Jonathon Rowland v Austar Coal Mine Pty Limited

[2010] FWA 8011

[2010] FWA 8011

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathon Rowland
v
Austar Coal Mine Pty Limited
(U2010/5110)

Nathan Rollason
v
Austar Coal Mine Pty Limited
(U2010/5113)

DEPUTY PRESIDENT HARRISON NEWCASTLE, 15 OCTOBER 2010

Application for dismissal remedy

[1] An Ex-Tempore Decision was issued in transcript of 11 October 2010 for these matters. The Decision is now published in full.

[2] These proceedings concern the termination of employment of Mr Jonathon Rowland and Mr Nathan Rollason by Austar Coal Pty Ltd (Austar).

[3] Both applicants were employed as underground coalminers on the A crew at the Austar mine near Cessnock, New South Wales.

[4] The parties jointly requested that the matters be heard concurrently.

[5] Mr Rowland was employed from January 2009 to 22 December 2009. Mr Rollason was employed from 26 November 2007 to 22 December 2009.

[6] The termination of employment arises from events on 17 and 18 December 2009 involving sexual harassment and victimisation of Mr Ben Donaldson and consumption of alcohol on the mine site.

[7] The evidence is that the A crew had a practice of having a beer at the end of the three week roster cycle. Some employees attended a local hotel for breakfast when the roster cycle concluded on night shift, resulting in conclusion of work at 8.30 am. On occasions that the roster cycle concluded on afternoon shift at midnight, some members of the crew gathered at a location just inside the front gate on Middle Road, some 1.4 km from the pit top facilities.

[8] Austar assert that the consumption of alcohol on company property is contrary to the site Drug and Alcohol Policy, which all employees and the applicants in particular, had made clear to them on induction.

[9] The Construction, Forestry, Mining and Energy Union (CFMEU), appearing for the applicants in this matter, assert that the Drug and Alcohol Policy is a fitness for work document and has diminished significance as the employees covered would not present for duty for some days.

[10] The CFMEU further asserts that the practice of having a drink at the gate at the end of the afternoon shift roster cycle was well known by management and on occasion supported by Deputies (unnamed), who are frontline supervisors at the mine, providing alcohol for the event.

[11] The evidence of Mr Rowland is that an Undermanager, Mr David Copp, drove past, waved and acknowledged employees having a drink at the gate.

[12] Mr Rowland further asserted that the practice of employees having alcohol on site was mitigated by the fact, in his evidence, that he observed alcohol being delivered to the site office.

[13] The General Manager, Mr Fulham, deposed that until the events of 17 December 2009 he and other senior management had no knowledge of this practice and would not have condoned it. Mr Fulham deposed that whenever alcohol is delivered to site by a supplier as a Christmas gift it is not consumed on site.

[14] Mr Fulham’s evidence is that the duty of care pursuant to the Occupational Health and Safety Act 2000 extends to the journey home, and the policy of not permitting the consumption of alcohol on site applies equally to pre-work and after work.

[15] Mr Fulham’s evidence is that he had no knowledge of the “after shift drink” and, since the events of 17 and 18 December 2009, has questioned all Deputies and Undermanagers, all of whom denied any knowledge of the practice, except for Mr Copp who informed him in March 2009 that he observed employees drinking alcohol at the main gate and warned them against the practice and required them to pack up and leave the site immediately.

[16] The practice of having a drink at the gate is contrary to site policy and is an offence which justifies disciplinary action including termination of employment.

[17] The drinking site was within 30 metres of a sign which advises that drugs and alcohol are prohibited on site.

[18] Having regard to the clear advice to employees, the applicants in particular, that alcohol should not be consumed on site, the issue of condonement does not arise. I make the observation that the employees are not children and management should not be required to closely supervise their behaviour and should be able to trust that employees behave sensibly.

[19] Mr Endacott relied upon the doctrine of condonation referred to in A/asian Transport Officers’ Association v Department of Motor Transport 1 which referred to the principal in the following manner:

“The doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission. It was defined by Cook J in the following terms:

“Where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting he is regarded in law as having waived the right of summary dismissal for that offence or having ‘condoned’ that offence so that he cannot, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action” [1967] AR (NSW) 16.”²

[20] Knowledge by Deputies and Undermanagers is unproven. The best information is that Mr Copp warned against the continuation of the practice. There is no doubt that Mr Fulham was unaware of the practice. The full knowledge requirement is not met in such a way as to invoke the doctrine of condonation.

