Joshua Paul Craft v Glennies Creek Coal Management Pty Ltd
[2010] FWA 5147
•12 JULY 2010
[2010] FWA 5147 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Joshua Paul Craft
v
Glennies Creek Coal Management Pty Ltd
(U2009/13782)
COMMISSIONER STANTON | NEWCASTLE, 12 JULY 2010 |
Termination of Employment – alleged unfair dismissal
[1] This is an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act)
[2] The applicant, an underground production employee with 9 years service was dismissed summarily by the respondent employer, Glennies Creek Coal Management Pty Ltd on 13 November 2009 for allegedly writing racially discriminatory graffiti on a longwall crib room whiteboard during day shift on 28 June 2009 directed towards another employee, Mr Mark Frazer. The applicant claimed he had never worked on the same crew as Mr Frazer and contended their relationship was cordial.
[3] The applicant denies writing the graffiti and further claims he had no motive to write the graffiti.
[4] The applicant alleges the dismissal was harsh, unjust, and unreasonable and, sought reinstatement to his position of underground production employee without loss of entitlements.
[5] The applicant further asserts the respondent’s investigation was flawed and broadly directed to “get someone to volunteer … or fess up that they had done the graffiti”. He further asserts anyone working on or about 28 June 2009 could have written the graffiti.
[6] The investigation was flawed because only a small sample of specimen handwriting was subject to examination. With respect to the handwriting examiner’s report handed to him on the day of his dismissal, the applicant contends he was given inadequate time to “show cause” and fully consider the document. He also asserts that had he made an admission concerning the graffiti, he would have been given a warning.
[7] On finding the graffiti, the respondent engaged a handwriting and questioned document examiner to examine specimen handwriting of some eight longwall shift crew employees as part of its investigation into the matter. The examiner’s report drew the conclusion that it was “highly probable” the applicant wrote the graffiti.
[8] The respondent asserts the offending graffiti amounted to harassment and discrimination, conduct in breach of its Prevention of Workplace Harassment and Equal Employment Opportunity policies.
[9] The respondent has a zero tolerance policy towards graffiti and employees found to breach that policy are subject to an established disciplinary policy. The intent of that policy was articulated to employees via a series of ‘toolbox talks’ during May 2008 and July 2009.
[10] The applicant attended a staff training session in relation to the respondent’s workplace harassment and anti-discrimination policies on 6 February 2009
[11] The Respondent also asserts the applicant’s conduct undermined the confidence and trust that underpins the employment relationship, particularly in relation to his capacity to work cooperatively and safely with other employees.
[12] On the day in question, the crew “ran short” with only 5 members on shift. According to the respondent, the longwall was breaking stone and little or no coal was produced that shift.
Evidence
For the applicant
Mr J Craft (the applicant)
Mr W Laing (crew member who worked with / alongside the applicant at the time of the incident)
Mr T Hardy (CFMEU Glennies Creek Lodge Secretary)
Mr G Kelly (CFMEU Northern District Branch Secretary)
For the respondent
Mr T Longmate (Longwall Superintendent)
Mr J Janetzki (Relief/Support Manager)
Mr G Linde (Glennies Creek Operations Manager – Underground)
Mr J Wagstaffe (Compliance Superintendent & Safety Superintendent)
Mr M Nash (Group Manager Human Resources for Vale Australia Pty Ltd)
Dr S Strach (Senior Forensic Handwriting & Questioned Document Examiner)
Applicant
[13] It was the applicant’s evidence that he worked a weekend day shift which comprised a 12 hour shift between 8am and 8pm on Friday, Saturday and Sunday. The weekend shift comprised approximately 30 employees and included production and engineering trades employees, mechanical engineers, the under manager and mine deputies. In addition, a number of contract employees were also engaged on weekend day shift. At the time of his termination the applicant was working in longwall panel 9. His normal shift crew comprised four production employees, two fitters, an electrician, a mine deputy and himself.
[14] At the commencement of work on 13 November 2009, the applicant was informed by the CFMEU lodge secretary, Mr Todd Hardy that the respondent had sought a meeting with him concerning the graffiti incident. Present at the meeting were Mr Gerald Linde, Mine Manager, Mr Michael Nash, Vale HR Manager, and Mr Hardy. When Mr Linde alleged the applicant had written the graffiti, he denied the allegation.
[15] Mr Linde referred to a forensic report entitled “Scientific Examination of Documents in the matter of Integra Coal – Graffiti” dated 6 October 2009. Shortly thereafter, Mr Linde handed a copy to the applicant and Mr Hardy and suggested they find a quiet location to consider its contents over the next hour or so. Mr Linde refused a request from Mr Hardy to send a copy to the local Union office for comment.
[16] The applicant and Mr Hardy subsequently met to consider the report. Mr Hardy contacted the Union’s Mr Keenon Endacott for advice. A copy of the report was also sent to Mr Endacott for consideration. During the intervening period, the applicant read and considered the report which suggested he may have written the graffiti. A request that the applicant be given the weekend to consider the report and respond on Monday, 16 November was denied.
[17] When the meeting reconvened the applicant denied he had written the graffiti. Mr Hardy told him it was Mr Linde’s view the applicant could either resign or be terminated. The applicant’s employment was subsequently summarily dismissed and he was presented with what he alleged was a pre-prepared letter of termination.
[18] It was the applicant’s evidence that he did not see the graffiti on the day it was purported to have been written. During the investigation of the matter, Mr Tony Longmate, the Production Manager, showed employees photographs of the graffiti. The applicant and all members of the crew denied writing the graffiti and were unaware of its source. During this aspect of the investigation, Mr Longmate said, “If the person responsible owned up he would only be issued with a warning letter”.
[19] In or about the third week of July, Mr Janetzki, a relief manager, questioned the applicant whether he had written the graffiti. His response was “No” nor did he know who had. Mr Janetzki later said if an employee admitted to writing the graffiti, the outcome would be a warning. However, if there was no admission, a copy of the graffiti would be sent to a forensic writing expert.
