. It was suggested to Mr Flens in cross-examination that he had not heard properly, and that Mr Hatwell had simply asked him about whether it was an RDO.133
[114] Mr Flens rejected the suggestion that he misunderstood Mr Hatwell. He said that Mr Hatwell had not simply asked if it was an RDO. Mr Flens conceded that it was a noisy environment, and did not seek to downplay the distance between himself and Mr Hatwell. He explained that although he was wearing ear protection, ‘we talked, we have to talk, you elevate your voice to talk.’ 134 In this regard, I note that Mr Flens evidently had no difficulty hearing Mr Hatwell’s reference to RDO’s, which Mr Hatwell acknowledges he made. There is no reason to think that he was not able to hear the rest of what was said. There was no indication in the evidence that Mr Flens was having difficulty hearing or understanding Mr Hatwell.
[115] Secondly, it was contended that Mr Flens’ evidence of what Mr Hatwell said to him was not consistent with the evidence of those to whom Mr Flens reported the matter. The investigation concluded that Mr Hatwell called Mr Flens ‘dog’, ‘scab’, ‘grub’ and ‘scabby contractor’, based on the reports from Mr Henness, Mr Tabone, Mr Little as well as Mr Flens. The evidence of these other witnesses was that Mr Flens told them that Mr Hatwell called him a grub for trading in his working conditions (Mr Little); 135 a ‘scabby contractor’ and a ‘grubby cunt’ (Mr Henness);136 and a ‘dog’ and a ‘scab’ (Mr Tabone).137 It was submitted for Mr Hatwell that Mr Flens’ story has grown in the telling.
[116] However, Mr Flens’ own evidence of the words used by Mr Hatwell was clear and consistent. Mr Flens did not seek to modify his account of events to accommodate the evidence of others. Rather, Mr Flens said simply that the other witnesses can give their evidence, and he will give his. 138 The fact that others reported Mr Flens using different words may reflect their different recollection of what Mr Flens recounted to them. In this regard, it will be recalled that a variety of abusive epithets have been used at Longford. For a person to whom an incident is reported, it may not be of great significance which particular word is used. For example, Mr Little said in his statement that Mr Flens told him on 31 July 2017 that Mr Hatwell had just called him a ‘grub or scab for trading in or working his RDO’.139 For Mr Little the detail was not personal; it was of less significance to him whether the word used was grub or scab, both of which had been used on site. But for a person at whom it is directed, words of abuse would ring in his ears. Mr Flens would be more likely to remember the words accurately, and Mr Flens’ account has been unwavering.
[117] Thirdly, it was contended that Mr Flens’ evidence about the physical contact with Mr Hatwell changed when he was pressed about it, and that he began to downplay it. This is not how I perceived it. In his interview with Esso, Mr Flens said that Mr Hatwell tapped him on the arm with the back of his hand. 140 In cross-examination he referred to ‘physical contact’, and also used the word ‘bumped’.141 He did not in my view seek either to emphasise or downplay the contact. It was contended for Mr Hatwell that Mr Flens did not re-iterate in oral evidence his earlier statement that he ‘could smell Mr Hatwell’s breath’ because he was so close.142 I do not see that as significant.
[118] Fourthly, Mr Aitkens’ evidence was that he didn’t observe any contact or close interaction between Mr Hatwell and Mr Flens. 143 He also said that he did not hear Mr Hatwell use the words that Mr Flens attributes to him, but was able to overhear the conversation between them about who plugged in the generator.144 However, Mr Aitken admitted that he was not watching the two men all the time.145
[119] Further, in cross-examination, Mr Flens stated that the conversation between him and Mr Hatwell ended with Mr Hatwell saying ‘We’ll see about that,’ until Mr Hatwell later passed him by and called him a ‘scab’. 146 Mr Hatwell contends that this conflicts with the account of the conversation Mr Flens provided in his statement. There, he says that that part of the conversation finished with ‘You’re doing every cunt’s job now’. Moreover, there was no mention in the statement of ‘We’ll see about that’. However, I do not consider these to be significant discrepancies.
[120] Mr Hatwell also submitted that there is no evidence of his saying or doing anything like what Mr Flens attributes to him on any previous occasion, and that on Mr Flens’ evidence, this was a one-off. I accept this. There is certainly no evidence of Mr Hatwell abusing anyone else in the manner alleged.
Why Mr Flens’ evidence is accepted
[121] There is a direct conflict between the evidence of Mr Flens, who says that Mr Hatwell called him a ‘fucking scab’ and otherwise abused him as set out above, and Mr Hatwell who flatly denies it. I accept the evidence of Mr Flens over that of Mr Hatwell for the following reasons.
[122] First, Mr Flens was in my assessment a credible and convincing witness. He made appropriate concessions. He did not seek to answer questions strategically, but simply and spontaneously. He gave frank and direct answers to questions under cross-examination. In the course of Mr Flens’ evidence, he turned to me and said, in reference to his conversation with Mr Hatwell, ‘I was told I was a fucking scab’. 147 In my judgement, Mr Flens was telling the truth. Further, from his tone of voice and demeanour, I consider that he found these words to be very upsetting.
[123] Mr Hatwell contended that Mr Flens appeared to downplay the effect of the treatment he had received on the protest line. 148 On Mr Hatwell’s argument, this is significant, as it goes to what he says might be Mr Flens’ motivation to make false allegations against him (I will return to this question below). It would be a reasonable human reaction to find treatment of the kind to which Mr Flens has been subjected on the protest line upsetting. In addition to having his name appear on the sign ‘employee of the week’ next to ‘scabby the rat’,149 Mr Flens has been subjected to various abuse. He has had eggs thrown at his car. His tyres have been punctured.150 However, I do not agree that Mr Flens downplayed his mistreatment on the protest line or the effect it has had on him. Mr Flens described the relevant conduct in detail in his witness statement.151 He accepted that the personal effect of this mistreatment had been upsetting ‘to a degree’.152 He did not specify to what degree he found it upsetting, and this answer in my view reflected his stoic disposition. However, this does not tell against the reliability of his evidence.