[21] There is no doubt that the consumption of alcohol exacerbated the harassment and victimisation of Mr Donaldson, which I regard as a more serious and pressing matter.

Harassment and Victimisation by Rollason

[22] It is alleged that Mr Rollason was a serial pest on the shift who targeted Mr Donaldson after Mr Donaldson suggested he back off harassment of another employee, identified as Mr Darren Harpur, referred to in the industry as a “cleanskin”, meaning a person without previous underground coal mining experience.

[23] The actions attributed to Mr Rollason are:

• Drawing male genitalia on Personal Protection Equipment (PPE), e.g. hard hats, jackets and other items, of employees



• Continually referring to Mr Donaldson as “cuntarse” and “bleeding from the bum Bennie”



• Regularly displaying his penis to Mr Donaldson and other employees and on occasion drawing a face on the end of his penis and then mocking Mr Donaldson to other employees in front of him, saying:

“Hi I’m Ben Donaldson, I’m a dickhead”

• Openly masturbating for personal gratification in the transport from the pit top to the work site. This journey is approximately 1300m down in a dolly car and some 7km laterally underground in a transporter, the entire journey taking up to one hour.

[24] Mr Rollason denies this behaviour.

[25] I prefer the evidence of Mr Donaldson, who deposed that this behaviour was consistent with a culture of harassment and was observed without complaint or intervention by other employees, which left Mr Donaldson feeling powerless to do anything or make a formal complaint.

[26] In the course of cross examination Mr Endacott questioned Mr Donaldson closely as to why, if the conduct of Mr Rollason had occurred as he deposed, he had not made a complaint to management or sought assistance from the union.

[27] Mr Donaldson put that he felt powerless to complain to management due to peer group concerns that he would be subject to further abuse and a concern that management condoned the behaviour.

[28] Mr Donaldson deposed that he considered seeking assistance from the union and made some enquiries outside the Northern District Branch of the CFMEU, resulting in advice that the union would probably not support him. This advice was not tested by an approach by Mr Donaldson to any official or officer of the Branch, however, the robust defence of Mr Rollason and Mr Rowland, together with the vigorous cross examination of Mr Donaldson, suggests that the advice he received may have had substance.

[29] I further prefer the evidence of Mr Donaldson on the basis that it is accepted that a Mr Luke Chaffey had admitted to drawing male genitalia on PPE and placing foot powder in Mr Donaldson’s safety helmet for Mr Donaldson to discover on his return from leave.

[30] The evidence of Mr Fulham is:

40. At approximately 3.00pm I interviewed Mr Chaffey in relation to Mr Donaldson’s complaint. Ms Fullbrook, Mr McLean, Mr Dobson and Mr Snaddon were present. During this interview I had an exchange with Mr Chaffey in words to the following effect:

Fulham: Did you draw genitalia on Ben Donaldson’s helmet?

Chaffey: Yes.

Fulham: The employee that has raised this complaint says that he has been subjected to harassment from you and Rollason for months.

Chaffey: Yes...It is a bit of fun...In my opinion I don’t believe that it is harassment or stepping out of line ... I have also drawn on Matt Fairlie’s helmet... Someone has done it to my helmet ... I don’t know who drew on my helmet.

Fulham: It is not appropriate behaviour...It was definitely not welcome by Ben...It is harassment... Ben challenged you each time you did it ... He said that when he confronted you with the allegation you would blame Nathan Rollason and vice versa, is this true?

Chaffey: Yes...It was just a game. I didn’t think that it was abuse...

Fulham: Well, Ben Donaldson didn’t think so [that it was a game)...It is totally unacceptable... It is sexual harassment... You have been with us less than 12 months, I’m afraid that you will learn a hard lesson as a result of your unwelcome actions... As a result you are summarily dismissed. 3

[31] The evidence of Mr Donaldson is that the drawings of male genitalia would appear on his equipment and Mr Chaffey and Mr Rollason would then play a game with him for their own amusement by each alleging that the other had been the perpetrator.

[32] On the afternoon shift of 17 December 2009 Mr Donaldson discovered a new drawing of male genitalia on his hard hat, which covered almost the entire area of the helmet. Mr Donaldson’s evidence is that Mr Chaffey told him it was Mr Rollason who had done the drawing. Mr Donaldson accepted this as he had observed Mr Rollason do such drawings.

[33] Mr Donaldson then went to the bathhouse where Mr Rollason’s clothes for travelling home after the shift were placed and poured about 300 ml of orange cordial onto them.