[20] It was the applicant’s recollection of events that Mr Janetzki had not asked him to account for his movements during shift on 28 June 2009, nor was he asked whether he had ever heard an employee describe Mr Frazer in unfaithful terms or had indicated a dislike for him.
[21] According to the applicant, crew members would use the crib room at the start and end of shift. They would also return during shift for a meal, toilet break or to arrange transport. It was his recollection that on 28 June 2009, he entered the crib room at the start of shift and took a meal break at 4.00pm before returning at the completion of shift. He recalled the crew worked through shift and took their crib at the end of shift.
[22] The applicant could not recall either having the opportunity or entering the crib room alone on 28 June 2009. In any event, if he had written the graffiti, another crew member would have witnessed that event. Further, any absence during shift would have been observed by a fellow crew member or the mine deputy.
[23] The applicant contended had he been aware that the respondent would allege he had written the graffiti, he could have developed a timeline to account for his movements during the entire shift. However, it was impossible to recall such events at the time of his dismissal.
[24] It was the applicant’s evidence that during a meeting conducted by Mr Longmate in mid July 2009, a mine deputy, Mr Steve McKinlay stated words to the effect:
“It can’t be right that one of the employees from this crew had written the graffiti. There was no opportunity for someone to have done it. I’m going to phone upstairs and tell them that it couldn’t have been someone from this crew”.
[25] The applicant further contended he was unaware “Mr Frazer had dumped on a couple of employees on his shift” until after the respondent had made inquiries as to who had written the graffiti.
[26] In cross examination, the applicant confirmed it was possible for crew members to leave their work location without informing their deputy. He could not recall leaving the work location during shift on 28 June 2009.
[27] The applicant agreed Dr Strach’s report contained only seven pages and when considering that report on 13 November 2009, he had understood the conclusions reached. Further, the report had not given him cause to reconsider his position concerning the graffiti.
William Laing
[28] Mr Laing worked on the weekend crew with the applicant. He confirmed the applicant’s recollection that on 28 June 2009, the shift was short two operators and the crew had worked through crib. The break was not taken until the end of shift allowing the longwall to produce all day.
[29] Mr Laing contended that if the applicant had written the graffiti, a crew member, the deputy or himself would have observed the event. He certainly did not observe the applicant writing any graffiti on a whiteboard in the crib room located some 40 metres from the main travel road. Crew members normally enter the crib room located some 40 metres from the main travel road at the commencement of the shift when the deputy explains shift work requirements. The crew subsequently travels to the longwall together.
[30] Mr Laing had no recollection of the applicant leaving the longwall area to go to the crib room during the shift. It was his evidence that if a crew member was required to leave the longwall area, for example, for a toilet break, he would inform the deputy who, he contended, would be able to recall such requests. In his view, anyone working underground that day could have written the graffiti.
[31] Mr Laing also confirmed the applicant’s contention that the shift deputy, Mr McKinlay had informed the respondent that he did not believe the graffiti was written by a member of his crew.
[32] It was Mr Laing’s evidence that one or two weeks after the graffiti incident the respondent spoke with the full crew and subsequently met with them individually. He recalled that at one of those meetings the respondent stated if the employee “fessed up to having written the graffiti… they would not be severely dealt with”.
[33] Mr Laing further contended that during those meetings he was not asked any questions concerning the whereabouts of crew members during the shift. Nor was he asked whether in his opinion members of the crew had or had ever expressed a dislike for Mr Frazer. Whilst unaware of any animosity between the applicant and Mr Frazer, Mr Laing understood there was some friction between Mr Frazer and members of another crew and, there was a rumour circulating that Mr Frazer “had been slagging his fellow work mates off to the company and had been recommending that people be terminated”.
[34] In cross examination, Mr Laing confirmed that when operating the longwall shearer, he would not always aware of the applicant’s whereabouts. He agreed the applicant could have left the work area on 28 June 2009 without his knowledge. He also confirmed the crib room whiteboards were not visible from certain locations within the crib room.
Todd Hardy
[35] Mr Hardy deposed he was aware that some members of Mr Frazer’s crew were concerned he had met with the respondent and there were rumours he had made some adverse comments concerning certain employees. In that regard, he stated Mr Frazer had privately suggested to him that some animosity existed between himself and his crew over the comments made. Otherwise he was unaware of any animosity towards Mr Frazer.
[36] It was Mr Hardy’s evidence that he was generally unaware of the graffiti incident until early November 2009 when Mr Linde approached him to ascertain whether he was available to attend the meeting between the applicant, Mr Nash and himself. The respondent’s representatives subsequently indicated they viewed the issue seriously and informed the applicant there was a forensic evidence report proving the graffiti had been written by the applicant. The respondent also confirmed during the meeting that no complaints had been raised concerning the graffiti.
[37] Following a number of adjournments, the respondent advised Mr Hardy he and the applicant could have an hour to consider the report. Mr Hardy subsequently contacted the Union’s Mr Grahame Kelly and Mr Keenon Endacott. He was also informed the respondent had enough evidence to prove the graffiti was written by the applicant and if he did not resign, he would be dismissed.
[38] When the meeting reconvened the applicant pleaded his innocence. Mr Hardy urged Mr Nash to contact Mr Kelly at the Union office. Mr Nash subsequently telephoned Mr Kelly. Shortly thereafter, the meeting reconvened and the respondent advised it was terminating the applicant’s employment immediately. The applicant was subsequently handed pre-prepared letter of termination. A request that the applicant be afforded additional time over the weekend to consider his options and respond to the handwriting report was denied.
[39] In cross-examination, Mr Hardy agreed that given the applicant’s position on 13 November 2009 that he did not write the graffiti and accordingly, he would not resign, he did not require additional time to consider his response.