[124] Secondly, Mr Hatwell had a motive to abuse Mr Flens, namely because he had accepted employment with UGL. The motive is established by reference to circumstantial evidence and Mr Hatwell’s own evidence. It explains why Mr Hatwell might have said the words attributed to him by Mr Flens. Mr Hatwell acknowledged that he agreed with the union’s position that former UGLK employees should not accept employment with UGL. 153 Mr Flens was a former UGLK employee who had done just that. Mr Hatwell did not think it was right that UGL had offered employment on lower conditions than those which applied at UGLK.154 Mr Hatwell acknowledged that as a delegate, he upheld the ETU position on site amongst the electricians.155 The banners on the protest line, on which the ETU maintained a presence, admonished people not to be ‘scabby the rat’. But Mr Flens had accepted employment with UGL. In my view, these circumstances provide a compelling motive for Mr Hatwell to use abusive language towards Mr Flens, and in particular to call him a ‘scab’. Such a motive is consistent with the case put against Mr Hatwell by Esso.156
[125] Thirdly, and conversely, I do not consider that Mr Flens had a plausible motive to invent a complaint against Mr Hatwell. There is no credible reason as to why Mr Flens would make a false allegation against Mr Hatwell. It is common ground that, although they have known each other for a long time, Mr Flens and Mr Hatwell do not know each other well. They have had little to do with one another. There is no evidence of any history of personal animosity, no previous incidents involving altercations, arguments, hurt feelings, disagreements or even any significant interactions.
[126] Counsel for Mr Hatwell contended that Mr Flens had been subjected to intense criticism from former UGLK employees on the protest line, and that he held a grudge against the union. It was submitted that Mr Hatwell was a delegate and representative of the union, and was therefore a person on whom Mr Flens could exact retribution for the hurt visited on him by the union and its members on the protest line. However, Mr Flens was very open about his attitude to those who had subjected him to abuse. It was put to Mr Flens in cross-examination that he ‘blamed the unions and the members who are standing out the front in the protest line for creating [these kinds of effects] on you and your family’. He responded candidly and without hesitation: ‘fair statement’. 157 Mr Flens acknowledged that he believed that Esso employees were siding with the protestors,158 and that he knew that Mr Hatwell was a union delegate.159 However, Mr Flens said that he did not hold a grudge against the union. He said unions ‘have their place,’160 and that he remains a union member. He openly conceded that he did have a ‘grudge’ against the former UGLK employees who had subjected him to ill treatment on the protest line.161 But Mr Hatwell was not such an employee and had not previously mistreated Mr Flens.
[127] Even if Mr Flens did have a grudge against the union, it is not at all clear why he would have selected Mr Hatwell as the unfortunate victim for an act of revenge. The parties’ arguments concerning the application of the test in Briginshaw engaged the proposition that ordinarily people do not engage in serious misbehaviour. These observations were made for the purpose of explaining the proper approach to the burden of proof in civil proceedings. However, they are also observations of common sense and are relevant beyond the setting of the burden of proof to the consideration of contested points of evidence as between two witnesses.
[128] According to the course of common experience, a person who bears a grudge against a group will not ordinarily seek revenge against the group by targeting a random member of it. Further, if people seek revenge, it is usually directed at someone whom they consider to have wronged them. Mr Hatwell had not done anything to Mr Flens that would provide a plausible motive for him to seek revenge. In particular, as the applicants emphasised in their submissions on the industrial context, there is no evidence of Mr Hatwell having been present on the protest line, or having been involved in adverse conduct towards Mr Flens, other than as alleged in the investigation. In my view it is inherently unlikely that Mr Flens would target Mr Hatwell for revenge by concocting allegations against him. For Mr Flens to make a false accusation against Mr Hatwell in order to exact revenge against the unions and their members would be an improbable act of spite and treachery, of Shakespearean dimensions.
[129] There is simply no evidentiary basis to support an inference that Mr Flens made his complaint against Mr Hatwell in order to retaliate against the unions, Esso employees, or former UGLK employees, or indeed to retaliate against Mr Hatwell either personally or as some unfortunate proxy for anyone else.
[130] I note that in his response to the allegations letter from Esso, Mr Hatwell raised a different possible motivation for Mr Flens to invent allegations against him. He said that he could only assume that Mr Flens was reacting to Mr Hatwell’s criticism of his work, and the fact that Mr Hatwell had raised a safety issue. 162 This seems to me an unlikely motivation. Mr Flens’ job was not at risk as a result of Mr Hatwell’s intervention, nor did Mr Flens suffer any other adverse consequences from it.
[131] These three reasons - the credibility of Mr Flens’ evidence, the presence of a compelling motive for Mr Hatwell to abuse to Mr Flens, and the absence of a plausible motivation for Mr Flens to invent allegations against Mr Hatwell - provide more than a sufficient basis for me to accept Mr Flens’ evidence over that of Mr Hatwell in relation to what occurred during their exchange on 31 July 2017. However I shall mention some further reasons.
[132] Fourthly, Mr Hatwell acknowledged that he asked Mr Flens about an RDO. He admitted that there was no reason for him to ask Mr Flens about his terms and conditions of employment. 163 I find it improbable that Mr Hatwell would neutrally, and out of sheer curiosity, ask such a question of a UGL contractor whom he did not know well. Mr Hatwell also acknowledged that shortly after his conversation with Mr Flens, he asked Mr Little, another UGL employee, about whether he was on penalty rates.164 I leave to one side whether Mr Hatwell ‘quizzed’ Mr Little about this. The uncontested evidence is that Mr Hatwell asked two employees of UGL about their conditions of employment. Mr Hatwell’s acknowledged position was that he did not think people should be accepting offers of employment with UGL.165 (I note that Mr Hatwell, Mr Gelagotis and various other witnesses maintained that they approached employees of contractors with caution.166 Asking a UGL employee about one of their conditions of employment does not strike me as a cautious act.) Mr Hatwell’s questions about Mr Flens’ and Mr Little’s conditions of employment at UGL touch on the motive Mr Hatwell had for abusing Mr Flens, namely acceptance of employment with UGL. In my view, these questions are consistent with the existence of such a motive, and show that UGL conditions were on Mr Hatwell’s mind during his interaction with Mr Flens.
