[2020] FWC 1080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kevin Boyle
v
BHP Coal Pty Ltd
(U2019/2902)

COMMISSIONER HUNT

BRISBANE, 4 MARCH 2020

Application for an unfair dismissal remedy – Applicant made comment of vulgar and graphic nature while on mine site that may offend others – improved culture in modern workplaces towards offensive conduct of sexual nature – workplace humour – two reasons provided by Respondent as reasons for dismissal not valid reasons - procedural flaws and prejudicial application of Respondent’s investigation procedure into misconduct – alternative procedures available to Respondent for Applicant’s misconduct - Applicant made improper accusations against women in the workplace while downplaying conduct – Applicant’s dismissal not unfair in all the circumstances – application dismissed

[1] Mr Kevin Boyle has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with BHP Coal Pty Ltd (BHP or the Respondent) on or about 5 March 2019 and that his dismissal was unfair as it was harsh, unjust and unreasonable.

[2] No jurisdictional objections were made to Mr Boyle’s application. I note that while Mr Boyle’s annual earnings in his employment with BHP exceeded the high income threshold applicable at the date of his dismissal, he was employed pursuant to the BMA Enterprise Agreement 2018 (the Agreement) and was therefore an agreement-covered employee.

[3] I am satisfied that Mr Boyle is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Boyle’s application was made within the 21-day statutory time limit. The only matter that I must determine is whether Mr Boyle’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Background

[4] Whilst travelling in a vehicle with three other people on 2 November 2018, Mr Boyle said words to the effect, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally.”

[5] During a meeting on 30 November 2018 to discuss allegations as to what was said by Mr Boyle on 2 November 2018, Mr Boyle repeated the above statement. According to witness evidence of the Respondent, Mr Boyle made this statement more than once during the meeting. Further, the Respondent found that Mr Boyle reminded his employer that he works on a mine site in an apparent effort to explain the appropriateness of his conduct. Mr Boyle denied stating that he worked on a mine site.

[6] Mr Boyle was asked to show cause as to why his employment should not be terminated on account of breaching the BHP Code of Business Conduct and the BHP Charter Values, specifically “Respect” and “Integrity”.

[7] Following receipt of Mr Boyle’s show cause response letter, his employment was terminated by the giving of five weeks’ payment in lieu of notice.

Hearing

[8] This matter was heard before me in Mackay, QLD on 27 and 28 August 2019, and in Brisbane on 16 October 2019. Mr Rowan Anderson, Senior Legal Officer of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) appeared for Mr Boyle. Mr James McLean, Legal Counsel of Employee Relations, BHP Legal and Ms Jodie Dubois, Principal of Employee Relations, BHP appeared for BHP.

[9] Mr Boyle appeared at the hearing and gave evidence in support of his application.

[10] The following persons appeared at the hearing and gave evidence for BHP:

• Ms Janet Barden, Coal Mining Supervisor, Workpac;

• Ms Emma Ramirez, Operator, Workpac;

• Mr Brad Prytherch, Manager Production Coal;

• Mr Charlie Craig, Superintendent Production Coal;

• Mr Kyle Harper, Mining Supervisor;

• Mr Douglas Field-Akred, Specialist Improvement, Production Coal A & I.

[11] Prior to the hearing I ordered Mr Daryl Morris, an employee of BHP to appear and give evidence at the hearing of this matter. Mr Morris appeared and gave evidence at the hearing of this matter as a witness of the Commission.

[12] I note that throughout each party’s written material and during the hearing various persons were referred to by alternate names or nicknames, as follows:

• Mr Boyle also goes by ‘Yappy’;

• Mr Morris also goes by ‘Chef’;

• Mr Harper also goes by ‘Bear’.

BHP’s Policies and Procedures

Charter Values

[13] BHP has at its workplaces, a set of Charter Values which it says are to be applied. It is relevant to set out the BHP Charter Values, which are as follows:

“Sustainability

Putting health and safety first, being environmentally responsible and supporting our communities

Integrity

Doing what is right and doing what we say we will do.

Respect

Embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial.

Performance

Achieving superior business results by stretching our capabilities.

Simplicity

Focusing our efforts on the things that matter most.

Accountability

Defining and accepting responsibility and delivering on our commitments.”

Code of Conduct

[14] BHP has at its workplace a Code of Conduct which it says is to be complied with. It is said that the Code of Conduct describes how BHP put the values described in the Charter Values into practice, along with providing clear expectations of how employees will conduct themselves in their work.

[15] Relevant to this matter is the chapter of the Code of Conduct titled “Workplace Equality and Inclusion”. This chapter, among other things, provides:

“Always

- Demonstrate fairness, trust and respect in all your working relationships.

…

Never

- Behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others.

…

- Engage in physically or socially intimidating behaviours.

… ”

BMA Guideline to Fair Play Disciplinary Procedure

[16] It is helpful to set out BHP’s procedures for handling allegations of misconduct and disciplinary action, which are relevant in this matter. Those procedures are set out in the ‘BMA Guideline to Fair Play Policy’ (the Fair Play Guide).

[17] During the proceedings there was conjecture as to whether the Fair Play Guide applied to Mr Boyle’s employment. Mr Craig’s evidence is that he is aware of the Fair Play Guide, but at the time of the hearing it had been one or two years since he had read it. 1 Mr Craig considered that there was an obligation to apply it and to complete a Just Culture Decision Tree.

[18] In examination-in-chief, Mr Prytherch stated that he did not consider that the Fair Play Guide had any application at the Peak Downs mine site, and that it was simply best practice and good practice to apply the Fair Play Guide. 2 In evidence-in-chief, Mr McLean did not suggest to him that his evidence was incorrect on this issue.

[19] Mr Prytherch gave evidence in cross-examination that following the dismissal, and in preparation for the hearing, he spoke with human resource professionals within BHP. During those discussions he came to the conclusion that the relevant enterprise agreement at the Peak Downs site did not require application of the Fair Play Guide. Accordingly, he had come to the view that it was not mandatory to apply it. 3

[20] Mr Prytherch spoke with HR prior to the dismissal to ensure that he could make additional comments to the Just Culture Decision Tree completed by Mr Craig. 4

[21] Following the evidentiary case, and prior to hearing closing oral submissions, on 2 September 2019, BHP provided to the Commission a copy of the Fair Play Guide. The latest version is version number 1.2, updated on 15 June 2018. The scope of the Fair Play Guide states:

“This Policy applies to all Employees covered by the following industrial instruments as replaced from time to time:

• BMA Enterprise Agreement 2018;

• BMA Caval Ridge Mine Enterprise Agreement 2015;

• BMA Daunia Mine Enterprise Agreement 2014

• Broadmeadow Mine Workplace Agreement 2016; and

• Hay Point Services Pty Ltd Enterprise Agreement 2017.”

[22] The Fair Play Guide sets out a four-step disciplinary process to be applied where an employee is found to have engaged in misconduct (apart from serious misconduct):

“The application of the Just Culture Decision Tree together with the particular circumstances and severity of each case will determine the appropriate disciplinary action Step to be taken with respect of an Employee. The relevant Steps are as follows:

Step 1 An Employee will be verbally counselled by their Supervisor. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative. Written notice of the verbal counselling will be provided to the Employee and a copy placed on the Employee’s file; or

Step 2 An Employee will be counselled by the Supervisor in the form of a formal warning. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative and have the warning confirmed in writing. A copy of the formal warning will be provided to the Employee and also placed on the Employee’s file; or

Step 3 An Employee will be issued a final warning by their Supervisor or Department Manager or Superintendent. Where requested by the Employee, the Company representatives will conduct the counselling in the presence of an Employee Representative, and have the final warning confirmed in writing and the Employee will be advised that dismissal may result from any further act or misconduct. In addition, the Company can stand down the Employee without pay for up to 21 calendar days. A copy of the formal warning will be provided to the Employee and placed on the Employee’s file; or

Step 4 Disciplinary action, which is commensurate with the severity and/or frequency of the act(s) of misconduct, will be taken.

As a general guide the disciplinary procedure will work on a sequential basis e.g. first breach results in Step 1, an additional breach within a 12 month period results in Step 2, etc. However, where a Supervisor and Department Manager/Superintendent deem that the circumstances warrant the action, an Employee may be placed on a Step that is not sequential.