Grahame Kelly
[40] Mr Kelly confirmed Mr Hardy’s account concerning the request that Mr Nash should call him to discuss the matter. He deposed the principal purpose of the proposed conversation was to suggest to Mr Nash that the matter be put aside until a district official of the Union could be in attendance. He also raised the Union’s concerns regarding reliance on a handwriting expert’s report. Mr Nash subsequently informed Mr Kelly he would consider the request. However, he was later informed the respondent had decided to dismiss the applicant.
Respondent
Tony Longmate
[41] Mr Longmate deposed that at approximately 8:35pm on 28 June 2009, he noticed graffiti on the crib room whiteboard. Although it was possible that anyone working in the mine could have accessed the crib room, it was Mr Longmate’s evidence that ordinarily, only the longwall crews access crib rooms. Subsequently, he asked all members of the night shift crew whether the graffiti had been there on the previous night shift. The night shift deputy, Mr Trent Frazer said words to the effect “definitely not”. Shortly thereafter, Mr Longmate arranged for the graffiti to be photographed and he proceeded to prepare an incident report consistent with a site directive requiring graffiti to be reported when found.
[42] Mr Longmate spoke to the weekend day shift crew when they returned for work on 3 July 2009. The weekend nightshift crew when interviewed earlier were adamant there was no graffiti present the previous night. Accordingly, he assumed that if the graffiti was present earlier, it would have been reported.
[43] During the meeting, Mr Longmate showed crew members photographs of the graffiti. They subsequently denied writing the offending words. Mr Longmate informed the meeting the respondent was going to examine employee handwriting and in the event a member of the crew had written the graffiti, “it would be best to own up now”. He could not recall the applicant’s recollection that he had said, “If the offender promptly owned up, he would only be issued with a warning letter”.
[44] Mr Longmate deposed Mr McKinlay contacted him by telephone after the meeting with the day shift crew and said words to the effect “it could not have been anyone off this crew as no one was unsupervised or left alone in the crib room that day from the crew”. Mr McKinlay spoke to him again on 4 July 2009 to advise he had spoken to each member of the crew and no one had admitted writing the graffiti.
[45] On or about 7 July 2009, Mr Longmate examined handwriting set out in various training documents related to members of the weekend day shift crew to establish if there were any similarities between that handwriting and the graffiti. After looking at the applicant’s handwriting in a particular training document, he concluded there was enough similarity to report this matter to Mr Linde. His direct involvement in the matter subsequently ceased.
[46] In cross examination, Mr Longmate confirmed the role of a deputy was to directly supervise all persons working within his district and in the event the deputy was required to leave his district, production must cease. He agreed the crew was “working short” on 28 June 2009 and in the event a crew member left the longwall that shift for any reason, other crew members “should know”.
[47] Mr Longmate confirmed the interviews conducted on 3 July 2009 involved little more than a question asking crew members, “had you seen it the day before?”. He also acknowledged that he had failed to make inquiries whether any crew members would have had an opportunity to go to the crib room and write on the whiteboard during their shift. Given the location of the crib room being approximately 40 metres from the “main gate”, it was Mr Longmate’s evidence that other personnel could have accessed the crib room during the 28 June 2009 shift. However, in re-examination he agreed it was unusual for personnel to deviate from the main gate during normal operation unless they were going to the longwall.
John Janetzki
[48] Mr Janetzki deposed that on 7 July 2009, he attended a senior manager’s meeting, where Mr Linde provided an incident report concerning the graffiti. Between 7 and 24 July, he conferred with Mr Nash about how best the matter could be progressed as the weekend day shift crew had denied involvement. Mr Nash supported the decision to determine who was responsible for the graffiti. Shortly thereafter, Mr Linde, Mr Wagstaffe, Mr Longmate and himself interviewed the weekend day crew.
[49] On 24 July 2009, he and Mr Wagstaffe interviewed all members of the weekend day shift who worked on 28 June 2009. All employees with the exception of Mr McKinlay were assisted and supported by Mr Scott Fryer, a Union representative. Each crew member confirmed they understood the terms of the respondent’s workplace harassment policy and acknowledged receipt of training. They were also told management was going to take the matter further and establish evidence that would identify the writer.
[50] With reference to certain comments set out in the statement of the applicant concerning Mr Frazer, Mr Janetzki stated the purpose of those workshops was to establish how best to improve mine productivity and all the employees were encouraged to speak their mind.
[51] In cross examination, Mr Janetzki contended there were few personnel working at the mine at the time of the incident other than production crew members. He agreed the nature of the interviews he conducted on 24 July 2009 were better characterised as a series of meetings rather than an investigation. Mr Janetzki agreed with the proposition that anyone working underground on 28 June 2009 could have written the graffiti. However, it was, in his opinion, unlikely that a member of the development crew was responsible.
[52] Further, it was his understanding that Mr Frazer’s comments were directed to members of his own crew and through rumours, he was aware that they were not happy about the comments made.
Gerald Linde
[53] Mr Linde deposed that at approximately 7:30am on 29 June 2009, he attended the daily review meeting attended by superintendents and coordinators, where a decision was made the incident should be further investigated to determine who was responsible. The meeting had determined the graffiti was written during the day shift of 28 June 2009 and he was satisfied the graffiti was written by a day shift crew member. Mr Linde referred to an attachment to his statement which set out a mine directive that graffiti will not be tolerated and is subject to disciplinary policy. Further, deputies who discover graffiti are required to investigate and determine whether the individuals involved can be identified.
[54] It was Mr Linde’s evidence that Mr Janetzki and Mr Wagstaffe conducted separate interviews with each member of the day shift crew. Mr Wagstaffe had informed crew members that management was taking the matter seriously and would seek external assistance to determine who was responsible.