[133] Fifthly, the language complained of by Mr Flens is consistent with that found on signage on the protest line, where the unions maintained a presence. Mr Hatwell was a CEPU delegate and supported the unions’ position. Mr Flens was a person whose name appeared on a list at the protest line of those who had signed contracts with UGL. He was a person against whom the word ‘scab’, as used on the protest line, was directed, and might ‘logically’ (although unacceptably) be used: he had accepted a contract with UGL on terms inferior to those that had applied at UGLK.
Personal circumstances of the applicants
[273] I take account of the disciplinary history of Mr Hatwell and Mr Gelagotis, which is unblemished, apart from a warning that each received for participating in the walk off on 20 June 2017. There is no evidence of any previous behaviour of the kind that I have found constituted valid reasons for their dismissal. Mr Hatwell had been employed with Esso for over ten years, and Mr Gelagotis for several years, following the completion of his apprenticeship. I note their submissions that they expected to continue their careers at Esso. Mr Hatwell is doing casual work for an electrical contractor but has not been able to find a permanent job. Mr Gelagotis is doing unskilled work for his father. I have taken into consideration that in these respects, and no doubt others, dismissal has had very significant effects on both applicants, and in the case of Mr Hatwell, also on his family.
[274] I have also taken into consideration that Mr Hatwell and Mr Gelagotis were suspended on full pay on 9 August 2017 for nearly three months while Esso conducted an investigation. They did not receive letters setting out the allegations against them until 17 October 2017, although some issues had been raised with them earlier, including during the interviews on 15 August 2017 and 30 August 2017.I appreciate that it was not immediately possible for Esso to interview Mr S.P., that it was difficult for the investigation to move forward until this interview had occurred, and that Mr S.P. needed to be approached with some sensitivity. Nevertheless, during much of the period of the suspension, the applicants did not know the detail of the allegations against them in relation to Mr S.P. Although they were suspended on full pay, it must have been difficult for them not to be able to go to work as usual and lead their normal lives, with the shadow of investigation hanging over them.
[275] Another consideration I have taken into account is that several of the allegations against Mr Hatwell and Mr Gelagotis were unsubstantiated. As I mentioned earlier in these reasons, it is sufficient that there be a valid reason for dismissal. The fact that some reasons for dismissal are not made out does not necessarily affect the fairness or otherwise of a dismissal, but it is a factor that may be considered.
[276] In my assessment, this consideration does not have a bearing on Mr Gelagotis’ dismissal. I have found his mistreatment of by S.P., by initiating his exclusion from the lunchroom because he had accepted with UGL, to be substantiated. In the case of Mr Hatwell, I have found his conduct in relation to Mr Flens was a valid reason for dismissal, but have not found substantiated the allegations about his conduct in relation to Mr S.P. Mr Hatwell’s suspension was not confined to the issues relating to Mr S.P; the suspension letter refers to allegations about ‘harassment of a UGL contractor or contractors’, which includes Mr Flens. However, it was the allegations concerning the treatment of Mr S.P. that led to the protracted investigation and lengthy suspension. In my view there is an element of unfairness associated with the fact that Mr Hatwell was suspended for a long period (rather than a shorter period, as would have seemed likely had the investigation been confined to his treatment of Mr Flens) in connection with allegations that I have found to be unsubstantiated. However, it is not unfairness associated with Mr Hatwell’s dismissal for mistreating Mr Flens. It does not render his dismissal for that reason harsh, unjust or unreasonable.
Proportionality
[277] The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with s.387(h). Clearly a dismissal may be harsh because it is disproportionate to the gravity of the misconduct on which the employer acted.
[278] As was noted by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited,314 an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h),315 and it may also be appropriate to conclude that the misconduct was of such a nature as to have justified summary dismissal. This does not mean that it is necessary to consider that an employee’s conduct meets any particular postulated standard of serious misconduct.316
[279] The applicants contended that for conduct to constitute serious misconduct and justify instant dismissal it must be serious, a ‘radical breach’ of the employment relationship that is inconsistent with its continuation. In this regard they referred to the decision of the Full Federal Court in Melbourne Stadiums Ltd v Sautner. 317 However, the Full Court in that case cites a passage from Rankin318 noting that ‘there are offences which justify dismissal but which would not, in themselves, show that the employee was intending not to perform contractual obligations in the future’.319 The Full Court in Melbourne Stadiums also noted that the applicant’s conduct in that case did not necessarily have to amount to a repudiation of his contract of employment to justify his summary dismissal.320
[280] Summary dismissal embraces termination of employment arising from breach of an essential term of the employment contract, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future. 321 In my view Mr Hatwell’s treatment of Mr Flens on 31 July 2017, and Mr Gelagotis’ actions in seeking to exclude Mr S.P. from the lunchroom because he had accepted employment with UGL, were serious matters, and of sufficient gravity to constitute serious misconduct.
[281] Mr Hatwell used very intimidating and abusive language towards Mr Flens. The conduct clearly contravened a policy that applied to Mr Hatwell’s employment and with which he was required to comply. He was aware of the policy, had been reminded of it by management, and had himself invoked the policy on two occasions. In my view Mr Hatwell’s mistreatment of Mr Flens repudiated his contract of employment with Esso. Even if there had not been such a policy, use of such language is manifestly unacceptable in the workplace and amounts to serious misconduct.
[282] Mr Gelagotis took deliberate steps to exclude Mr S.P. from the lunchroom because he had accepted employment with UGL. The conduct was proscribed by a policy with which he was required to comply. He was a health and safety representative. Mr Kostelnik’s reminder to employees of the importance of the policy on 22 June 2017 came after Mr Gelagotis’ actions on 15 June 2017; nevertheless, Mr Gelagotis acknowledged that he was aware of the policy, and that breach of the policy could result in dismissal. 322 He had undertaken online refresher training on 29 September 2016.323 Mr Gelagotis accepted employment with Esso understanding that the policy applied to his employment.324 The policyprohibited conduct which has the purpose or effect of creating an intimidating, hostile or offensive work environment. Excluding Mr S.P. from the lunchroom because he had accepted employment with UGL contravened the policy, and breached his contract of employment. It contravened an essential term of the contract that governed standards of behaviour in the workplace. Even if this term were considered a non-essential term, the contravention of it was a serious breach. The gravity of the conduct is such as to amount to serious misconduct.