Where an Employee, who is in receipt of a warning under Steps 1, 2 or 3 above, receives no further warnings under Steps 1, 2 or 3 in the proceeding 12 month period, the current warning will revert to the previous Step (if any) e.g. Step 3 reverts to Step 2, Step 2 reverts to Step 1, etc.”

[23] The Fair Play Guide provides that following an investigation into an allegation of misconduct and the issuing of a ‘Stepped’ warning, the relevant decision-maker must complete a ‘Just Culture Process’ to determine whether an event of misconduct was ‘intentional’ or ‘unintentional’, and the decision-maker may use that finding when considering whether any disciplinary action is to be taken against the employee and the severity of that disciplinary action.

[24] The Just Culture Process is completed using the ‘Just Culture Decision Tree’, which appears as an appendix to the Guide. ‘Unintentional’ errors are categorised as ‘slips’, ‘lapses’ or ‘mistakes’. ‘Intentional’ errors are described as either:

• Cultural violations; ‘An intentional error by a person because it is perceived by that person that it is the expected action in their work group’; or

• Deviant violations; ‘An intentional error by a person even though they know it is not the approved/tolerated action’.

Evidence of Mr Kevin Boyle

[25] Mr Kevin Boyle made two witness statements regarding this matter and appeared and gave evidence at the hearing of this matter. 5

Employment history

[26] Mr Boyle commenced employment with BHP at BHP’s Peak Downs Mine (the Mine) on or about 27 November 2011. He had previously worked at BHP’s Norwich Park Mine for approximately three years, although he had been employed by a different entity and contracted to work with BHP during that period. Mr Boyle was aged 56 years at the time of the hearing.

[27] Mr Boyle stated that he was trained to operate a wide range of mining equipment including haul trucks, dozers, wheel dozers, graders, belly dumpers and water carts. He took several extended periods of leave due to illness during his employment with BHP. Mr Boyle was on extended unpaid sick leave throughout the following periods, being nearly four years in total:

• From December 2014 to February 2017; and

• From March 2017 to September 2018.

[28] After returning to work in September 2018, Mr Boyle worked as part of the ‘D Crew’ in BHP’s Coal Mining Department. Upon returning to work in September 2018, he completed refresher training which included reviewing BHP’s standard operating procedures, safety and competency requirements and BHP’s Code of Conduct (the Code). Mr Boyle stated that the refresher training was completed on a computer and did not include any in-person training or a review of all of BHP’s policies. He stated that after completing the refresher training he was not aware of any significant changes to how on-site conduct was approached at the Mine. During cross-examination, Mr Boyle conceded that although he read an excerpt of the Code during his training, he had not taken it upon himself to read the Code in full. 6

2 November 2018 and stand down from employment

[29] On 2 November 2018, Mr Boyle attended the Mine at approximately 6:00am to commence his day shift. He attended a union meeting that morning which lasted approximately two hours, which meant that he started his shift later than usual.

[30] At about 9:30am he was travelling in a light vehicle with three other people; Ms Emma Ramirez, Ms Janet Barden and Mr Daryl Morris. Mr Boyle stated that all of those persons were travelling to the ‘4 North ROM’ area within the Mine. Mr Boyle’s first recollection is that Ms Barden was driving the vehicle, Mr Morris was seated in the front passenger seat, and he and Ms Ramirez were seated on the back-passenger seats. He later stated that it was possible that Mr Morris had been driving the vehicle.

[31] All of the vehicle’s occupants were engaged in conversation, but Ms Barden and Ms Ramirez were doing most of the talking. Mr Boyle’s evidence relevant to what was said between the car’s occupants has varied at times and is produced below:

(a) Interview of 30 November 2018: [Respondent notes]

“Mr Craig: Can you tell me why you made this comment?

Kevin claims the people in the car were talking about rooting and how the girls get out of having sex with their partners whilst driving in the car.

Kevin said that the girls tell their husbands they have a headache so they don’t have to have sex.

Mr Craig: Do you believe that you have acted in accordance with the expectations outlined in this training? Why / why not?

Said no but they were talking about rooting and I did not say cock.

Mr Craig: Do you believe you have conducted yourself in accordance with our Code of Business Conduct and Charter Values? Why/why not?

Kevin said no and that he thought he knew them well enough to say the joke and cause they were talking about sex it was ok

In hindsight, what have you learned and what would you do differently next time?

Keven said Charlie they were talking about “rooting rooting”

In relation to this investigation, is there anything else that you believe is relevant, or that you would like us to take into consideration?

Again Kevin said that they were talking about sex and that they should [have] come to him.”

(b) Letter to Mr Craig dated 4 December 2018:

“….I have reflected on the situation further since our meeting and I now appreciate that I should have not made the comment and I apologise. I appreciate in hindsight that the comment was not appropriate for the workplace. The comment was not intended to offend.

Whilst I accept that my statement was not appropriate, I note that it was made in the context of a conversation that was occurring. I often have conversations in the nature of banter that go back and forth. At the time, I considered this to be one of those occasions and that no one would be offended. The conversation that preceded my comment, which was engaged in by others (woman sitting in the back of he car) rather than myself, related to “men’s and woman’s martial obligations” and “rooting”, and, to the best of my recollection, included comments such as the following:

“When my husband wants sex and I don’t, I use the old headache excuse and it works for me.”

The above indicates that there was some context to the conversation and that the others present were involved in a conversation involving sex. I feel that I have been singled out and that given my conduct is being investigated, it is fair that the full context is known….”

(c) Letter to Mr Prytherch dated 6 February 2019:

“…I have reflected on the situation and appreciate I should not have made the comment. I have apologised. The comment was not intended in any way to be offensive. The comment was made in the context of the conversation that was occurring. Other comments of an analogous nature had been made by the others present at the time……”

(d) Show cause response dated 27 February 2019:

“…My comment was not in response to Ms Barden saying she had a headache. Instead, the joke was said following on from a conversation whereby Ms Barden and Ms Ramirez. They were having a discussion which effectively included a statement “When my husband wants sex and I don’t, I use the old headache excuse and it works for me”. I have explained this matter previously in detail…..”

(e) First witness statement:

“To the best of my recollection the conversation then proceeded as follows:

Ms Barden: When my husband wants sex [or a root] and I don’t, I use the old headache excuse and it works for me.

Me: If my old girl has a headache, I crush up a Panadol and rub it on my old fella and tell her she can have it orally or anally.

Everyone: Laughter.”

(f) Reply witness statement

“…I recall there was discussion, involving Ms Barden, to the effect that she had had her husband or partner “wrapped around her finger”. The conversation was light hearted and included a suggestion that sex or sexual favours could be withheld using a headache as an excuse. The conversation was to the effect that she was in charge of her household. Whilst the word “sex” or “root” might not actually have been used there was a discussion to that effect.”

(g) Evidence during the hearing:

Mr McLean:		“No one had been talking about rooting, had they, Mr Boyle?
Mr Boyle:		Yes, they - look, I'm not going to go there with you, mate. I can't remember the exact words they used, but it was more along the lines of - when you're joking, in a joking manner, and the girls saying they wear the pants in their house and this is how they get their way, they say they've got a headache. It was - that was the context of the conversation. I know it was wrong, what I said, after I (indistinct) and I've offered to apologise on several occasions, but never had the opportunity.
Mr McLean:		Mr Boyle, I put it to you that you fabricated that version of events?
Mr Boyle:		I don't like being called a liar, Mr McLean, is it?
Mr McLean:		I appreciate that, Mr Boyle?
Mr Boyle:		Thank you.
Mr McLean:	And no one had actually been talking about having sex with their partners, had they, Mr Boyle?
Mr Boyle:	In my memories they did. They weren't talking about actual - doing the - I don't know, they were just - it was more along the lines of a male chauvinist - female chauvinist pig-type conversation going on in the car at the time and the girls mentioned having headaches. I can't remember the exact words, but it was in that context.
Mr McLean:	Are you believing the version of events that you now want to believe, Mr Boyle?
Mr Boyle:	Of course I am, because I - they are the ones I remember. How I remember them.
Mr McLean:	You are advancing a version of events which in your view makes your comment less inappropriate, aren't you?
Mr Boyle:	No. I've said this since November last year when we had that meeting and I have not changed anything at all. This is how I remembered it at the time, a month later, two months later, six months later and now getting on 10 months later. This is how I remember it.
Mr McLean:	Mr Boyle, a conversation about having sex with your partners is not a conversation you'd have with someone who you'd just met, is it?
Mr Boyle:	I do not believe they were having a conversation about having sex with their partners. I believe it was more along the line of, 'I wear the pants in my house and when my old man disagrees with me, I just tell him when he wants it, I've got a headache.' Basically, that's how it went. I don't know the exact words. I cannot remember the exact words.
Mr McLean:	I'm sorry - just - ?
Mr Boyle:	I just know no one said they had a headache, because if they did, I would have just given them a Panadol.
Commissioner:	Sorry, Mr McLean
Commissioner:	Mr Boyle, you say Janet said that?
Mr Boyle:	No. The girls and us were just in the car joking and going out to do a job.
Commissioner:	In the material, you reference Janet saying these things, but you never say that Emma contributed to the conversation?
Mr Boyle:	Emma was just in the car talking. Emma is very quiet, but she was laughing and talking with the rest of us.
Commissioner:	But your material is in the plural, that 'they say' when they don't want to have sex with their husbands?
Mr Boyle:	Sorry. I'm – yes.
Commissioner:	So what was Emma's involvement in - - -?
Mr Boyle:	I meant everyone in the car was sort of contributing, myself included, to the conversation.
Commissioner:	Well, to date, I've only seen evidence that Janet was speaking. That's your version?
Mr Boyle:	Well, I'm sorry - yes. I'm still at a loss here, like understanding - like you say, I'm - there was four people in the car and we were all sort of talking. Like, it was just like a general conversation we were having.
Commissioner:	Well, who was having it? Your evidence is that Janet was saying these things?
Mr Boyle:	Well, Janet is the one that made the complaint, so I suppose when my memory comes back, it's more on her than anyone else, I suppose. No, I'm pretty sure we were all talking, ma'am.
Commissioner:	Well, what did Emma say?
Mr Boyle:	Like I say, I honestly can't remember who made the comment, but that was the conversation that was going on in the car at the time.
Commissioner:	In your first statement, I understand it to mean that you said at paragraph 20 that Janet said, 'When my husband wants sex or a root and I don't, I use the old headache excuse and it works for me.' But I don't understand where you say that there is this conversation between the two women in the car, Janet and Emma?
Mr Boyle:	And there was also myself and Chef in the car. We were all just talking and joking.
Commissioner:	But you still can't tell me what Emma said?
Mr Boyle:	Well, honestly, ma'am, I can't remember. I can't even remember what Chef said. I just remember that at the conclusion of it, everyone laughed and we went to work. I didn't - I know now that what I said was wrong and I've apologised several times, but at the time I had no idea that I'd actually done anything wrong.
Mr McLean:	Mr Boyle, just before the Commissioner asked you a few questions, I asked you whether you were talking about having sex with your partners, and I understood the answer you gave me to be no?
Mr Boyle:	Yes.
Mr McLean:	So you weren't talking about having sex with your - - -?
Mr Boyle:	I don't believe we were. No.
Mr McLean:	And you said there was a comment about when someone gets fed up with their partner, they say they've got a headache?
Mr Boyle:	No. I don't believe I said it in those words at all.
Mr McLean:	If you didn't then perhaps you can tell me again in context?
Mr Boyle:	It was like I said before, it was more of a male chauvinist, female chauvinist - the way blokes and women joke on the work site, when they're saying - it's like the Kiwis and Aussies talking about football. Just a bit of banter in the car. That's at that time.
Mr McLean:	Banter about having sex with your partners?
Mr Boyle:	No one was having banter about having sex with their partners.
Mr McLean:	So was anyone talking about having sex with their partners?
Mr Boyle:	I doubt it very much.
Mr McLean:	Because - - -?
Mr Boyle:	I doubt - I do believe they might have been joking about how they wear the pants in the house.
Mr McLean:	Wear the pants in the house?
Mr Boyle:	Yes.
Mr McLean:	And then someone said when they get fed up with their partner - - - ?
Mr Boyle:	No. No one said they were fed up with their partner. When - it was - look, I can't remember the actual conversation.
Mr McLean:	I apologise if I am misquoting you, Mr Boyle, but that was my understanding of what you said. But perhaps you can tell me what was the conversation before you made your comment?
Mr Boyle:	We were all just joking and carrying on in the car and one of the girls came up with, 'When he upsets me, I just tell him I've got a headache. I always get my way,' or something along those lines.
Mr McLean:	When he upsets - - -?
Mr Boyle:	In that context.
Mr McLean:	Right. Because, Mr Boyle - - -?
Mr Boyle:	No. :'When we argue', it could have been, 'When we argue or we disagree.'
Mr McLean:	So 'When we disagree or when we argue, or when he upsets me, I say I have a headache.' Mr Boyle, that's a very different proposition to what you've put - - -?
Mr Boyle:	Yes. I'm really confused with the way you're turning everything I say or what I'm trying to say - - -
Mr McLean:	Perhaps we will do it this way, Mr Boyle. Perhaps I will take you to CC8, which is your first written response to the company on 4 December. Mr Boyle, around about two-thirds of the way down that page - - -?
Mr Boyle:	I can see where it says it.
Mr McLean:	You say, 'Included comments such as the following, 'When my husband wants sex and I don't, I use the old headache excuse and it works for me'?
Mr Boyle:	It was similar to that.
Mr McLean:	Well, that's a very different comment, Mr Boyle?
Mr Boyle:	Yes, but it was similar to that, right? That's what I'm saying. It was sort of like more the male chauvinist pig, female chauvinist thing going on.
Mr McLean:	Mr Boyle, you've just told us that you made your comment in response to someone saying when their husband annoys them or when they're upset with their husband or when they are fed up with their husband or something to that effect. That's different to what you've included in your response on 4 December, isn't it?
Mr Boyle:	Yes.
Mr McLean:	So which is true, Mr Boyle?
Mr Boyle:	They're both true. Basically, I can't remember the exact words. It's - we're having a conversation in the car and the girls are joking along and it's suddenly got on the subject of who runs or wears the pants in their relationship or - like a - - -
Mr McLean:	So Mr Boyle - - -?
Mr Boyle:	No one sat in that car and sat there and spoke for two hours like we are doing right now and slowly got on to saying this. It was just the comments were made and they came out. I know what I said was pretty rude and disgusting, but I can't remember the exact words those girls used.
Mr McLean:	Well, Mr Boyle, I will take you to CC5. Charlie Craig's notes of his meeting with you on or around 30 November - it says '30 December', but I understand that's 30 November. Bottom of the second page, Mr Boyle, where Mr Craig asked you why you made that comment you again say, 'People in the car were talking about rooting and how the girls get out of having sex with their partners.' Again, that's inconsistent with the version you've just provided this Commission, isn't it?
Mr Boyle:	Yes, I know. 'Kevin claims that the people in the car were talking about rooting and how the girls get out of having sex with their partners' while driving the car.' Now, I didn't write this. 'Kevin said that if the girls told their husband they have a headache so they don't' - that's not what I meant when I spoke to Charlie. Look, honestly, when we were talking in the car, and I'm trying - I'm getting a bit flustered here, I'm not used to this. Like I said, it was light-hearted banter. There was no more than that around the car. No one was basically going in there and telling all their little secrets and hanging out their dirty underwear in public. We were just having a joke. And I answered it with what I thought was something that was in the same context as that. Now, later in hindsight, I know that I was wrong.
Mr McLean:	But Mr Boyle, what you are doing in this Commission is giving a version of events that is inconsistent with what you previously told the company?
Mr Boyle:	I don't know. It's pretty close to what I can remember. And I told the same thing - - -
Mr McLean:	I put to you it's a different version, Mr Boyle?
Mr Boyle:	Well, I put to you it's how I remember it.
Mr McLean:	And I put to you it's a different version because you are making it up as you go?
Mr Boyle:	No. I believe that you are just changing my words, because you're really good. I don't know, I'm not educated like you.
Commissioner:	So you understand, Mr Boyle, that when you told the company that's what was discussed in the car, that the people who were interviewed and asked whether there was discussion about sex or rooting and they all denied it?
Mr Boyle:	Yes, ma'am. But it's how I - and it wasn't like about rooting in general, your Honour - sorry, ma'am. It's more - it was more along - like I said, it was just like who wears the pants in the house. It had - it was just how I worded things in those different - at those different times. They may have come out that way, because that's - and I just said those - you know, just said it that way and put those words in there.
Commissioner:	But the issue you've been taken to is that you are telling the company that - - -?
Mr Boyle:	The girls were talking about - like, if they disagreed with their husband and then later on down the track they just say they got a headache, so he just comes to the party and says, 'Yes, okay. You win.' Like, I don't know, it doesn't - that's how I remember it. It was just like a male chauvinist, female chauvinist conversation. I just didn't want go and sit here and - because I can't remember word for word what was said.
Commissioner:	But you're telling the company in the investigation that the women said to the effect that, 'If my husband asks me for sex and I don't feel like it, I use the headache excuse'?
Mr Boyle:	They might have written it down that way, but it was only - the headache excuse isn't - - -
Commissioner:	That's what you've told the company?
Mr Boyle:	Yes, ma'am. But the headache excuse was used to - when they said it, that was more along the lines saying, 'I let me old man know I'm the boss.'
Commissioner:	Well, do you think it involved - - -?
Mr Boyle:	Yes, I do.
Commissioner:	- - - an excuse for sex?
Mr Boyle:	Yes, I do. Yes. An excuse to get out of it, so that the hubby is going to come along and do whatever they say. That's what I've been trying to say the whole time.
Commissioner:	Well, the women, when they are interviewed again on 3 December say, 'No. We weren't talking about sex at all'?
Mr Boyle:	When were they interviewed?
Commissioner:	Janet is interviewed on 3 December over the phone. And Emma is interviewed on 11 December and they are saying, 'No. We weren't at any stage talking about sex or rooting'?
Mr Boyle:	Well, that's okay. As I remember it, they - that's how I remember the conversation, because those comments wouldn't have come out in any other circumstances.
Commissioner:	Carry on. Thanks.
Mr McLean:	Mr Boyle, you were saying that this is how the company's captured your response, but I want to take you to your statement at - I think you've got a copy there, your first statement. Paragraph 20 and we might be labouring this point, Mr Boyle, but I think it's important to get to the bottom of it. This is your signed statement?
Mr Boyle:	That's correct.
Mr McLean:	You've signed it down the bottom?
Mr Boyle:	Yes.
Mr McLean:	This is your account of what happened. Or at least, your account as at whatever date you prepared this statement?
Mr Boyle:	That is correct.
Mr McLean:	And there again, you say that Ms Barden said words to the effect of, 'When my husband wants sex or a root and I don't, I use the old headache excuse and it works for me'?
Mr Boyle:	That's what I wrote down and, yes, that's basically how I remember it, but it wasn't about them saying they were talking about rooting or bringing their husbands or having any sexual talk about their parents - like their home, family life. I'm trying to get across that they were just - the whole conversation was along the lines of that they're women and they've got power over us. You know what I mean? That's basically what I'm trying to get across here. Like, it might have come out like that. I can't remember the exact words. What I do know is it was a male chauvinist, female chauvinist thing going on in that car at the time.
Mr McLean:	Mr Boyle, if you can't remember the exact words, why did you put it in your statement?
Mr Boyle:	Because that's how I remembered it at the time.
Mr McLean:	So you do remember - you do remember Ms Barden - - -?
Mr Boyle:	When someone says that if they don't get their way, they just say they've got a headache, I naturally assume that's what they mean.
Mr McLean:	Well, that's a very different statement to what you've included in your written evidence?
Mr Boyle:	Well, that's what I mean.
Mr McLean:	So in your evidence, did Ms Barden or did she not say, 'When my husband wants sex or a root and I don't'?
Mr Boyle:	She wouldn't - no, well, I don't think she would have said 'root'.
Mr McLean:	Well, why did you put it in your statement?
Mr Boyle:	Now, in hindsight, but - in hindsight, I don't think she would have said 'root'. But we were talking about that and the male chauvinistic and the female chauvinistic side of things.
Mr McLean:	When you say that, Mr Boyle, were you talking - did Ms Barden say, 'When my husband wants sex'?
Mr Boyle:	Possibly.
Mr McLean:	Well, if you weren't sure, Mr Boyle, why did you put in your statement?
Mr Boyle:	To the best of my recollection, it was those - that was along those lines. Yes.
Mr McLean:	Did she say the word 'sex'?
Mr Boyle:	Possibly. Like, to the best of my recollection I could say yes a thousand times, mate, but right now we are talking 10 months later and I'm - - -
Mr McLean:	Well, when you prepared this statement, Mr Boyle - - -?
Mr Boyle:	Wish I had me diary.
Mr McLean:	On 14 June?
Mr Boyle:	Yes.
Mr McLean:	Did you have a recollection of Ms Barden saying the word 'sex'?
Mr Boyle:	No. No, I can still recollect her now, and the topic of the conversation, that's all I can recollect.
Mr McLean:	I am not asking for the topic of the conversation, I am asking what, in your view, Ms Barden said?
Mr Boyle:	Well, that's - in my view that's what Ms Barden said.
Mr McLean:	She said the word 'sex'?
Mr Boyle:	Basically. I think she may have.
Mr McLean:	Basically or did, Mr Boyle?
Mr Boyle:	Well, I think so. To my recollection, yes.
Mr McLean:	Your evidence is, to your recollection, Ms Boyle said the word 'sex'?
Mr Boyle:	Ms Barden, not Ms Boyle.
Mr McLean:	Ms Barden said the word 'sex'?
Mr Boyle:	To my recollection, yes. I'm going to go with it and say yes, because every time I say anything different, you're going to make me get all flustered again and - - -
Mr McLean:	Only because it's what you've included in your written evidence, Mr Boyle. So a while ago when I asked you were you talking about having sex with partners - - -?
Mr Boyle:	And I told you again no - - -
Mr McLean:	And you said no - --?
Mr Boyle:	We were talking about who's the boss, basically. It was - I can't even remember the word-for-word conversation. But no one mentioned doing anything dirty with their partners.
Mr McLean:	Paragraph 20, Mr Boyle. Is Ms Barden, on your version of events, talking about having sex with her husband?
Mr Boyle:	Basically, she's talking about 'This is how I get out of it with my husband.' Not having it.”