[55] On or about 14 July 2009, Mr Linde asked Mr Wagstaffe to organise a handwriting expert. Mr Wagstaffe subsequently arranged for SAFE Consulting to engage Dr Steven Strach, a handwriting and questioned document examiner, to examine certain handwriting samples from a number of weekend day and night shift crew members. Mr Frazer’s handwriting was also provided to Dr Strach. From this sample, Dr Strach established there was evidence supportive of a proposition that the applicant wrote the graffiti. Mr Wagstaffe arranged for additional samples of the applicant’s handwriting taken from his training records to be examined by Dr Strach.
[56] A second report provided to SAFE on 6 October 2009 found it was “highly probable” that the applicant wrote the graffiti. Mr Linde received his copy of the report on or about 16 October 2009 and later discussed the matter with Mr Nash. A decision was made to interview the applicant and obtain his response.
[57] The earliest Mr Nash, Mr Todd Hardy, the applicant and himself could meet was 13 November 2009, where according to Mr Linde, he and Mr Nash referred to a prepared script, a copy of which was attached to his statement. Mr Linde told the applicant the purpose of the meeting was to discuss the graffiti incident. He further explained that members of the weekend day and night shift crews had been interviewed and denied responsibility.
[58] Mr Linde subsequently informed the applicant the respondent’s investigation pointed to him being responsible. Following a further denial, Mr Linde showed he and Mr Hardy a copy of the report and explained its methodology. The report was the second stage of the investigation and following its consideration, the respondent had concluded other members of the crew were not responsible.
[59] Following a break at approximately 10.00am, a copy of the report was given to the applicant at Mr Hardy’s request and they were given an hour to consider its contents. Mr Linde could not recall telling Mr Hardy that he could send a copy of the report to the Union office. In relation to the applicant’s statement, Mr Linde could not recall Mr Hardy’s request that the applicant be given an extension to the following Monday to respond. He also denied the applicant’s allegation that he had asked him to either resign or his employment would be terminated. However in “off the record” discussions with Mr Hardy, Mr Linde admitted stating “the best outcome for all would be a resignation”. After a further break to give Mr Nash and himself further time to consider the matter, it was decided the applicant’s employment should be summarily terminated. Shortly thereafter the applicant and Mr Hardy were called back into the office and informed of the respondent’s decision.
[60] Mr Linde denied the applicant’s statement that he was presented with a pre-prepared letter of termination. It was Mr Linde’s evidence that he and Mr Nash had drafted a template letter during the hour or so the applicant and Mr Hardy reviewed the report. However that letter was not completed until the decision was made to proceed with the termination.
[61] In cross examination, Mr Linde confirmed the purpose of the meeting on 13 November 2009 was to present the findings of the investigation and provide the applicant with an opportunity to “own up” as the respondent was convinced he wrote the graffiti. He also confirmed only a sample of handwriting specimens were subject to assessment by Dr Strach.
[62] Mr Linde stated that during the course of Dr Strach’s assessments, the applicant was not told he was subject to close investigation because further samples had been sought for analysis and the respondent at the time had no conclusive report from Dr Strach.
[63] In terms of the images assessed by Dr Strach, Mr Linde agreed the photographs of the graffiti supplied for analysis “were not of the highest quality”. He agreed there was a possibility that a person other then the applicant wrote the graffiti. However, Dr Strach had formed the view this possibility was “highly unlikely”. He also rejected the contention that if the applicant had left the longwall during shift, someone on the shift would have known.
[64] In re-examination, Mr Linde confirmed the respondent took Dr Strach’s definition of “highly probable” into account when assessing whether to dismiss the applicant.
Jason Wagstaffe
[65] Mr Wagstaffe was given responsibility for investigating the graffiti following a meeting of superintendents on 29 June 2009. The respondent viewed the graffiti as a direct personal attack on an individual employee in breach of established workplace harassment policies. Mr Janetzki was assigned to assist him. Mr Wagstaffe stated toolbox meetings conducted on 16 May 2008 and 2 July 2009 dealt with graffiti and the respondent’s zero tolerance policy.
[66] It was Mr Wagstaffe’s evidence that the crib room was some 500 metres from the longwall production district. He further contended that the work location of “North Mains”, the other location of work on 28 June 2009, was approximately 1 km from the crib room. In his view, crews allocated to work in the longwall district on day shift on 28 June 2009 would not have worked anywhere else that shift. Similarly, those allocated to work in the North Mains production district would not have left that area under normal circumstances and only when directed to. Accordingly, only night and day shift crews working on the longwall would have ordinarily accessed the longwall crib room on 28 June 2009.
[67] Between 10 and 17 July 2009, Mr Wagstaffe had occasion to show photographs of the graffiti to Mr Michael Morton, the Longwall Project Superintendent, who suggested the hand writing looked similar to the applicant’s handwriting based on certain handwriting he had observed during training exercises.
[68] Mr Wagstaffe recalled he conferred with Mr Longmate between 10 and 17 July 2009 when Mr Longmate confirmed Mr Frazer, the longwall night shift deputy, did not recall seeing the graffiti either at the end of the 28 June 2009 night shift or prior to the start of the 29 July 2009 night shift.
[69] Following his discussions with Mr Longmate, he and Mr Janetzki concluded the graffiti was written during the 28 June 2009 day shift. With reference to the respondent’s decision to engage a handwriting expert, Mr Wagstaffe deposed he assembled from training records a selection of handwriting samples of employees who were engaged on the longwall day and night shifts worked on 28 and 29 June 2009. The sample also included Mr Frazer’s handwriting.
[70] Mr Wagstaffe stated all members of the weekend day shift crew interviewed by Mr Janetzki and himself on 24 July 2009 were accompanied by a representative of their choice and all crew members, other than the deputy, chose Mr Fryer, the weekend day shift electrician, as their representative. When interviewed, each crew member was shown a colour photograph of the graffiti and the respondent’s workplace harassment policy. They were told if no crew member owned up, the respondent would engage a handwriting expert to determine the writer.