[283] For the purposes of my consideration of s.387, I consider that Esso’s summary dismissal of the applicants for these reasons was not disproportionate to their conduct in question.
Clause 22 of the Onshore Agreement
[284] In their closing submissions, the applicants contended that Esso failed to comply with clause 22 of the Onshore Agreement, which applied to their employment, and that this failure makes their dismissal harsh or unjust. This matter was raised as a consideration that the Commission should take into account under s.387(h). The applicants contended, and I agree, that a dismissal may be harsh despite the existence of a valid reason if an employer has not applied a process that it has agreed to apply, or has terminated an employee in contravention of an enterprise agreement. 325
[285] I note at the outset that, even if the clause operated in the way contended for by the applicants, I have concluded that the conduct of the applicants constituted serious misconduct. Accordingly, the clause would not have been engaged in the present circumstances. Nevertheless, I shall set out my analysis of it.
[286] Clause 22 is headed ‘discipline procedure’. The entirety of the clause is set out in the Appendix to this decision. It commences as follows:
‘A Supervisor will counsel an employee where the performance or behaviour falls below acceptable standards.
Unacceptable behaviour may be defined as:
• Continued poor performance;
• Continued lateness or absenteeism;
• Stubborn unwillingness to abide by Company rules and Regulations;
• Insubordination.
Counselling will normally take the following form: …’
[287] There follow three sub-clauses setting out the relevant form that counselling will normally take. This entails counselling in the presence of the superintendent, further counselling, and a third and final warning. The final paragraph of clause 22 reads as follows:
‘The procedure is designed to protect the rights of the employee and, whilst it does not diminish the right of the Company to dismiss an employee instantly for serious or wilful misconduct, an employee who is dissatisfied with the way the procedure has been applied may raise the grievance in accordance with the Dispute Procedure.’
[288] The applicants contend that the opening words of clause 22 require Esso to counsel an employee where performance or behaviour falls below acceptable standards. They say that the opening words are mandatory – a supervisor will counsel – and that the clause provides for a series of steps graduating in seriousness and culminating with a third and final warning.
[289] The last paragraph of the clause states that the procedure is designed to protect the rights of the employee, and that it is not intended to diminish the right of the company to dismiss an employee instantly for serious or wilful misconduct. The applicants contend that there is an implication that the clause does diminish the rights of the employer to dismiss for reasons other than serious or wilful misconduct. Accordingly, the applicants say that if conduct falls short of serious misconduct, the counselling process in clause 22 must be applied. It is common ground that the process in clause 22 was not applied in relation to Mr Hatwell and Mr Gelagotis.
[290] It should also be noted that clause 9(a) of the Onshore Agreement states that employment may be terminated by the Company by giving notice in accordance with the Act, or payment in lieu of notice, but this shall not affect the right of the company to dismiss any employee without notice for serious misconduct.
[291] The applicants submit that Esso is not entitled to terminate an employee’s employment under clause 9(a) if there is behaviour that engages clause 22, unless it has taken the steps prescribed in that clause. In short, the applicants contend that it is only behaviour that constitutes serious or wilful misconduct that entitles Esso to ‘by-pass’ the procedure in clause 22 and proceed straight to dismissal.
[292] I do not read clauses 9 and 22 in this way. Clause 9 is cast in general terms and allows the company to terminate on notice as contemplated by the Act. It does not state that it is subject to clause 22, and clause 22 does not state that it derogates from clause 9. Clause 22 says that a supervisor ‘will counsel’ an employee where performance or behaviour falls below acceptable standards. These standards are defined broadly and inclusively. But the clause then states that counselling will ‘normally’ take the following form. This suggests that usually, or perhaps in a normal situation (but not always) the form of counselling described in the clause will apply. The applicants say that this goes to the form and content of the counselling, not whether counselling must occur. But if a different ‘form’ can be adopted, that form might be of a minimal dimension and content. Further, counselling does not necessarily preclude dismissal. A person might be counselled and dismissed.
[293] The last paragraph in clause 22 states that the clause does not diminish the company’s right to dismiss an employee for serious misconduct. This suggests that the right to dismiss for otherreasons is diminished. But how is it diminished? The succeeding phrase states that ‘an employee who is dissatisfied with the way the procedure has been applied may raise the grievance in accordance with the Disputes Procedure.’ If the procedure has been applied, the employee may challenge the application of the procedure. This is the way in which Esso’s right to dismiss for conduct short of serious misconduct is curtailed. The ‘procedure’ might also encompass other forms of counselling that have been adopted, aside from the ‘normal’ form set out in clause 22.
[294] The clause does not, in my view, say or imply that the employer cannot dismiss an employee on notice unless the counselling procedure has been applied. I note that the reference to clause 9(a) in the second last paragraph of the clause (to the effect that, if there is no improvement, the company can suspend or be free to terminate under clause 9(a)), is in my view simply a statement of fact, not the lifting of a limitation. In any event, this paragraph forms part of the ‘normal’ counselling procedure, and is not applicable to other forms of counselling that might be used.
[295] As noted earlier, I have concluded that the conduct of the applicants did amount to serious misconduct, and in that circumstance it is common ground that clause 22 of enterprise agreement is not engaged.
Conclusion
[296] The circumstances from which these applications have arisen are lamentable. Mr Flens and Mr S.P. have been subjected to mistreatment. Mr Hatwell and Mr Gelagotis have lost their jobs. Other Esso employees have been dismissed and disciplined. The workplace has been divided.
[297] Many individuals and their unions hold strong views about the employment arrangements at UGL. That is their right. Some former UGLK employees have chosen to accept, or perhaps have had little financial choice but to accept, employment with UGL on lesser conditions than those that they previously enjoyed. This is their right.