[32] Mr Boyle recalled that all of the vehicle’s occupants laughed at his joke and continued to converse after his joke. Mr Boyle stated that none of the occupants raised an objection to his joke at the time and he did not believe that any of the occupants considered his joke to be inappropriate. After he made his comment, he left the vehicle to go for a smoke. Ms Ramirez also went for a smoke and asked to borrow either his lighter or a cigarette from him.

[33] Mr Boyle arrived at the ‘4 North ROM’ area and went about his work as usual without any issue. He worked shifts on both 3 and 4 November 2018 without any issue being raised with him. Mr Boyle stated that he worked with Ms Barden at various times on 3 and 4 November 2018 and on one of those occasions Ms Barden ‘swapped out’ with another machine operator after they interacted. Mr Boyle did not recall that Ms Barden appeared uncomfortable in any way on either 3 or 4 November 2018.

[34] Mr Boyle next attended for work on his next swing on 14 November 2018. At about 9:30am he had a short conversation with Ms Ramirez, where she joked with Mr Boyle about him being on the ‘mummy crew’ on account of commencing work late after having been at a meeting. The ‘mummy crew’ is a light-hearted description of those workers who commence work later in the day.

[35] At approximately 10:30am while working, Mr Boyle was instructed through his two-way radio to attend the Mine’s site office, which he did.

[36] Mr Boyle attended the Mine’s site office and met with Mr Craig. Mr Matthew Rake, Supervisor Coal Mining and Ms Renae Berrigan, Supervisor attended the meeting as representatives of BHP. Ms Holly Lewiston of the CFMMEU’s Peak Downs Lodge attended the meeting as Mr Boyle’s support person. Mr Craig informed him that he was being stood down from his employment with pay while an investigation was conducted into his conduct on 2 November 2018.

[37] Mr Boyle stated that prior to 2 November 2018 he had never received any formal warnings regarding use of inappropriate language or conduct similar to the allegations against him arising from the events of 2 November 2018.

Meeting of 30 November 2018 and first response to allegation

[38] On 30 November 2018 Mr Boyle attended a meeting with Mr Craig regarding his conduct on 2 November 2018. Ms Lewiston again attended as Mr Boyle’s support person. Mr Kyle Harper also attended the meeting as BHP’s representative.

[39] During the meeting Mr Boyle was provided with a letter dated 29 November 2018 authored by Mr Craig, which stated in part:

“…

On 2 November 2018 at 10:30am you were travelling in a light vehicle to the 4 North Caval ROM Crib hut to hot seat trucks and loading units. In the vehicle your crew members present were Emma Ramirez, Janet Barden and Daryl Morris. It is alleged that when Janet mentioned that she had a headache you have made inappropriate comments.