[34] Mr Donaldson then became upset with himself that he had been drawn down to the level of practical joking indulged in by Mr Rollason and Mr Chaffey and declined to engage in the game of blaming other people. Mr Donaldson informed Mr Rollason that he had put cordial on his clothes and suggested to him that he contact the surface and have someone rinse them out and dry them. Mr Rollason declined.

[35] At the end of shift Mr Donaldson and Mr Ham were, as part of routine procedure, required to walk the second means of egress and consequently did not arrive at the bathhouse until some 50 minutes after the rest of the crew.

[36] Mr Donaldson discovered that his travelling clothes were gone and those of Mr Rollason had been placed in his basket. Mr Donaldson identified a further practical joke. Mr Donaldson had a spare pair of trousers which he put on and took Mr Rollason’s clothes with the intention of washing them.

[37] On leaving the mine Mr Donaldson encountered the group drinking at the front gate and was flagged down by Mr Rollason, who was wearing his clothes. Mr Donaldson deposed that he was subject to heckling by some of the others.

[38] Mr Donaldson had not participated in the end of shift cycle drinks previously and considered that his non-participation was a further reason for the harassment he endured.

[39] Mr Donaldson deposed that he said to Mr Rollason:

“I hope you’re wearing underwear underneath them, ... you’re a dirty bugger” 4

[40] Mr Rollason concedes that he replied, “No”, and pulled the pants he was wearing down to show his pubic area to Mr Donaldson to confirm that he was not wearing underpants.

[41] I regard this as an act intended to humiliate and harass Mr Donaldson.

[42] Mr Donaldson deposed that Mr Rollason then opened the trousers he was wearing and exposed his genitals to him.

[43] Mr Rollason denies this.

[44] I do not believe him.

[45] It is not disputed that Mr Rollason found a Christmas shopping list in Mr Donaldson’s trousers. The following entries were added to that list prior to Mr Donaldson arriving at the gate:

• WASH ROLLO’S CLOTHES ( HOME)



• TOUCH MYSELF (DOWN THERE!)



• FINGER IN BUM (BY SELF)



• GET SOME NUTS!  5

[46] Mr Rowland admitted that he wrote the first three entries. This is confirmed by the evidence of Dr Strach, a handwriting expert brought to give evidence by Mr Sebbens on behalf of Austar.

[47] Mr Rowland deposed that he saw nothing wrong with this, seeking to pass it off as good natured banter engaged in with his brother “all the time”, adding that coalminers were “brothers underground” and accordingly no malice or offence should be taken.

[48] Dr Strach was unable to identify the writer of the final item, which supports the assertion that the note had been handed around the group. Someone other than Mr Rollason and Mr Rowland had access to the note after Mr Rowland added his contribution to the list.

[49] Mr Donaldson deposed that the “mob” were making a great joke of Mr Rollason wearing his clothes and that Mr Rollason further ridiculed him by reading the list out loud to the group who responded with laughter and calls of “what is”, referring to items from the list.

[50] Mr Donaldson was shattered by this behaviour as the items he had listed to buy for his wife and daughter as Christmas gifts were being ridiculed.

[51] Mr Rollason denies that he read the note aloud to the assembled group.

[52] I do not believe him. Mr Rollason, aided and abetted by Mr Rowland, embarked upon an alcohol fuelled public humiliation of Mr Donaldson for their own amusement and that of others present.

Harassment and Victimisation by Rowland

[53] Prior to Mr Rowland’s contribution to the events at the gate, there is an allegation that Mr Rowland exposed his genitals to Mr Donaldson while working underground in what is known as the 100 section.

[54] Mr Rowland’s version of this event is that Mr Donaldson was complaining of having wet boots. Mr Rowland had split the crutch of his trousers and put to Mr Donaldson that he had little to complain of, saying:

“Look what I have to put up with”.

[55] Mr Rowland deposed that it is not his practice to wear underwear at work and conceded that Mr Donaldson would have seen his scrotum.

[56] Mr Donaldson deposed that he voiced objection to Mr Rowland’s exposure, which was then repeated and a demonstration given to another member of the crew, Mr Matt Lee. This is denied by Mr Rowland. The evidence of Mr Fulham is that Mr Lee resigned from Austar on 28 December 2010, advising Mr Chandler, the Production Superintendent, that:

“I can see where this is going and I don’t want any part of it. I want to have a career in mining. I don’t want to be ostracised” 6

And to Ms Tracey Benn, a Human Resources assistant:

“I just need to get away from here, I don’t want to be involved”. 7

[57] In the course of cross examination Mr Endacott questioned Mr Donaldson as to why Mr Rowland may dislike him. Mr Donaldson proffered that he suspected Mr Rowland was irritated with him because he was the miner driver, while Mr Rowland worked in the roof bolting crew, which is a less prestigious role; as well as Mr Donaldson’s preference not to participate in crew social activities.