[298] The industrial circumstances at Longford have been the subject of much evidence and argument in these matters. However, the focus of my consideration of these two applications has been the conduct of the applicants.
[299] Taking into account all of the evidence and the considerations in s.387 of the Act, and based on my factual findings, I consider that the dismissal of Mr Hatwell was not harsh, unjust or unreasonable, and that his dismissal was therefore not unfair.
[300] Taking into account all of the evidence and the considerations in s.387 of the Act, and based on my factual findings, I consider that the dismissal of Mr Gelagotis was not harsh, unjust or unreasonable, and that his dismissal was therefore not unfair.
[301] Accordingly, the applications for unfair dismissal remedies are dismissed.
DEPUTY PRESIDENT
Appearances:
M Harding of counsel for Mr Hatwell and Mr Gelagotis
F Parry QC with L Howard of counsel for Esso Australia Pty Ltd
Hearing details:
2018
Melbourne:
29, 30 and 31 January
1 and 2 February
19 March
Final written submissions:
Applicants: 27 February 2018
Respondent: 12 March 2018
Applicants in reply: 16 March 2017
Printed by authority of the Commonwealth Government Printer
<PR606668>
Appendix
Clause 22 of the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2017
22. DISCIPLINE PROCEDURE
A Supervisor will counsel an employee where the performance or behaviour falls below acceptable standards.
Unacceptable behaviour may be defined as:
• continued poor performance;
• continued lateness or absenteeism;
• stubborn unwillingness to abide by Company Rules and Regulations;
• insubordination.
Counselling will normally take the following form:
(a) Counselling of the employee in the presence of the Superintendent and, if the employee
wishes, the Delegate.
(i) The Supervisor will identify the unacceptable behaviour and give the employee the opportunity to explain.
The Supervisor will outline the possible consequences of a failure to improve performance/behaviour.
(ii) If the matter is not satisfactorily explained a written report of the incident and the
counselling session will be placed on the employee's personal file. The record will note a date for review with the employee. A copy of the report will be given to the employee.
(iii) At the review an employee shall have a letter put on file identifying improved
performance/behaviour if applicable.
(b) Should the behaviour be repeated or no improvement noted then a further counselling session will be held.
(i) The Superintendent and Delegate will again attend and a formal counselling will take place at which the Supervisor will identify the problem and note required improvements.
The parties will be ready and willing to assist the employee in overcoming any problems which may have a bearing on the unacceptable behaviour.
(ii) If there is no satisfactory resolution another written report will be placed on the
employee's personal file. The report will note a review date.
(c) The third and final warning will be given if there is no appreciable improvement by the review date.
(i) The Delegate, Union Official and Management representatives will be present for the counselling session.
(ii) If there is no resolution the employee will be given a signed warning of dismissal and a copy will be retained on file.
(iii) A date of review will be noted on the report.
(iv) At the review, and in the case of satisfactory improvement, the employee will be given a report identifying the improvement.
Should there be no substantial improvement the Company shall have the right to suspend the employee without pay for a period the Company considers appropriate (up to a maximum period of four weeks), or be free to terminate the contract of employment in terms of the provisions in Clause 9(a) of this Agreement.
The procedure is designed to protect the rights of the employee and, whilst it does not diminish the right of the Company to dismiss an employee instantly for serious or wilful misconduct, an employee who is dissatisfied with the way the procedure has been applied may raise the grievance in accordance with the Disputes Procedure.
1 After seeking the views of the parties’ representatives at the hearing, I determined that it was appropriate in this decision to use Mr S.P.’s initials, rather than his name.
2 Statement of Michael Hatwell, Exhibit A3 at MH-9
3 Statement of Michael Gelagotis, Exhibit A6 at MG-5
4 AE423884
5 AE422305
6 Witness statement of Melinda McMillan, Exhibit R5 at MM-4
7 Report of Dr Brown, Exhibit R23. This exhibit is subject to a confidentiality order.
8 Witness statement of Melinda McMillan, Exhibit R5 at MM-13
9 See generally sections 63 and 64 of the Evidence Act 1995 (Cth)
10 Applicants’ reply submissions dated 19 January 2018, Exhibit A2 at paragraph 19
11 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 - 41
12 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, at 689, per Deane and Evatt JJ
13 Fair Work Act 2009 (Cth), s.591
14 Pearse v Viva Energy [2017] FWCFB 4701 at [14]
15 Enterprise Flexibility Test Case (1995) 59 IR 430, 445
16 Fair Work Act 2009 (Cth), s.577(a)
17 PN312 - PN315, PN1374
18 Respondent’s outline of submissions, Exhibit R3, paragraph 5; Statement of Richard Zvirbulis, Exhibit R6, paragraph 11
19 Statement of Greta Marks, Exhibit R21 at GM-6
20 Ibid.
21 See for example Email from Frank Casella dated 14 June 2017, Exhibit R1 pp. 2 - 3; Statement of Travis Flens, Exhibit R11 at paragraph 6; Statement of John McShane, Exhibit R18 at paragraph 11.