As a result an investigation has commenced into your conduct following this incident.

Allegations

It is alleged that on 2 November 2018 your response to Janet Barden was to the effect of:

‘When my missus says she’s got a headache I crush Panadol and put it on the end of my cock and ask her whether she wants it orally or anally.’

You will be required to attend a meeting to respond to the allegations outlined in this letter at 12:00pm Monday 3 December 2018. You may provide any information that you think will assist me, or that you would like to have considered in response to the Allegations.

Investigation Process

It is important for you to know that at this stage, I have not made any findings about the Allegations. This is your opportunity to put forward your response, so that it can be fully considered before any decision is made.

I may also need to meet with you to discuss your response. You may bring a support person or Employee Representative to the response meeting and to any other meetings held as part of this investigation.

Direction not to attend work

In accordance with the stand aside letter issued to you on 14 November you are also directed not to attend work until further notice from the Company while we complete our investigation. You will continue to be pad during this time and must be available at the Company’s request. We currently have your contact detail on file as [phone number] (mobile).

Please let us know if this contact detail is incorrect.

Potential Breaches

You should be aware that, if substantiated, your conduct may be in breach of Company policies and procedures, including the following:

1. BHP Billiton Code of Business Conduct

2. BHP Charter Values, specifically Respect.

Kevin, the allegations are serious. If substantiated they may result in disciplinary action being taken against you (which could include a warning or termination of your employment).

Confidentiality

It is important that you keep in mind that the Allegations and the Investigation are confidential. You must not discuss this matter with any other person unless they are acting as your support person or Employee Representative. Everyone involved in this process, including your support person or Employee Representative, is also required to keep the matter confidential.

Employee Assistance Program (EAP)

Kevin, I understand that this may be a difficult time for you. I wish to again extend to you the offer of any assistance you may require regarding this matter and also remind you that the Company’s Employee Assistance Program (EAP) is available to you.

In the meantime, if you have any questions about the investigation process, please feel free to contact me on [phone number].

Yours sincerely

Charlie Craig

Superintendent Coal Mining

Peak Downs Mine”

[40] Mr Boyle recalled that during the meeting of 30 November 2018 Mr Craig read out to him the statement that he was alleged to have made on 2 November 2018, being “when my missus says she’s got a headache I crush Panadol and put it on the end of my cock and ask her whether she wants it orally or anally”. Mr Boyle recalled that he agreed he had made a statement to that effect as a joke, but insisted that he had used the words ‘old fella’ instead of ‘cock’.

[41] During cross-examination, Mr Boyle stated that during the meeting Mr Craig had asked him to repeat his comment of 2 November 2018, and he had repeated it. He denied that he had used a croaky voice when retelling the joke or described that the ending of the joke should be said ‘as a doctor says it’, contrary to the evidence of Mr Craig set out below at [142]-[144]. 7

[42] During the meeting of 30 November 2018, Mr Boyle stated that he explained to Mr Craig that on 2 November 2018 Ms Barden and Ms Ramirez had been talking about sex with their partners and using headaches as an excuse to avoid having sex with their partners, and his statement had been made in response to and as a continuation of that conversation. Mr Boyle recalled that he told Mr Craig all of the vehicle’s occupants had laughed at his statement. During the hearing, Mr McLean noted to Mr Boyle that Mr Craig’s notes of the meeting reflected that Mr Boyle had been adamant that the women in the vehicle on 2 November 2018 had used the words ‘root’ or ‘rooting’ prior to Mr Boyle’s comment, contrary to Mr Boyle’s evidence at the hearing that he could not recall those words being used. Mr Boyle denied that he had purposefully ‘stepped away’ from his original recollection that ‘rooting’ had been referred to, and stated during the hearing that he simply could no longer recall whether the word ‘rooting’ had been used due to the effluxion of time. 8

[43] Mr Boyle recalled that Mr Craig had asked him whether he had thought his statement was offensive and Mr Boyle had responded that he hadn’t thought so given the context of the preceding conversation. Mr Boyle recalled that he told Mr Craig his statement had not been directed at anyone and had only been meant as a joke. Mr Boyle recalled that he said to Mr Craig that if anyone of the vehicle’s occupants had been offended, then he would have thought they would approach him about it.

[44] Mr Boyle recalled that Mr Craig told him, “This time you have gone too far”. During the hearing, Mr Boyle emphatically denied that he put forward during the meeting of 30 November 2018 that he ‘worked on a mine site’ as an excuse for his comment of 2 November 2018, although he agreed that during that meeting he said words to the effect, “You see it [conduct similar to his comment of 2 November 2018] quite a bit out at the mine”. 9

[45] Mr Boyle stated that by the end of the meeting of 30 November 2018 he had reflected on the allegations against him and his actions on 2 November 2018 and had concluded that he had acted inappropriately. 10 In cross-examination the following exchange occurred:11

Mr McLean:	“I put it to you, Mr Boyle, that at no stage in that meeting of 30 November did you acknowledge wrongdoing on your part?
Mr Boyle:	Well, I don't know. I believe I did.
Mr McLean:	I put it to you, Mr Boyle, that you maintain throughout that meeting that your conduct was funny?
Mr Boyle:	No. I maintain - well, it might have come across that way, but in that meeting, mate, when I found out for sure what I'd done wrong, I actually felt bad.
Mr McLean:	But at the meeting on 30 November, you still believed you had done nothing wrong?
Mr Boyle:	No. That's not true. I knew what I'd done wrong and I felt bad about it. I still do.”

[46] On 4 December 2018, Mr Boyle emailed Mr Craig responding to the allegations against him. Mr Boyle’s letter stated in part:

“I refer to your letter of 29 November 2018 in relation to the above matter and the events of 2 November 2018. I provide a response below as to the allegations raised by you.

I accept that I made a comment on the day in question. The comment I made was in the nature of joke and was not intended to cause offence. I deny that the words I used are those contained in your letter. The words I used were as follows:

‘if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can either have it orally or anally’

I have reflected on the situation further since our meeting and I now appreciate that I should not have made the comment and I apologise. I appreciate in hindsight that the comment was not appropriate for the workplace. The comment was not intended to offend.

Whilst I accept that my statement was not appropriate, I note that it was made in the context of a conversation that was occurring. I often have conversations in the nature of banter that go back and forth. At the time, I considered this to be one of those occasions and that no one would be offended. The conversation that preceded my comment, which was engaged in by others (woman sitting in the back of the car) rather than myself, related to “men’s and woman’s marital obligations” and “rooting”, and, to the best of my recollection, included comments such as the following:

‘When my husband wants sex and I don’t, I use the old headache excuse and it works for me’

At the time, my comment did not appear to me to be out of the context of the conversation. I accept in hindsight that I should not have made the comment/joke. I did not perceive anyone to be offended by the comment at the time. Indeed, from my observation it appeared the others though it funny and the conversation carried on. My comment was not directed at any person in particular and I was not made aware of any objection or complaint at the time. However, again, I appreciate that I should not have made the comment.

If I inadvertently offended any member of my crew in the car at the time, I wholeheartedly apologise. I will ensure going forward that this type of thing will never happen again. I have not been subject to such allegations previously and would be content to revisit the code of conduct and do any further training that might be beneficial.

I am a consistent and all-round operator and have a very good work record. My record is absent of any warnings or steps in relation to misconduct and these allegations are out of character. I ask that you accept my apology and allow me to return to work as soon as possible to continue to be an integral part of my crew. I note I have been stood aside from my employment and, in the circumstances, I do not believe any serious disciplinary action would be warranted.

Yours sincerely

Kevin Boyle”

Further particularisation of allegations and second response

[47] On 30 January 2019 Mr Boyle received a text message from Mr Craig attempting to arrange a meeting on 5 February 2019. Mr Boyle contacted Mr Stephen Smyth, CFMMEU District President to see whether Mr Smyth could attend the meeting as Mr Boyle’s support person. No meeting was held on 5 February 2019.

[48] On 5 February 2019 he received a letter from Mr Prytherch regarding the allegations against him and which stated in part:

“On 30 November 2018, you met with Charlie Craig (Superintendent Coal Mining) and Kyle Harper (Supervisor Coal Mining). During this meeting you were provided with correspondence dated 29 November 2018, requesting your response to the allegations made against you. You then provided a written response on 4 December 2018.