[71] On 28 July 2009, an email from SAFE advised Dr Strach’s initial report had determined there was evidence supportive of a proposition that the applicant had written the graffiti. Dr Strach sought further samples of the applicant’s handwriting to verify his initial conclusion. Mr Wagstaffe’s involvement in the matter ceased following receipt of Dr Strach’s final report on 7 October 2009.
[72] In cross examination, Mr Wagstaffe admitted that for the purposes of the investigation, it was unnecessary for him to be aware of the precise location of the crib room because the respondent expects staff “to be where they are (told to be) when they’re given instructions”. Accordingly, he contended that only longwall crew members would have used the longwall crib on 28 June 2009. However, he conceded a small number of other workers, including outbye deputies would have passed the crib room during their shift.
[73] Mr Wagstaffe confirmed the investigation had ceased following receipt of Dr Strach’s report. Insofar as Mr McKinlay’s contention that no one from his crew could have written the graffiti, Mr Wagstaffe stated he believed the statement “was probably false” as his district was “some 500 metres on the outbye side of the wall and 500 metres on the return side of the wall”. Accordingly, as Mr McKinlay was required to undertake inspections every two hours, he could not have been aware of the precise whereabouts of his crew of the duration of the shift. His statutory inspection report for 28 June 2009 indicated the required inspections were undertaken.
Michael Nash
[74] Mr Nash’s evidence largely confirmed events outlined by Mr Linde concerning the retention of a forensic handwriting expert and the meeting with the applicant and Mr Hardy 13 November 2009. He confirmed the use of a prepared script.
[75] Mr Nash recalled that during the meeting on 13 November 2009, Mr Hardy asked Mr Linde and himself whether Mr Frazer had made a formal complaint against the applicant. In response, Mr Nash said that he and Mr Linde explained that as Mr Frazer was unaware of the applicant’s identity, he was in no position to make a complaint.
[76] Mr Nash denied Mr Linde told the applicant “you can either resign or you will be terminated” or any similar words to that effect. It was Mr Nash’s evidence that the matter of the applicant resigning arose in an “off the record” conversation he and Mr Linde had with Mr Hardy during the break given to consider the report. During that “off the record” discussion, Mr Nash said he told Mr Hardy that unless the applicant could show cause, his employment would be terminated. Mr Hardy’s response was that the applicant would deny the allegation. He later asked what the best outcome for the applicant would be and in response Mr Nash said he and Mr Linde replied if the applicant could not show cause, it might be better if he resigned rather than be dismissed.
[77] Mr Nash confirmed it was Mr Kelly’s view that the matter “could be sorted out”. He also stated the applicant would continue to deny the allegation and if dismissed, there would be an unfair dismissal claim.
[78] It was Mr Nash’s evidence that he and Mr Linde subsequently determined there was sufficient evidence to suggest the applicant wrote the graffiti and accordingly such conduct warranted dismissal. Mr Nash denied the allegation that the termination letter was drafted prior to the show cause meeting. Rather, it was prepared during the break when the applicant was given time to consider the report and later finalised after discussions with Mr Kelly.
[79] It was Mr Nash’s evidence that the respondent had an obligation to investigate the matter because of the language used, his understanding of discrimination law and the respondent’s duty of care to protect employees affronted or offended by the graffiti.
[80] In deciding to dismiss the applicant, Mr Nash stated Dr Strach’s seven page report, advice and conclusions led him to believe it was highly probable the applicant wrote the graffiti and in terms of the civil standard of proof, “highly probable put you well past that balance”.
[81] In cross examination, Mr Nash confirmed he was not involved in the investigation. The applicant was dismissed following consideration of Dr Strach’s report and conclusion that it was highly unlikely a person other then the applicant wrote the graffiti.
[82] Mr Nash dismissed the applicant’s contentions that given the duration of the investigation it was unfair to simply hand him a copy of Dr Strach’s report and ask that he “show cause”, without prior warning, on 13 November 2009.
Dr Steven Strach
[83] Dr Strach has worked in the field of forensic document examination since 1974 when he commenced training in the Questioned Document Section of the Metropolitan Police Forensic Science Laboratory in London. Appendix 4 to his statement set out a resume detailing his various university qualifications and memberships of professional societies and organisations related to forensic science and document examination.
[84] Dr Strach deposed that he was retained on 17 July 2009 with instructions to examine and compare graffiti style handwriting and specimen handwriting provided by the respondent with the object of determining whether any of the writers wrote the graffiti. He confirmed his preliminary findings were supportive of a proposition that the graffiti was written by the writer of specimen handwriting attributed to the applicant.
[85] On 19 August 2009, Dr Strach received further instructions to undertake a detailed examination and comparison of the graffiti and a number of other documents received in their original form with the object of determining whether the applicant wrote the graffiti.
[86] Dr Strach referred to his report dated 6 October 2009 which set out the following:
- Details of the instructions and materials received for the purpose of the detailed examinations;
- Methodology used; and,
- Observations and Conclusions (including preliminary examination) and Resume.
[87] For the purposes of these proceedings Dr Strach prepared charts of enlarged images of the handwriting he examined on behalf of the respondent.
[88] Despite noting some limitations concerning the examination of specimen hand writing, Dr Strach concluded:
As a result of my observations and within the limitations that applied to the examinations, I have reached the conclusions expressed at points (a) and (b) below.
a) It is highly probable that the writer of the specimen writings attributed to Josh Craft wrote the questioned graffiti referred to as Q1 in the main part of the report.
b) There is evidence supportive of the proposition that the writer of the specimen writings attributed to Josh Craft wrote the questioned graffiti referred to as Q2 in the main part of the report.
[89] Dr Strach referred to a number of charts containing enlarged images of the handwriting examined to demonstrate reasons for the conclusions expressed in his report. He said the main purpose of the examination was to compare the structure of “letter forms” and establish “common word form” and similarity.