DEFENCE

[58] The CFMEU raised a number of separate issues in support of Mr Rowland and Mr Rollason.

Bullying complaint by Rowland

[59] The CFMEU asserts that the termination of Mr Rowland’s employment was motivated by management’s unhappiness with him as a result of Mr Rowland making an allegation of harassment against Mr Chandler.

[60] Mr Rowland complained that Mr Chandler had been angry and abusive to him in the course of a disagreement over whether roof bolting was being carried out correctly.

[61] An investigation was carried out which exonerated Mr Chandler and Mr Rowland remained unhappy about that.

[62] Mr Laverick gave evidence that he was present on Friday, 21 August 2009, when this event took place. Mr Laverick’s evidence is:

6. On Friday, 21 August 2009 Mr Chandler, the Undermanager in charge, addressed the Crew. I understand the discussion was about the panel standards and the roof support pattern. Mr Chandler has a very intimidating management style. Mr Chandler commenced the meeting in a very heated, fired up manner. Mr Chandler mentioned about the support pattern, the tails were too long on the bolts and the cutting sequence wasn’t being followed correctly. Some of the employees, including Mr Rowland, raised issues about what had been said. I can’t recall who said specifically what but someone said some things weren’t right. One employee said “When we performed the work, the Deputy was standing right beside us. Why didn’t he raise that we hadn’t done it properly?” The Deputies name is Mick Chandler, which was the Undermanager’s brother. Mr Chandler became angry because the issues had been raised by the employees and started shouting. Mr Chandler’s comments were riddled with profanities. Each time an employee raised an issue in defence of the panel condition, Mr Chandler attacked them. When Mr Rowland raised issues, I recall Mr Chandler demanded Mr Rowland’s resignation. I can’t recall the exact words but they were to the effect of supplying Mr Rowland and demanding Mr Rowland’s write a resignation out for him. Mr Rowland declined. Mr Chandler said words like ‘You can use my fucking pen”. Mr Chandler threw a pen on the paper and again demanded a resignation. Mr Rowland refused to resign.

7. The conduct of Mr Chandler to Mr Rowland was intimidating and abusive. I heard that Mr Rowland had put in a formal complaint against the conduct of Mr Chandler. I was never approached or asked about what had occurred by the Respondent. I later heard that nothing came of the complaint by rumour and chatter amongst the Crew. 8

Absenteeism and dispute proceedings by Rollason

[63] The CFMEU asserts that the motivation for the termination of Mr Rollason’s employment is management’s dislike of him due to absenteeism and actions taken in Fair Work Australia (FWA) by the union on his behalf.

[64] Mr Rollason deposed that he had been placed on a second level warning for absenteeism which he objected to on the basis that all of his absences were covered by a medical certificate and were a direct result of a medical condition for which he was receiving treatment.

[65] The CFMEU initiated proceedings pursuant to the Fair Work Act (“the FW Act”) which were heard by Commissioner Roberts and Vice President Lawler. The last of those proceedings took place in October 2009 and the matter left for the CFMEU to prosecute in the Federal Court if so instructed. It is put that that matter has not progressed due to Mr Rollason being indisposed because of a change in his medication.

Attitude of Management

[66] The CFMEU asserts that the conduct of Mr Fulham at a crew meeting on 24 December 2009 on resumption of work after industrial action in the form of a 24 hour strike in protest at the dismissal of Mr Rowland and Rollason was abusive and confronting.

[67] The CFMEU brought evidence from Mr David Laverick (Exhibit 25) who, whilst a member of the A crew, had not been at work on 17 December and as such had taken no part in the events of that evening. Mr Laverick’s evidence is:

10. The whole meeting went for approximately an hour, from 7.00am to 8.00am. The first part was the references to the Collective Agreement and Harassment Policy and the second part was directed to the Crew and the conduct of the employees who had been dismissed, specifically Mr Rollason. Mr Fulham revisited a number of times the same issues about Mr Rollason being an animal and his conduct and the comments about us being “a bunch of fucking animals”, “a bunch of fucking rapists” and “a fucking mob of animals and rapists”. 9