I would like to provide you with a final opportunity to respond to the allegation and the witness statements.

Allegation

It is alleged that on 2 November 2018 when Janet Barden mentioned to you that she had a headache you said in response: “I once had a girlfriend who had a headache so he crushed up a heap of Panadol up and rubbed it all over his dick and said here bitch do you want it orally or anally”.

Witness statements

Witness statements have been collected as part of the investigation. The witnesses have reported you stated the following in response to Janet Barden’s comment relating to her headache:

Witness 1 alleges:

Kevin Boyle stated that he had a girlfriend once who had a headache so he crushed a heap of Panadol up and rubbed it all over his dick and said “here bitch do you want it orally or anally”.

Witness 2 alleges:

When one of the girls mentioned that they had a headache, Kevin then said “when my misses has a headache I put a Panadol on my cock and get her to suck it off”.

Witness 3 alleges:

Kevin known to us as Yappy; has comented something like “when his wife says to him she’s got a headache, he said, he’ll crushed a Panadol and he will put it on his personal (expletive) and say you either take it orally or anally”.

Investigation Process

At this stage I have not made any findings about the allegation. This is your opportunity to put forward your response to the allegation and witness information presented above.

Please provide your response to me by no later than 5pm 7/2/19 by email [email address]. If you do not respond by this time, I will have no alternative but to make a finding with relation to your alleged conduct based on the information presently available.

I may need to meet with you to discuss your response. You may bring a support person or Employee Representative to the response meeting and any other meetings held as part of this Investigation. You will continue to remain stood aside with pay while we complete this investigation.

Potential Breaches

I remind you that, if substantiated, your conduct may be in breach of Company policies and procedures, including the following:

BHP Code of Conduct

BHP Charter Values; specifically Integrity and Respect

Kevin, the allegations are serious. If substantiated, they may result in disciplinary action being taken against you up to and including the termination of your employment.

…[sic]”

[49] Mr Prytherch’s letter referred Mr Boyle to BHP’s Employee Assistance Program and instructed him to keep the investigation of the allegations against him confidential.

[50] On 6 February 2019 Mr Boyle emailed Mr Prytherch in response to the letter of 5 February 2019. Mr Boyle was unsure why the words attributed to him in the letter of 5 February 2019 were different than the words used in the 29 November 2018 letter, and he believed that the investigative process to-date had continued for a significant amount of time and had been unfair. Mr Boyle maintained that the words he used on 2 November 2018 were those described in his response of 4 December 2018, and he denied that he had said any of the variously phrased statements attributed to him in the 5 February 2019 letter.

[51] Particularly, Mr Boyle denied having used the words ‘here bitch’ at all, and noted that the letter of 5 February 2019 did not refer at all to the context of the conversation on 2 November 2018 during which he had made the statement and which Mr Boyle had described in his response of 4 December 2018. Mr Boyle stated that it appeared to him that the words that he was alleged to have used in the ‘allegation’ set out in the letter of 5 February 2019 were a combination of the three witness accounts aimed to reflect as poorly on Mr Boyle as possible.

[52] Mr Boyle noted that the witness statements within the 5 February 2019 letter had been put to him 12 weeks after 2 November 2018, and such a delay was prejudicial to him. During the hearing, Mr Boyle agreed when asked by Mr McLean that he and Mr Craig had agreed to certain delays in the investigation and that Mr Craig had offered to drive Mr Boyle to site for certain meetings. However, Mr Boyle stated that he had not agreed to the investigation being paused while Mr Craig took leave in December 2018; he had not known that Mr Craig was taking leave and had merely been informed that the investigation was being paused. Further, Mr Boyle denied that he had contributed to the delay in the investigation and stated that BHP could have rescheduled meetings in the investigation process to alternate times on the same day, rather than delaying process for weeks or months. 12 Mr Boyle requested to be provided with all relevant witness statements produced in relation to the investigation of his conduct on 2 November 2018.

[53] Mr Boyle reiterated that he had reflected on his comments and acknowledged that he should not have made the comment and the other matters set out in his response of 4 December 2018.

Meeting of 21 February 2019 and show cause response

[54] On 21 February 2019 he met with Mr Craig and Mr Douglas Field-Akred at the CFMMEU’s Dysart offices regarding the allegations against him. Ms Kath King, an office employee of the CFMMEU attended the meeting in person. Mr Smyth attended the meeting by telephone conference. During the meeting, Mr Craig provided to Mr Boyle and read aloud a letter authored by Mr Prytherch requiring him to show cause as to why his employment should not be terminated (the Show Cause Letter). The Show Cause Letter stated:

“Dear Kevin

Allegations about your conduct – Findings and Outcome of the Investigation

I refer to the Company’s investigation into your conduct on 2 November 2018. I also refer to your correspondence to me dated 6 February 2019, in which you requested a full copy of all relevant witness statements. I note that you have already been provided with all relevant information to enable you to respond to the allegations about your conduct and accordingly I will not be providing you with full copies of any witness statements.

As discussed with you in our meeting today, 21/02/2019, the investigation is now complete and findings have been made.

Findings

In reaching the following findings I have considered all relevant information. I have taken into account all of the information that was collected throughout the investigation, including your responses and the information provided by other parties. The investigation found that:

• On 2 November 2018 at approximately 10.30am you made inappropriate comments in the presence of Emma Ramirez, Janet Barden and Darrel Morris. Specifically, you stated words to the effect of “if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can either have it orally or anally”.

• You made the above comments in response to Janet Barden after she mentioned to the group that she had a headache.

It is also noted that during the investigation meeting on 30 November 2018, you were asked by Charlie Craig (Superintendent Coal Mining) and Kyle Harper (Supervisor Coal Mining) if you felt your comments were appropriate. You stated that you felt your comments were “funny” and that it was a joke. You then proceeded to repeat the joke to Mr Craig and Mr Harper, who told you your conduct was not acceptable. During this meeting you also reminded Mr Craig an Mr Harper on multiple occasions that “you work on a mine site”, in an apparent effort to explain the appropriateness of your conduct.

Breaches

I find your conduct on 2 November 2018 and again in the investigation meeting on 30 November 2018 unacceptable and in breach of:

1. The BHP Code of Business Conduct: Workplace equality and inclusion chapter, specifically:

a. Always demonstrate fairness, trust and respect in all your working relationships;

b. Never behave in a way that is or may be perceived as offensive, insulting, intimidating, malicious or humiliating to others;

c. Never engage in physically or socially intimidating behaviours.

2. BHP Our Charter Values, specifically: Respect and Integrity

Outcome – Show Cause

In the circumstances, the Company is considering taking disciplinary action against you, which may include termination of your employment. Before deciding the appropriate outcome, I would like to provide you with an opportunity to consider the findings above and your employment history with the Company.

You are invited to provide a written response and to show cause as to why your employment should not be terminated. Please provide your written response to me by 4pm on 26/02/2019 by email [email address]. If you do not provide a written response by this time, the Company will have no alternative but to make a decision in relations to your employment based on the information presently available.

…”

[55] The Show Cause Letter referred Mr Boyle to BHP’s Employee Assistance Program and instructed him to keep the investigation of the allegations against him confidential.

[56] Mr Boyle recalled that either he or Mr Smyth requested that the witness statements referred to in the letter of 5 February 2019 be produced to Mr Boyle, and Mr Craig responded that the witness statements would not be produced.

[57] Mr Boyle recalled that Mr Smyth said to Mr Craig that Mr Boyle’s repetition of his alleged statement during the meeting of 30 November 2018 should not form a further allegation against Mr Boyle.

With a head like that, it should ache

[58] In the written material before the Commission, it was alleged that when Mr Boyle met with BHP managers on 21 February 2019, he had said in reference to Ms Barden, that if she had said she had a headache, he used the words, “With a head like that, it should ache.”

[59] In cross-examination, Mr Boyle confirmed that during the meeting of 21 February 2019 he had used the words, “with a head like that, it should ache” as described in the evidence of Mr Craig at [152] and Mr Field-Akred at [200]. However, Mr Boyle did not agree that he had made that comment in reference to Ms Barden. Rather he said that he explained to Mr Craig and Mr Field-Akred that if a male, good friend of Mr Boyle’s had said to him that he had a headache, Mr Boyle would have responded, “with a head like that, it should ache”. He denied that he would have said that to a woman or to someone that was not a good friend. He also denied that he had been trying to make another joke during the meeting itself. 13

[60] On 27 February 2019 he emailed Mr Prytherch his response to the Show Cause Letter.