[90] Dr Strach provided the following definition of “highly probable” in the context of his conclusion that the author of the graffiti was also the writer of the specimen handwriting:
By highly probable, I mean that I’m almost certain that the questioned handwriting in this case was written by the writer of the specimen handwriting. However, there is some limiting factor. In general terms, it’s often the amount of handwriting in question or when the questioned document is a reproduction that has reduced the level of certainty attainable, and I cannot entirely eliminate the possibility of this being another person’s writing, but to consider the alternative hypothesis of it being another person’s writing to be highly unlikely. In this specific case the questioned document was a reproduction. In fact, it was sent to me as a photographic image, so there are two limiting factors in there for this particular examination.
[91] Dr Strach elaborated that he was provided with a photograph of the graffiti and could not examine the fine details of the structure of the handwriting. He concluded he was able to undertake a reasonable assessment of the shapes of the letter characters contained in the photograph.
[92] It was Dr Strach’s evidence that within his understanding of the term, “balance of probabilities”; the balance of probability would lie with a conclusion of “probable” upwards to “highly probable” and “definite”.
[93] In cross examination, Dr Strach contended that in circumstances where only a limited number of persons could have been in the area to write the graffiti, which is the present case, the evidence can be viewed “as being even stronger” if there was negative evidence against other persons having written the graffiti. Dr Strach also confirmed his view that there was insufficient evidence to provide a definite conclusion under the hierarchy of conclusions available, ranging from “no evidence” to “definite”. Accordingly, he assessed the evidence to be “highly probable” on the grounds that he was almost certain, but not definite that the applicant wrote the questioned writing.
Submissions
Applicant
[94] Thematic in Mr Endacott’s submissions was the contention the applicant was not the author of the graffiti, the applicant had denied he was the author and, in the event that he did write the graffiti, other members of the crew would either have observed him or recalled there was on opportunity for him to write the graffiti during shift 28 June 2009. Any person working on 28 June 2009 could have written the graffiti. Indeed, the shift mine deputy, Mr McKinlay had told Mr Longmate that none of his crew, including the applicant, had the opportunity to attend the crib room unsupervised during shift on 28 June 2009. Mr McKinlay was not called to give evidence for the respondent.
[95] Mr Endacott submitted the longwall crew works as a team and accordingly “the team knows where other people are at any time and…would have known had someone snuck off and attended the crib room”. Further, crib was taken at the end of shift on 28 June 2009 because it was short manned. In that regard, Mr Endacott contended the opportunity for crew members to visit the crib room was restricted. It was therefore open to the Tribunal to conclude the applicant did not enter the crib room unsupervised on 28 June 2009 nor did he have an opportunity to write the graffiti.
[96] Mr Endacott argued there was no real investigation and in the alternative, if there was, the investigation was flawed. The events of 3 and 24 July were simply meetings of employees with the objective of obtaining an admission. There was no attempt to establish whether any members of the crew were aware of who had written the graffiti. There was no attempt to interview crew members so as to establish individual time lines that could define crew member whereabouts and identify opportunities to write the graffiti.
[97] The respondent failed to consider the possibility that another person working on 28 June 2009 may have “some sort of malice against Mr Frazer”.
[98] Mr Endacott asserted the sample of handwriting submitted for examination was small and Dr Strach’s conclusion that it was “highly probable” the applicant wrote the graffiti does not exclude the possibility that another member of the crew or another person was responsible.
[99] On Mr Linde’s evidence, the applicant was dismissed “because he didn’t agree that he’d written the graffiti”. Messrs Linde and Nash ignored the accounts of crew members who had said they did not know who was responsible and the mine deputy, Mr McKinlay. The applicant had shown no animosity towards Mr Frazer and was unaware of any friction between Mr Frazer and members of his crew until told by the respondent.
[100] There was no valid reason for the dismissal. Dr Strach was not certain the applicant was responsible and in cross-examination conceded the most appropriate means to assess certainty would be to physically witness his handwriting.
[101] Mr Endacott contended the evidence lacked certainty and the Tribunal must be satisfied that the serious allegation against the applicant can be sustained. In his submission, given the seriousness of the allegation, the Tribunal should adopt a standard “up the scale of probability”.
[102] Mr Endacottreferred to the decision in Brinks v Transport Workers’ Union of Australia (Brinks), 1 where the Full Bench referred to the decision of the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others2 and in particular, the following passage from that decision, which formed part of the joint judgement of Mason, C.J, Brennan, Deane and Gaudron JJ:
“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. 3 On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear4 or cogent5 or strict6 proof is necessary “where so serious a matter as fraud is to be found”.7 Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct8 and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v Briginshaw 9:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.”
[103] Mr Endacott urged the Tribunal to consider the principles enunciated in Brinks when determining “the balance of probability” in this matter.
[104] It was the Union’s case that applicant was given insufficient opportunity to respond to the allegations. The respondent had formed the view in August 2009 that the applicant was the author. The applicant was not informed about the allegation until 13 November when he was asked to show cause why he should not be dismissed. Further, he was afforded insufficient opportunity to properly consider a detailed report.
[105] Mr Endacott submitted the respondent formed part of a large international corporation and accordingly, it should have undertaken a thorough investigation rather then simply rely upon an assessment from a handwriting expert. Individual crew members should have been interviewed concerning the movements of the applicant and others on 28 June 2009.
[106] In conclusion, Mr Endacott urged the Tribunal to consider the fact that the applicant had eight years service and the respondent “took the harshest action possible” in summarily dismissing him.
Respondent
[107] Mr Fleming submitted the unchallenged evidence before the Tribunal was that a highly experienced forensic handwriting expert had determined it was highly probable the applicant wrote the graffiti. Moreover, the conduct relied upon was serious misconduct. In cross examination, the applicant stated he considered the messages written on the whiteboard were highly offensive, racist and discriminatory. Accordingly, the contest in this matter revolves around whether on the balance of probabilities, the misconduct occurred and whether the applicant was afforded procedural fairness.