[68] Mr Fulham denies the use of this language but conceded that he had been firm and direct with the employees, intending to convey his disgust and concern over the behaviour. Mr Fulham’s evidence is:

88. In respect of paragraphs 5,8,9,10 and 11 I say that any reference to Mr Rollason as an “animal” was in the context of referring to Mr Donaldson’s complaint about Mr Rollason. As mentioned above at paragraph 15 when I met with Mr Donaldson on 22 December 2009, Mr Donaldson used the phrase “the animal” to refer to Mr Rollason. I used Mr Donaldson’s words to convey what Mr Donaldson had told me about how he felt at the time of the sexual harassment and bullying.  10

Attitude of Fullbrook

[69] The evidence of Mr Rowland is that on termination of his employment management undertook to provide the relevant termination documents that afternoon, which he says did not occur. Mr Rowland deposed that he was anxious to obtain the documents which specified the grounds of termination so that he could commence action for reinstatement.

[70] Mr Rowland telephoned Ms Fullbrook at her residence at 7.15 pm that evening seeking the documentation. Ms Fullbrook was bathing her baby and gave Mr Rowland short shrift.

[71] Mr Rowland asserts that Ms Fullbrook was abusive to him.

[72] Ms Fullbrook reported to Mr Fulham the next day that Mr Rowland had been abusive to her.

[73] The conduct of Mr Rowland is riddled with hypocrisy. He seems to carry a grudge against Mr Chandler for his attitude and demeanour towards him, however, feels that he is entitled to telephone Ms Fullbrook at her home in the evening; and is prepared to participate in the public ridicule of Mr Donaldson by exposing himself whilst working in the 100 panel and by writing on Mr Donaldson’s Christmas list.

[74] The robust exchange between Mr Chandler and Mr Rowland is regrettable and on examination there is room for behaviour modification of all participants. This exchange was concerning an important operational issue. If the roof bolting system is not correct or applied incorrectly, there are obvious and significant safety consequences.

[75] The phone call to Ms Fullbrook was motivated by Mr Rowland’s impatience and concern for himself, without any apparent consideration of his intrusion into Ms Fullbrook’s family. The abuse and ridicule of Mr Donaldson was for his own amusement and for the entertainment of the assembled group.

Nakedness not an issue

[76] It is put by the CFMEU that the regular practice at the mine is that at start of shift employees enter the “clean” side of the bathhouse, put their travelling (clean) clothes in a basket, walk unclothed through the showers to the “dirty” side of the bathhouse, put on work clothes and proceed to the coalface. At the end of the shift employees enter the “dirty” side, leave their work clothes in a basket on that side, walk through the communal showers, and after showering go to the “clean” side, put on their travelling clothes and depart.

[77] The defence that miners see one another naked twice per day, at the start and end of shift when they transit from one side of the bathhouse to the other, is misplaced.

[78] Deliberate exposure intended to embarrass or ridicule a person is of substantially different nature to the routine and passive change process. The defining difference is intent.

[79] I find that Mr Rowland intended to embarrass and belittle Mr Donaldson as part of a systematic and ongoing practice of harassment.

[80] I accept that an underground coalmine is a robust and indelicate workplace. That does not provide a licence for personal harassment of the type suffered by Mr Donaldson.

Failure to complain by Donaldson

[81] Mr Donaldson was criticised by Mr Endacott for not making a formal complaint earlier, suggesting that the exposure by Mr Rollason of his genitals and public masturbation had not occurred, because if it had Mr Donaldson, or any other mineworker witnessing such behaviour, should have and would have stopped it immediately.

[82] Mr Donaldson deposed that the workplace culture tolerated name calling and practical joking, and that there was a general reluctance to make complaints to management because:

• if every event was subject to formal complaint management would be fully occupied with complaints; and more importantly



• the workplace culture would result in ostracism and victimisation of a complainant.

[83] This latter point is supported by the exit interview of Mr Lee.

[84] Mr Endacott was invited to bring evidence to refute Mr Donaldson’s version of the workplace culture and declined to do so.

[85] Mr Endacott put to Mr Fulham that the behaviour attributed to Mr Rollason did not occur because, if it did, a Deputy would have observed it and taken action; and/or other mineworkers would have objected and made a complaint.

[86] Mr Fulham’s evidence is that it is unlikely that a Deputy would hear or observe behaviour of crew members in the dolly or transporter; putting that the Deputy usually sits in the front of the prime mover of the dolly car whilst crew are in a separate vehicle towed behind it. In the transporter the Deputy would sit in the front alongside the driver, facing forward. The crew sit in the rear along each side, facing inward. In order to observe the crew the Deputy would need to turn around and would only see the crew members on the opposite side, not those sitting directly behind him.