[61] Mr Boyle noted in his response that he had remained stood down from his employment since 14 November 2018, which he submitted was an unjustifiably long period, was unwarranted, and any dismissal from his employment would have an additional, significant impact on him as a result of the lengthy stand down period and was a reason unto itself that he should not be terminated.

[62] Mr Boyle noted in his response that the statement he was alleged to have made on 2 November 2018 had changed from the letter of 29 November 2018 to the findings made in the Show Cause Letter, without any explanation for that change. Mr Boyle responded that BHP had not addressed matters raised in his previous responses in any meaningful way. Mr Boyle relied upon his response of 4 December 2018 and maintained that the words he had used on 2 November 2018 were, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it either orally or anally”. Mr Boyle maintained that he had made his statement in the context of and continuing a conversation between Ms Barden and Ms Ramirez which had included a statement to the effect of, “When my husband wants sex and I don’t, I use the old headache excuse and it works for me”. Mr Boyle stated in his response that his intention to make the comment as a joke rather than to cause any offense should weigh in favour of his continued employment.

[63] Mr Boyle noted that the Show Cause Letter included findings that his conduct during the meeting of 30 November 2018 had been unacceptable as a result of him repeating his statement of 2 November 2018 to Mr Craig and Mr Harper, maintaining that the comment had been a joke and attempting to explain his conduct on the basis that he ‘worked on a mine site’.

[64] Mr Boyle noted in response that the suggestion that he had acted inappropriately on 30 November 2018 had not been raised until approximately two months later, and submitted that it was unfair to be criticised for simply repeating his statement in the context of the investigation, particularly in light of his commitment not to make similar statements again. Mr Boyle stated that if BHP was suggesting he had acted inappropriately on 30 November 2018, then he should be given a further opportunity to respond to that allegation.

[65] Mr Boyle denied in his response that he had said, “I work on a mine site” during the meeting of 30 November 2018. 14 He maintained, however, that it was not unusual in his experience to encounter jokes and banter similar to his statement of 2 November 2018 in the course of his employment. Mr Boyle maintained that despite his comments about similar jokes and banter on the mine site, he continued to view his statement of 2 November 2018 as inappropriate, and he had committed not to make similar statements again.

[66] Mr Boyle stated in his response that he had reflected on his comments and now appreciated that he should not have made the comment, although it was not intended to be offensive and was given in the context of conversations occurring at the time. Mr Boyle noted that none of the vehicle’s occupants had objected to the statement at the time and the other vehicle occupants had laughed at the comment.

[67] Mr Boyle noted in his response that he had not been provided with any of the ‘just culture’ paperwork completed as part of the investigation, and he requested an opportunity to review those documents and provide a response. Mr Boyle reiterated that the Show Cause Letter made no reference to Mr Boyle’s explanations about the context in which he had made his statement of 2 November 2018 and stated that if BHP was considering making adverse findings against him despite his explanation, that he should be given an opportunity to respond to BHP’s concerns before such findings were made.

[68] Mr Boyle stated that he had apologised for the comment. Mr Boyle stated that he was committed to meeting BHP’s expectations and would undergo any additional training or re-training that the BHP considered appropriate. He stated that he was willing to participate in mediation with any person offended by his statement.

[69] Mr Boyle stated that he was committed to returning to work with BHP at the Mine for the foreseeable future. Mr Boyle submitted that dismissing him from his employment would have ‘devastating impacts’ on him. He would be unable to meet his significant financial commitments, including a sum of approximately $91,000 that he owed to BHP, 15 and would be forced to move from the BHP-owned house that he resided in. He may be forced to leave his community in Dysart, QLD, which he had lived in for 15 years.

[70] Mr Boyle noted that he was of Aboriginal heritage, and his dismissal may force him to leave his ‘large and very close family’ within his community, including his brother who lived locally. Mr Boyle submitted in his response that he was married and had raised 12 children, all of whom were adults and had left home. Mr Boyle noted that he and his wife cared for Mr Boyle’s 12-year-old niece part-time.

[71] Mr Boyle stated in his response that he had been employed by BHP for approximately 16 years, although he acknowledged during the hearing that that figure was incorrect. 16 He had no relevant record of disciplinary action and had never previously been accused of similar inappropriate conduct and further similar inappropriate conduct was unlikely given his commitments to address his conduct. He was a skilled operator with a varied skillset and it would take a significant period of time to train another employee to his level of skill.

[72] Mr Boyle noted that he had earlier been on unpaid sick leave for more than four years and that his prospects of finding alternative work would be reduced because of that period of leave.

[73] Mr Boyle requested that BHP consider all alternatives to his dismissal and he requested to return to work immediately.

Termination of employment

[74] On 5 March 2019 he received a call from Mr Craig instructing him to attend a meeting with him at 4:00pm that afternoon. Mr Boyle attended the meeting with Ms King, and Mr Smyth was joined to the meeting by telephone.

[75] During that meeting Mr Craig handed to Mr Boyle a letter dated 4 March 2019, authored by Mr Prytherch informing Mr Boyle that he was dismissed from his employment effective 5 March 2019 (the Termination Letter). The Termination Letter stated:

“Dear Kevin

Your employment

I refer to the Company’s investigation into your conduct. I also refer to the meeting on 21^st February 2019, and the correspondence (“Show Cause Letter”) dated 19^th February 2019 informing you of the findings of the investigation and asking you to show cause as to why your employment should not be terminated. This meeting was attended by yourself, Charlie Craig (Superintendent Coal Mining), Doug Field-Akred and Stephen Smyth as your support person.

You submitted your written response to the Show Cause Letter on 27 February 2019. I have now considered your response. I note in your response you requested further documentation; however I am satisfied you have already been provided with all relevant information to respond to the allegations and findings made.

Outcome – Termination of Employment

Kevin, I have taken all relevant matters into account, including the investigative findings, your written response to the Show Cause Letter and your employment history.

The findings against you are serious in nature, and are entirely inconsistent with the continuation of your contract of employment. Your conduct is a serious breach of the BHP Code of Business Conduct and the BHP Charter Values. In the circumstances I have lost confidence that you will not engage in similar conduct going forward. Accordingly, I have decided to terminate your employment with effect from today, 5^th March 2019.

In accordance with the BMA Enterprise Agreement 2018, BMA will make a payment to you equivalent to five (5) weeks’ pay in lieu of notice of termination of your employment.

…”

[76] The Termination Letter went on to state that Mr Boyle would be paid all outstanding accrued entitlements, he remained bound by his contractual post-employment obligations and he must return all property of BHP by 8 March 2019.

Events since termination and attempts to mitigate loss

[77] Following his dismissal, Mr Boyle prepared an up-to-date CV, searched online job boards and made enquiries about several different mining positions including to ‘Global Product Search’, ‘WorkPac’ and ‘Onekey’, although he was unsuccessful in those applications. The day following his dismissal from BHP, Mr Boyle applied for a job at ‘Thiess’ and signed a ‘letter of offer’ for a job which was to commence on 13 June 2019. However, approximately one week before commencing that position, Mr Boyle was contacted by Thiess and informed that he was no longer required. He was paid two weeks’ notice in lieu by Thiess.

[78] In cross-examination, Mr Boyle was asked why the employment with Thiess ended. The following exchange occurred: 17

Mr McLean:	“And Mr Boyle, you say the job fell through?
Mr Boyle:	Yes.
Mr McLean:	You didn't start?
Mr Boyle:	Didn't get to start. No.
Mr McLean:	Why was that, Mr Boyle?
Mr Boyle:	I have no idea.
Mr McLean:	You have no idea. Did they give you reasons, Mr Boyle?
Mr Boyle:	No. They didn't give me reasons.”