22 Statement of Greta Marks, Exhibit R21 at GM-6 (p. 2 of attachment); PN422 - PN439
23 Respondent’s final written submissions dated 12 March 2018 at paragraph 30
24 Email from Frank Casella dated 14 June 2017 and email chain, Exhibit R1
25 PN862 - PN867, PN886; PN1952 - PN1964
26 PN886, PN898
27 PN293 - PN294, PN900 - PN914
28 PN293
29 PN931 - PN935; PN1979 - PN1981; PN4693, PN5120; Witness statement of Natalie Bannan, Exhibit R20 at paragraph 14, NB-4, NB-15 (pp.52-53) ; Statement of Travis Flens, Exhibit R11 at paragraph 11(a), 11(f); Statement of Paul Whykes, Exhibit R15 at paragraph 9; Statement of John McShane, Exhibit R18 at paragraph 16
30 Statement of Frank Tabone, Exhibit R10 at paragraph 10; Statement of Clint Henness, Exhibit R13 at paragraph 8; Statement of Natalie Bannan, Exhibit R20 at NB-15, PN970
31 PN936 - PN937; Statement of Natalie Bannan, Exhibit R20 at paragraphs 19-20, NB-5
32 Statement of Greta Marks, Exhibit R21 at GM-2 through to GM-5; GM-8
33 Statement of Greta Marks, Exhibit R21 at GM-1
34 PN938 - PN939, PN965
35 Statement of Kirsteen Butler, Exhibit R8 at KB-22
36 Statement of Frank Tabone, Exhibit R10 at paragraph 5
37 Statement of Kirsteen Butler, Exhibit R8; at KB-3 and PN928 - PN930 re Michael Hatwell; at KB-9 and PN1972 re Michael Gelagotis; and at KB-5 and KB-7 re other Esso employees. See also paragraphs 13, 15, 17, 19
38 Statement of Natalie Bannan, Exhibit R20 at paragraph 15
39 Photograph showing a sign apparently outside the protest line, Exhibit R9; Statement of Travis Flens, Exhibit R11 at paragraphs 15(a) - 15(b), TF-3, TF-4; Statement of Natalie Bannan, Exhibit R20, NB-15 (p. 55); Statement of Greta Marks, Exhibit R21, GM-7 (pp. 1, 3, 5, 8, 9)
40 Photograph showing a sign apparently outside the protest line, Exhibit R9; Statement of John McShane, Exhibit R18 at paragraph 22
41 Exhibit R9, ibid. Statement of John McShane, Exhibit R18 at paragraph 20
42 Exhibit R9, ibid. Statement of John McShane, Exhibit R18 at paragraph 22; PN1185, PN1190 - PN1191
43 Statement of Natalie Bannan, Exhibit R20 at paragraph 15, NB-2, NB-15 (p. 55); Statement of Greta Marks, Exhibit R21, GM-7 (pp. 4, 6, 7, 8), GM-8 (pp. 46, 54, 55)
44 Statement of MelindaMcMillan, Exhibit R5 at paragraph 6(g); Statement of Clint Henness, Exhibit R13 at paragraph 9; Statement of Travis Flens, Exhibit R11 at paragraph 9
45 Statement of Travis Flens, Exhibit R11 at paragraph 9; Statement of Frank Tabone, Exhibit R10 at paragraph 11; Statement of Rod Little, Exhibit R12 at paragraph 10; Statement of John McShane, Exhibit R18 at paragraphs 17-19; Statement of Natalie Bannan, Exhibit R20 at paragraph 30
46 Statement of Frank Tabone, Exhibit R10 at paragraph 11
47 Statement of JohnMcShane, Exhibit R18 at paragraph 18
48 Statement of Clint Henness, Exhibit R13 at paragraph 9
49 Statement of Richard Zvirbulis, Exhibit R6 at paragraph 14, RZ-2; Statement of Natalie Bannan, Exhibit R20 at paragraph 16, NB-3
50 Statement of Kym Smith, Exhibit R7 at paragraphs 62-65; Statement of Travis Flens, Exhibit R11 at paragraphs 17-19; Statement of Rod Little, Exhibit R12 at paragraph 7; Statement of Clint Henness, Exhibit R13 at paragraph 13; Statement of Paul Whykes, Exhibit R15 at paragraphs 10-12
51 Statement of Travis Flens, Exhibit R11 at paragraph 20
52 Statement of Frank Tabone, Exhibit R10 at paragraph 20, FT-2
53 Applicants’ final written submissions dated 27 February 2018 at paragraph 15
54 Statement of Kirsteen Butler, Exhibit R8 at paragraph 7; Statement of Frank Tabone, Exhibit R10 at paragraph 27
55 Statement of Kirsteen Butler, Exhibit R8 at paragraph 8; Statement of Kym Smith, Exhibit R7 at paragraph 38
56 Statement of Travis Flens, Exhibit R11 at paragraph 33; TF-5
57 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 52-56
58 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 57-59
59 Statement of Michael Hatwell, Exhibit A3, MH-1; Statement of Michael Gelagotis, Exhibit A6, MG-1
60 Statement of Mick Triantafyllou, Exhibit R17 at paragraph 21
61 Statement of Mick Triantafyllou, Exhibit R17 at paragraph 25
62 Statement of Michael Hatwell, Exhibit A3, MH-2
63 Statement of Michael Hatwell, Exhibit A3, MH-3
64 Statement of Michael Hatwell, Exhibit A3, MH-4
65 Statement of Michael Gelagotis, Exhibit A6, MG-2
66 Statement of MelindaMcMillan, Exhibit R5 at paragraph 28, MM-13
67 Statement of MelindaMcMillan, Exhibit R5 at paragraphs 19-22
68 Statement of Michael Hatwell, Exhibit A3, MH-5; Statement of Michael Gelagotis, Exhibit A6, MG-3
69 Statement of Michael Hatwell, Exhibit A3, MH-5
70 Statement of Michael Gelagotis, Exhibit A6, MG-3
71 Statement of Michael Gelagotis, Exhibit A6, MG-4
72 Statement of Michael Hatwell, Exhibit A3, MH-8
73 Statement of Michael Hatwell, Exhibit A3, MH-9
74 Statement of Michael Gelagotis, Exhibit A6, MG-5
75 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
76 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
77 Edwards v Giudice (1999) 94 FCR 561, at 564; King v Freshmore (Vic) Pty Ltd , AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000, Print S4213 [24].
78 Ibid
79 Briginshaw v Briginshaw (1938) 60 CLR 336
80 Ibid at 363
81 Ibid per Dixon J at 362
82 Ibid per Rich J at 350
83 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
84 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450
85 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388, [35]; approved in Karakatsanis v Racing Victoria Ltd (2013) 306 ALR 125 at [35] - [37]
86 NOM v Director of Public Prosecutions (2012) 38 VR 618, [124]
87 Respondent’s final written submissions dated 12 March 2018 at paragraph 96
88 See also Dixon J in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635. At page 644, his Honour said: “Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.”