[108] Mr Fleming distinguished Brinks from this matter where there is unchallenged evidence from a highly experienced forensic handwriting expert that it was highly probable the applicant wrote the graffiti.
[109] Having considered Dr Strach’s report, the respondent contends it is highly probable the applicant wrote the graffiti and highly unlikely that another person was responsible. Accordingly, the respondent had sufficient evidence to conclude the applicant had, on the balance of probabilities, engaged in the conduct alleged.
[110] The respondent’s case is not that the applicant and the longwall day shift crew were the only persons who had access to the crib room. The number of personnel underground on day shift other then the longwall crew was approximately 14, of which 11 were assigned to the development crew. The evidence of Mr Wagstaffe was that the development crew travelled to their work area together in one vehicle. Accordingly, few persons other then the longwall crew would have accessed the crib room on 28 June 2009.
[111] No adverse inference can be drawn from the respondent’s failure to call Mr McKinlay. Mr McKinlay’s statement that the graffiti could not have been written by a member of his crew was acknowledged in the evidence of Mr Longmate. In that regard, Mr Linde’s evidence in cross examination was that Mr McKinlay could not have known the exact whereabouts of each member of his crew during shift. Moreover, the 28 June 2009 day shift was largely a non-production shift.
[112] Mr Fleming referred to the applicant’s statement where he deposed the following concerning the use of crib rooms during shift:
You would also go to the crib room at the conclusion of the shift. Usually you would have your breaks with one or other members of the crew but crew members, on any particular day, may have a break by themselves or could drop in at the crib room to get a part, to grab a sandwich, drink, transport or make a telephone call.
[113] Mr Fleming submitted there was no evidence from the applicant that he did not visit the crib room alone during day shift on 28 June 2009. Clearly, the applicant admits crew members are able to visit the crib room by themselves during shift. Accordingly, the Tribunal should draw an adverse inference on this point. Moreover, as the applicant and other members of the longwall crew had an opportunity to write on the whiteboards without being witnessed by others, there was no need for the respondent to ask the applicant and other crew members to account for the movements on shift.
[114] Mr Lang’s evidence was that given the locations of the whiteboards it was possible a crew member could have written the graffiti without other members witnessing the act.
[115] With regard to the investigation, Mr Fleming submitted the respondent had undertaken an appropriate investigation of the graffiti incident and was satisfied that the applicant was the offender. While other persons could access the longwall crib room, ordinarily only the weekend dayshift and nightshift crew access that particular crib room. Accordingly, it was a reasonable first step to ask whether a member of one of these two crews wrote the offending words.
[116] On 29 June 2009, the respondent interviewed all members of the 29 June 2009 nightshift crew as a group. Everyone denied the offence. On 3 July 2009, all members of the 28 June 2009 dayshift crew were interviewed as a group and denied the offence. On 24 July 2009, all members of the 28 June 2009 dayshift crew were interviewed individually. Everyone, including the applicant, denied being the offender.
[117] The respondent subsequently engaged Dr Strach, an expert handwriting and questioned document examiner with extensive experience in forensic document examination to ascertain who the offender was. Dr Strach was provided with a photograph of the writing on the crib room whiteboard and several handwriting samples, including the applicant’s handwriting contained in training assessment records held by the respondent. Dr Strach concluded that it was “highly probable” the applicant was the offender.
[118] Accordingly, the respondent was satisfied from its investigation and Dr Strach’s report that the applicant had written the offending words on the whiteboard.
[119] The applicant was present on 3 July 2009 when members of the dayshift crew were asked if they were involved. The applicant was also interviewed as an individual on 24 July 2009. He was questioned and denied involvement in the incident.
[120] Following the respondent’s investigation, the applicant was notified that management sought a meeting to further discuss the matter and a potential outcome was dismissal. He was given the opportunity to have a support person with him.
[121] The applicant attended the meeting with the respondent’s management on 13 November 2009. Mr Todd Hardy, Lodge President, supported the applicant at the meeting. The allegation that he was the offender was put to him and he was shown Dr Strach’s report.
[122] The applicant was subsequently asked to show cause why the respondent should not terminate his employment. The meeting adjourned to allow the applicant and Mr Hardy to consider the matter.
[123] The meeting resumed and the applicant further denied that he was the offender. He provided no further response why his employment should not be terminated. Following a further adjournment Mr Nash and Mr Linde decided that the applicant’s employment should be dismissed summarily on the grounds he was found to have harassed and discriminated against another employee. The decision to terminate the applicant’s employment and the reasons for the dismissal were subsequently communicated to the applicant by Mr Linde and confirmed in writing.
[124] There was no reason to suspect the applicant would change his entrenched position of denial if he had been allowed additional time to consider his position.
[125] Mr Fleming submitted there was a valid reason for the applicant’s dismissal, being the writing of highly offensive, discriminatory and pointed comments about another employee. The applicant was given an opportunity to respond to both the reason for his dismissal and the conclusion reached by Dr Strach in his report. However, he continued to deny the allegation.
Consideration and Finding
The statutory requirements
[126] Section 385 of the FW Act relevantly provides that a person has been unfairly dismissed if the Tribunal is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.
[127] Section 387 sets out the criteria to be considered by the Tribunal in determining whether a particular dismissal is harsh unjust or unreasonable and provides the following criteria must be taken into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
(a) Valid reason
[128] The Applicant’s employment was terminated for serious misconduct, that conduct being breach of an established workplace discrimination and equal opportunity policy. The applicant acknowledged he had received training with respect to the policy. In such circumstances, it is open to an employer following an investigation into the allegation(s) of serious misconduct made against an employee to accept, on the balance of probabilities that the allegations are substantiated. The outcome for the employee in such circumstances is usually dismissal.