[87] In both cases hearing protection is worn due to the noise of the equipment, and the Deputy would be occupied with paperwork, equipment checks and observation of the mine working strata rather than close observation of the crew members.

[88] Mr Fulham deposed that mine workers may not complain as they would not want to offer themselves as the target for harassment as was visited upon Mr Donaldson.

[89] Mr Endacott submitted that as Mr Donaldson was not able to identify anyone at the gate other than Mr Rowland and Mr Rollason, the “whole shift” of persons well known to him being present supports a conclusion that the events he asserts did not occur.

[90] It is hardly surprising that Mr Donaldson could not remember anyone other than his primary tormentors. That he may not wish to implicate others is something those others involved should be thankful for.

Lack of procedural fairness

[91] The CFMEU submits that the allegations of harassment and victimisation were not put to Mr Rowland and Mr Rollason at the time of termination of employment as reasons for dismissal, and as such could not be relied upon.

[92] I prefer the submission of Mr Sebbens that:

“The real inquiry is not whether the decision to dismiss was justified at the time it was made on the facts then known but rather whether it was justified at that time in all the circumstances as they have emerged: Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378; Byrne & Anor v Australian Airlines (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ; Concut Pty Ltd v Worrell (2000) 103 IR 160 at[29], [46]; Bankstown City Council & Paris (1999) 100 IR 363 at 371-371.

Section 387(a) of the Fair Work Act 2009 (Cth) requires Fair Work Australia to be satisfied that “there was a valid reason for the dismissal”, not the reason relied upon by the employer; Pamela T Wilson v Australian Taxation Office (PR910942, AIRC, McIntyre VP, Harrison SDP, Lawson C, 9 November 2001) at [51]; MM Cables (A Division of Metal Manufacturers Limited) v Zammit (Print S8106, AIRC, Ross VP, Drake SDP, Lawson C, 17 July 2000) at [42].  11

[93] Mr Endacott submitted that management failed to follow the terms of the Austar Coal Mine Workplace Behaviour Complaints Procedure (“the Procedure”). Mr Endacott put that failure to follow the precise requirements of the Procedure was unfair to the applicants.

[94] This is not a matter where form should triumph over substance. The Procedure is a useful guide but is not determinative. If management were penalised for any failure to comply, then the value of the Procedure to employees would be lost.

[95] I am satisfied in this matter that there was adequate use of and reference to the Procedure and the application of it was adequate in the circumstances; particularly having regard to the uncooperative attitude of the applicants.

CONCLUSION

[96] I am satisfied that the employer had a valid reason for the termination of Mr Rowland and Mr Rollason. Consuming alcohol on site is sufficient.

[97] There can be no other reason for Mr Rowland to write offending comments on Mr Donaldson’s Christmas list than to humiliate and embarrass him.

[98] It is not disputed that Mr Rollason flagged down Mr Donaldson to invite him to the party. At this time he had discovered the note in Mr Donaldson’s trousers and Mr Rowland and another had written on it. The intention was clearly to have some more fun at Mr Donaldson’s expense.

[99] The specific evidence in respect to the other allegations discussed above leads to a comfortable satisfaction that on the balance of probability those events as deposed by Mr Donaldson did occur.

[100] The conduct attributed to Mr Rollason and Mr Rowland is reprehensible and intolerable. The hypocrisy and arrogance of the arguments cobbled together in an attempt to explain and defend the indefensible is astonishing.

[101] There is no lack of procedural fairness or any other mitigating factors which would warrant intervention.

[102] The application for remedy is refused.

DEPUTY PRESIDENT HARRISON

Appearances:

Mr K Endacott, CFMEU (Applicant)

Mr T Sebbens, Solicitor, Blake Dawson Lawyers (Respondent)

Hearing details:

Newcastle,

2010

September 21, 22 and 27

Final submissions:

October 11

 1 (1988) 25 IR at 235

² (1988) 25 IR at 235 at 244 - 245

 3 Ex 33, Statement of Francis Fulham, para 40

 4   Transcript 22/9/10 PN 1461

 5 Ex 11

 6 Ex 33 para 19

 7 Ex 33 para 20

 8 Ex 25, Statement of David Laverick, para 6

 9   Exhibit 25 para 10

 10 Ex 33, para 88

 11   Respondent’s Outline of Submissions, p8

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