89 Respondent’s final written submissions dated 12 March 2018 at paragraphs 115 and following
90 Applicants’ final written submissions dated 27 February 2018 at paragraph 52
91 Statement of Melinda McMillan, Exhibit R5 at MM-13 (p.16)
92 Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 49-57
93 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 56
94 Respondent’s final written submissions dated 12 March 2018 at paragraph 124
95 Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 58-59
96 PN820
97 For Michael Hatwell, see PN478-PN482. Note in his second statement Mr Hatwell says he did not know Mr S.P. had signed a contract with UGL ‘until 15 June 2017’; but in cross-examination, he says he did not know ‘officially’ until 23 June 2017. For Michael Gelagotis, see PN1475-PN1479
98 Email from Frank Casella dated 14 June 2017 and email chain, Exhibit R1 p.3
99 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10
100 PN503
101 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10
102 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.13)
103 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.12)
104 PN2950
105 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 65
106 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 66
107 PN654-PN658
108 PN2960
109 PN2956
110 PN2971
111 PN2443
112 PN522
113 PN660
114 PN661-PN665
115 PN664
116 PN820
117 PN656-658
118 Statement of Michael Hatwell, Exhibit A3 at MH-9
119 Statement of Travis Flens, Exhibit R11 at paragraphs 26-28
120 Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 19-22
121 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 23
122 PN4873-PN4883
123 PN4708-PN4709, PN4975
124 PN396
125 PN398
126 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 28; PN1056
127 PN1060
128 Statement of Jonathan Aitken in reply, Exhibit A11 at paragraph 7;PN2630
129 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 24
130 PN4566
131 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 24
132 PN4794-PN4803
133 PN4804-4814
134 PN4810
135 PN5011
136 PN5138-PN5142
137 Statement of Frank Tabone, Exhibit R10 at paragraph 22
138 PN4820-4822, PN4828-4832
139 Statement of Rod Little, Exhibit R12 at paragraph 13
140 Statement of Travis Flens, Exhibit R11 at TF-5
141 See PN4896-PN4903
142 PN4896
143 Statement of Jonathan Aitken in reply, Exhibit A11 at paragraph 9
144 PN2628
145 PN2665-PN2666
146 PN4790-PN4791
147 PN4840-PN4842
148 Applicants’ final written submissions dated 27 February 2018 at paragraph 77(c)
149 PN961
150 Statement of Travis Flens, Exhibit R11 at paragraphs 34-42
151 Statement of Travis Flens, Exhibit R11 at paragraph 8 and following
152 PN4681
153 PN437-PN438
154 PN411-PN412
155 PN219
156 See for example Respondent’s closing submissions, paragraphs 121 – 123; see also cross examination of Mr Hatwell at PN1110
157 PN4697
158 PN4702
159 PN4728
160 PN4814
161 PN4815
162 Statement of Michael Hatwell, Exhibit A3, MH-8 at paragraph 3
163 PN1111
164 PN1125
165 PN436-PN439
166 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.9); Statement of Michael Hatwell, Exhibit A3 at MH-2 (pp.15, 17)
167 Statement of Michael Hatwell, Exhibit A3 at MH-4 (pp.9-10)
168 PN1161-PN1162
169 PN1163
170 PN1146-PN1149
171 PN1153
172 PN965-PN968
173 PN2782-2783
174 PN2705
175 PN1095
176 PN2705
177 PN2647, PN2683; PN4756; Statement of Travis Flens, Exhibit R11 at paragraphs 26(d), 27
178 Statement of Travis Flens, Exhibit R11 at paragraph 30
179 Statement of Kirsteen Butler, Exhibit R8, KB-12 (p.4)
180 Statement of Kirsteen Butler, Exhibit R8, KB-12 (p.6)
181 Statement of Kirsteen Butler, Exhibit R8, KB-2, KB-8
182 Statement of Kirsteen Butler, Exhibit R8, KB-3
183 Statement of Kirsteen Butler, Exhibit R8 at paragraph 43; KB-22
184 Email from Kirsteen Butler to Michael Hatwell dated 11 July 2017 including 22 June 2017 email chain, Exhibit R2; PN293 - PN294, PN900 - PN914
185 PN4474
186 Statement of Kirsteen Butler, Exhibit R8, KB-55
187 PN1571
188 PN2134-PN2135
189 Handwritten notes of Melinda McMillan re para 197 of statement in annexure MM-14, Exhibit R4
190 Statement of Melinda McMillan, Exhibit R5, MM-13 (p.5)
191 Applicants’ final submissions dated 27 February 2018 at paragraph 98
192 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 97(a) and (b)
193 Statement of Melinda McMillan, Exhibit R5, MM-13 (p.25)
194 PN2129
195 Applicants’ final submissions dated 27 February 2018 at paragraph 110
196 Statement of Michael Gelagotis, Exhibit A6 at paragraph 13
197 PN1771-PN1774
198 PN2563
199 Statement of Matt Taylor, Exhibit R16 at paragraph 14
200 Statement of Matt Taylor, Exhibit R16 at paragraph 20
201 Statement of Matt Taylor, Exhibit R16 at paragraph 22
202 Statement of Matt Taylor, Exhibit R16 at paragraph 27
203 Statement of Matt Taylor, Exhibit R16 at paragraph 27
204 Statement of Michael Gelagotis in reply, Exhibit A7 at paragraph 31
205 Statement of Michael Gelagotis, Exhibit A6, at paragraph 16
206 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.15)
207 PN1828-PN1832
208 PN1293
209 PN1454
210 PN1484
211 PN2023-PN2025
212 PN1959
213 PN1961
214 PN1964
215 PN1966
216 PN1994-PN2004
217 PN1997-1998; PN2008
218 PN1986
219 PN2016
220 PN2020
221 Applicants’ final written submissions dated 27 February 2018 at paragraph 115; Statement of Michael Gelagotis, Exhibit A6 at paragraph 16
222 Statement of Michael Gelagotis, Exhibit A6 at paragraph 16