[129] Where dismissal follows an allegation of misconduct the Tribunal must determine whether the alleged misconduct occurred.
[130] In this matter, Dr Strach concluded it was highly probable that the applicant wrote the graffiti. That conclusion satisfies the civil standard of proof. I am satisfied on the materials before the Tribunal that Dr Strach has the specialised knowledge of an “expert” in relation to the forensic examination of handwriting and in that regard, I am also satisfied he has undertaken the necessary training, study and work experience upon which that specialised knowledge is based. Dr Strach was able to state explicitly the assumptions as to fact on which his various opinions were based.
[131] I consider Dr Strach to be a cautious and careful expert witness. Certainly, there was no evidence put in proceedings to the contrary. On the evidence in these proceedings, Dr Strach has a depth of experience in examining handwriting and was able to impart his specialist knowledge in the course of his evidence. In my view, Dr Strach was able to justify his conclusions and he made appropriate concessions during the course of the Union’s careful and thorough cross-examination.
[132] The letter of termination handed to the applicant on 13 November 2009 following a “show cause” meeting with management set out the reason for the applicant’s dismissal. The respondent’s decision was taken in response to an expert handwriting expert’s report that concluded in part that it was highly probable that the applicant was the author of the offending graffiti found on a crib room white board on the day following the 28 June 2009 day shift. The letter of termination further stated:
You have failed to satisfactorily demonstrate why we should not terminate your employment. Therefore, please be advised that your employment has been terminated effective immediately.
[133] The applicant alleged the letter of termination was prepared prior to the meeting on 13 November 2009. The respondent denied the allegation. I have formed the view that there is insufficient evidence to substantiate the probability of that occurrence.
[134] The civil standard of proof applies in unfair dismissal proceedings and the Tribunal must determine whether on the balance of probabilities, the conduct as alleged occurred, having regard to the evidence. Shortly stated, this means that upon consideration of the evidence admitted by the contesting parties, the account that is more probable than not is to be accepted. The inherent probability of the allegation is considered in that process.
[135] In the course of its decision in Brinks, the Full Bench affirmed the standard of proof to be applied remains proof on the balance of probabilities:
[7] It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes.
[136] In Lawrence v Catholic Education Office, Sydney 10, Schmidt J made the following observation concerning employee protestations of innocence in relation to allegations of misconduct:
Employers who have to determine whether or not misconduct has occurred, usually must do so without the assistance provided by access to evidence and cross examination about the events in question, given in a court in which the criminality of such conduct has been determined against the employee by a jury. In circumstances where allegations of misconduct arise, it is commonplace for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that misconduct has not occurred.
[137] Having carefully considered all the evidence against the applicant in this matter, I do not believe the respondent’s decision to dismiss was a disproportionate response taking into account his service and work history. The applicant’s consistent denial concerning the allegation did not provide the respondent with any grounds to mitigate the penalty of dismissal.
(b) Notification
[138] It is clear on the evidence the applicant was informed of the reason for his termination on 13 November 2009. Moreover, it is also clear the applicant was informed of the reasons for dismissal prior to the respondent’s decision to terminate his employment was made.
[139] What he did not know prior to 13 November 2009 was that specimens of his handwriting had been earlier identified by Dr Strach for further examination. I find that the applicant was notified of the reasons for his dismissal.
(c) Opportunity to respond
[140] The applicant was afforded an opportunity to respond, (albeit at short notice) to the allegations concerning his conduct. A meeting was arranged on 13 November and the applicant was afforded an opportunity to have a support person present. The applicant was given a period of time to consider the report and “show cause” why he should not be dismissed. The Union has alleged the applicant was given insufficient time to consider Dr Strach’s report and finding.
[141] For its part, the respondent maintains the crux of the report was relatively short being a six or seven page document. Notwithstanding Dr Strach’s finding, the applicant continued to deny the allegation and there no indication within the evidence that any extension of time to further consider the report would have influenced his plea of innocence.
[142] The applicant’s conduct supports a conclusion that his response to Dr Strach’s report and finding was given full consideration within the given time frame. I find that the applicant was given an opportunity to respond to the allegations and the requirements of the sub section have been met.
(d) Unreasonable refusal to allow a support person
[143] I am satisfied the applicant was afforded an opportunity to havea support person present and the requirements of the sub section were met.
(e) Unsatisfactory performance
[144] There was no evidence that unsatisfactory performance was related to the applicant’s dismissal.
(f) Size of employer and impact of human resources expertise
[145] I do not consider the size of the respondent is relevant to this case.
(g) Other matters
[146] I do not consider this sub section has any relevance to this matter.
Finding
[147] In finding the respondent had a valid reason for dismissing the applicant, and following consideration of the other relevant factors set out in s.387, I have also considered whether on a global basis, the termination of the applicant’s employment constitutes “a fair go all round”. The respondent is entitled to expect compliance with its express workplace policies and procedures. It also follows that not all breaches of such policies will result in dismissal. However, in the circumstances of this case, I am unable to be satisfied that the termination of the applicant’s employment was harsh, unjust or unreasonable
[148] The application is therefore dismissed.
COMMISSIONER
Appearances:
For the applicant, Mr K Endacott, Construction, Forestry, Mining and Energy Union (Mining and Energy Division) Northern District Branch
For the respondent, Mr R Fleming, Corporate Lawyer, Vale Australia
Hearing details:
2010
NEWCASTLE
13 & 14 ARPIL
1 Brinks v Transport Workers’ Union of Australia PR922612, 18 September 2002
2 (1992) 110 ALR 449 at 449-450
3 See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521
4 Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362; Helton v. Allen (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539
5 Rejfek v. McElroy (1965) 112 CLR, at p 521
6 Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538
7 Rejfek v. McElroy (1965) 112 CLR, at p 521
8 See, e.g., Motchall v. Massoud (1926) VLR 273, at p 276
9 (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711
10 [2002] NSWIRComm 115 at 77
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