223 Statement of Michael Gelagotis, Exhibit A6 at paragraph 15
224 Statement of Mr Robert Lyndon, Exhibit A8, paragraph 10
225 Statement of Matt Taylor, Exhibit R16 at paragraph 15
226 Statement of Matt Taylor, Exhibit R16 at MT-2 (p.23)
227 Statement of Matt Taylor, Exhibit R16 at MT-2 (p.35)
228 PN2573, PN2580
229 Statement of Melinda McMillan, Exhibit R5 at MM-13 (p. 38)
230 PN1828
231 Statement of Robert Lyndon, Exhibit A8 at paragraph 10
232 PN2541
233 PN2268
234 This is an instance of where I place some reliance on Mr S.P.’s evidence
235 Statement of Melinda McMillan, Exhibit R5, MM-11 at p.12
236 Ibid
237 Statement of Michael Gelagotis, Exhibit A6 at paragraph 13
238 Statement of Michael Gelagotis, Exhibit A6 at paragraph 15
239 PN1810-1816
240 PN711
241 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10
242 PN1703
243 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.13)
244 PN1621
245 PN1622
246 PN824; PN1834-PN1837, PN2500-PN2502
247 PN2518
248 PN240, PN1300-PN1301
249 PN1300
250 PN3523, PN3526-PN3527; PN4396, PN4398
251 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10
252 PN515; PN1889
253 PN5541
254 United Group Resources Pty Ltd and Ors v Calabro and Ors (2011) 198 FCR 514 at [71]
255 217 ALR 1
256 Ibid at 5, per Dixon, Williams, Webb, Fullager and Kitto JJ
257 Director, FWBII v CFMEU, (2013) 231 IR 278 at [74]
258 Applicants’ final submissions dated 27 February 2018 at paragraph 26
259 Email from Frank Casella dated 14 June 2017 and email chain, Exhibit R1
260 PN1475
261 PN1403
262 PN1484, PN1486
263 PN4385-PN4388
264 PN656
265 See for example Respondent’s closing submissions, paragraph 134; and cross examination of Mr Gelagotis, PN 1947-1948
266 Applicants’ final submissions dated 27 February 2018 at paragraph 111
267 See Exhibit A19, extract from the interview of the Plant Manager, David Anderson; Statement of Brendan Small, Exhibit A14 at paragraphs 17-20; Statement of Robert Lyndon, Exhibit A8 at paragraph 11
268 Statement of Matt Taylor, Exhibit R16 at paragraph 16
269 Applicants’ final submissions dated 27 February 2018 at paragraph 114
270 PN5730-PN5731
271 Statement of Kirsteen Butler, Exhibit R8, Harassment in the Workplace Policy, KB-11
272 Statement of Kirsteen Butler, Exhibit R8 at paragraph 23; KB-12 (p.52–53)
273 PN5548, Applicants’ final submissions dated 27 February 2018 at paragraph 120
274 PN1867
275 Statement of Robert Lyndon, Exhibit A8 at paragraph 14
276 Statement of Melinda McMillan, MM13, page 32
277 Statement of Robert Lyndon, Exhibit A8 at paragraph 14
278 Statement of Kirsteen Butler, Exhibit R8 at KB-11
279 Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285, 293 - 297; B v Australian Postal Corporation (2013) 238 IR 1, [36]; Farstad Shipping (Indian Pacific) Pty Ltd v Rust [2017] FWCFB 4738, [46]
280 Statement of Kirsteen Butler, Exhibit R8 at KB-2, KB-8
281 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 28-30, KB-13, KB-16, KB-17; Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 68-70; Statement of Michael Gelagotis in reply, Exhibit A7 at paragraphs 36-38; PN253, PN256, PN1329-PN1331
282 PN1339-PN1341
283 PN1350-PN1353
284 Statement of Melinda McMillan, Exhibit R5, MM-13 at p.22
285 PN4465-4467
286 PN4465-PN4471
287 PN4474
288 PN1163, PN1173-PN1174; PN2782
289 PN1738
290 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
291 Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033 At 32
292 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]
293 Crozier v Palazzo Corporation Pty Ltd (2000)98 IR 137at 151; Previsic v Australian Quarantine Inspection Services Print Q3730
294 RMIT v Asher (2010) 194 IR 1 at 14-15
295 (2013) 238 IR 1
296 Ibid at [41]
297 At [42]
298 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
299 See B v Australian Postal Corporation (2013) 238 IR 1, [43]-[46]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
300 B v Australian Postal Corporation (2013) 238 IR 1 at [48]
301 Applicants’ final submissions dated 27 February 2018 at paragraphs 127-130
302 Ibid at paragraph 127
303 [1937] 3 All E.R. 67
304 Ibid at 74
305 PN4840-PN4842
306 Statement of Matt Taylor, Exhibit R16 at MT-2 (p.14); Statement of Melinda McMillan, Exhibit R5 at MM-13 (p.30)
307 Statement of Melinda McMillan, Exhibit R5 at MM-13 (p.6)
308 PN1871
309 Applicants’ final submissions dated 27 February 2018 at paragraph 27(g)
310 Statement of Kirsteen Butler, Exhibit R8 at KB-54
311 Statement of Kirsteen Butler, Exhibit R8, KB-34 (pp. 172-173, 180-181); PN4116, PN4124-PN4125, PN4130-PN4134
312 Statement of Kirsteen Butler, Exhibit R8, KB-34 (pp. 172-173, 178-181); PN4116, PN4124-PN4125, PN4130-PN4134
313 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 93, 114, 116; KB-53, KB-54
314 [2015] FWCFB 1033
315 At [34]
316 [2015] FWCFB 1033 at [34]
317 (2015) 229 FCR 221 at [12]-[14]
318 Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
319 Ibid at [254]
320 Melbourne Stadiums v Sautner (2015) 229 FCR 221 at [15]
321 Ryman v Thrash Pty Ltd[2015] FWCFB 5264 at [27]
322 PN1313-1352
323 Statement of Kirsteen Butler, Exhibit R8 at paragraph 29
324 Statement of Kirsteen Butler, Exhibit R8 atKB-8 - Note that the Harassment Policy is one of the ExxonMobil Standards of Business Conduct, Policies and Guidelines
325 Wilson v Australian Taxation Office (2001) 110 IR 78 at [36]-[39]
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