[79] Mr Boyle was asked if he had failed a drug and alcohol test while attending Thiess, and he answered yes, he had. When contacted over the phone and informed his services would not required, he was not provided with a reason, and was told by Thiess that they did not need to provide to him a reason. The following exchange occurred: 18

Mr McLean:	“But you knew the reason, didn't you?
Mr Boyle:	I knew the reason.
Mr McLean:	You knew the reason?
Mr Boyle:	Yes.
Mr McLean:	So you just told us several times that you didn't know the reason you - - -?
Mr Boyle:	No. I said they didn't tell me the reason.
Mr McLean:	Mr Boyle, I think the transcript will reflect otherwise?
Mr Boyle:	Righto.
Mr McLean:	Mr Boyle, you were being intentionally dishonest right then, weren't you?
Mr Boyle:	No. I wasn't.
Mr McLean:	Mr Boyle, the reason you were being dishonest was because you know that information reflects very poorly on you, don't you?
Mr Boyle:	Yes. No. You're a trickster. You are.
Mr McLean:	Mr Boyle, why did you fail the drug and alcohol test?
Mr Boyle:	I blew numbers.
Mr McLean:	You blew numbers?
Mr Boyle:	I blew numbers. I was .028 or something.
Mr McLean:	You blew a positive blood alcohol reading?
Mr Boyle:	Yes.
Mr McLean:	And Mr Boyle, as you told me several minutes ago, you'd signed a contract of employment with Thiess?
Mr Boyle:	Yes. But I wasn't actually out there to work.
Mr McLean:	But that contract, Mr Boyle, set out Thiess' expectations of you, didn't it?
Mr Boyle:	That's correct.
Mr McLean:	And you knew that Thiess expected that you needed to maintain a zero blood alcohol reading, didn't you?
Mr Boyle:	I believe that's correct. But I wasn't actually out there to work that day.”

[80] Throughout March 2019, he had, with the assistance of his representative obtained from BHP records for his completed training courses, although the copy provided to him was incomplete. At the time he made his written statement, Mr Boyle was yet to receive an accurate training transcript.

[81] Mr Boyle stated that his final payslip from BHP listed a ‘loan balance’ amount of $91,724.00 which BHP claimed comprised overpayments made to him during his extended period of sick leave. Mr Boyle had already made arrangements with BHP to pay off that overpayment, but those arrangements were affected by the termination of his employment.

[82] During the hearing, Mr Boyle stated that he had commenced employment at a mine in Blackwater, approximately one week before the hearing of this matter. He said it is a similar position as he had held with BHP. He had applied for that position approximately one month before the hearing of this matter, and after his employment with Thiess fell through. 19

[83] Mr Boyle maintained that he wished to be reinstated to his employment with BHP and return to work at the Mine. Mr Boyle considered that he would not have any issue working with any other employee at the Mine if he were reinstated.

Telephone calls with Mr Craig following dismissal

[84] During the hearing, Mr Boyle was asked to respond to Mr Craig’s evidence that following his dismissal, he had called Mr Craig about accessing copies of his training records and during that call, Mr Boyle had said to Mr Craig in a raised voice and an aggressive tone, words to the effect, “You fucking cunts won’t let me get a job anywhere”. Mr Boyle vehemently denied that he had sworn at Mr Craig during that phone call. Mr Boyle stated that he had thought Mr Craig was doing him a favour by attempting to provide him with his training records, and he had no reason to swear at Mr Craig. 20

[85] Mr Boyle stated further during the hearing that he had had a further phone conversation with Mr Craig regarding questions that Mr Boyle had been asked by his insurers about the nature of his dismissal. Mr Boyle stated that Mr Craig had agreed to write to Mr Boyle’s insurers and confirm that he had not been dismissed for fraud or any similar allegations, although Mr Craig had never in fact written such a letter. 21

‘ATM incident’ involving Ms Ramirez

[86] Mr Boyle was recalled on the second day of hearing to give evidence in respect of the ‘ATM incident’ raised by Ms Ramirez during oral evidence, which is discussed below at [134] – [136]. He stated that the first he had heard of Ms Ramirez’ allegations regarding the ATM incident was on the first day of hearing. Mr Boyle denied that the ATM incident happened at all, and stated that he had not seen Ms Ramirez at all between 14 November 2018 and the first day of hearing. Further, Mr Boyle stated that he and his wife share a car and his wife uses their car in connection with her own employment on weekdays from approximately 2:00pm until 5:30pm. Mr Boyle stated that he lives about two miles outside of town and he does not generally leave home while his wife has their car. 22

[87] In cross-examination on this issue, Mr Boyle stated that there is only one local shopping centre that he typically goes to, which is the shopping centre where Ms Ramirez says the ATM incident occurred, although Mr Boyle stated that he does not go to that shopping centre regularly as his wife does the shopping. Mr Boyle did not recall ever yelling or raising his voice at anything or anybody while he had been at the shopping centre. 23 Mr Boyle conceded that while he and his wife share a car, it is possible that he could have been driven to the shopping centre by his brother or another family member while his wife was using their car. Mr Boyle stated that he had been shocked and disappointed to hear Ms Ramirez’ evidence about the ATM incident. He did not think that she was lying about the incident but thought that she must have been mistaken about the incident.24

Seeing Ms Barden at ‘Mitre 10’

[88] During the hearing Mr Boyle noted that he had run into Ms Barden on one occasion following his dismissal. He recalled that he and his wife had been at the Moranbah ‘Mitre 10’ hardware store when he had come across Ms Barden. Mr Boyle recalled that he and Ms Barden made eye contact and Mr Boyle nodded at her, said, “Good morning” and walked away. He recalled that he immediately walked back to his car to avoid further contact with Ms Barden. 25

Evidence of Mr Daryl Morris

[89] Mr Daryl Morris gave a written statement regarding this matter and appeared and gave evidence at the hearing. 26

[90] On 2 November 2018 he was working on the Mine on a ‘loader’. During his shift he was ‘swapped out’ of the loader by another employee so that he could take his crib break. Mr Morris recalled that the employee that swapped with him arrived at the loader in a light vehicle which also carried Mr Boyle, Ms Ramirez and Ms Barden. Mr Morris recalled that Mr Boyle and Ms Ramirez were in the rear passenger seat, Ms Barden was in the front passenger seat and Mr Morris took over driving the vehicle. Mr Morris stated that they drove to the ‘go line’ as Mr Boyle and Ms Ramirez were scheduled to swap out two other employees for their crib break. Mr Morris could not recall why Ms Barden had been in the vehicle.

[91] Mr Morris stated that during the drive either Ms Barden or Ms Ramirez had said that they had a headache, or at the very least, a headache was mentioned. A conversation had followed about having a headache but Mr Morris could not recall the specifics of that conversation. 27 When put to him by Mr McLean, Mr Morris could not recall that the word ‘rooting’ was used in the conversation.28

[92] Mr Morris did recall that during the conversation Mr Boyle stated, “When my missus has a headache I put Panadol on my cock and get her to suck it off”. 29 Mr Morris recalled that everyone in the vehicle ‘had a bit of a laugh’ about Mr Boyle’s comment and the conversation turned to another topic. During the hearing, Mr Morris stated he didn’t have any particular view on Mr Boyle’s comment at the time. He said that he had ‘heard worse come out of women’s mouths’ on the mine site and he did not think anyone in the vehicle had been offended by Mr Boyle’s comment.30 Mr Morris recalled that the vehicle had been parked at the time of Mr Boyle’s comment.31

[93] Mr Morris recalled that he dropped off Mr Boyle and Ms Ramirez, and picked up the two employees that had been swapped out, and then he, Ms Barden and the two other employees drove back to the ‘2 South’ crib hut. Mr Morris estimated that he drove the vehicle for a total of 20 minutes and Mr Boyle and Ms Ramirez were in the vehicle for about 10 minutes while he was driving. When asked during the hearing, Mr Morris did not recall that Ms Ramirez got out of the vehicle for a cigarette after Mr Boyle’s comment. 32

[94] A few days after 2 November 2018 he was approached during his shift by his Supervisor, Ms Renae Berrigan, who asked him about a comment that Mr Boyle had made while in the light vehicle asking Ms Barden to suck his cock. Mr Morris said to Ms Berrigan that that was not what Mr Boyle had said, and Mr Boyle’s comment had been in regard to his Mr Boyle’s wife, and not Ms Barden or anyone that was in the vehicle. Mr Morris stated that Ms Berrigan appeared surprised and walked away.

[95] Approximately two weeks after his discussion with Ms Berrigan he was asked by his Supervisor, Mr Matthew Rake to meet with him in his office after a morning tool box meeting. He attended Mr Rake’s office as instructed. Ms Barden was already in Mr Rake’s office.

[96] Mr Rake asked Mr Morris about Mr Boyle’s statement on 2 November 2018. After some prompting by Mr Rake, Mr Morris recalled Mr Boyle’s statement, and he restated it for Mr Rake and said that everyone had laughed at the statement. Ms Barden interjected that she had not laughed at the statement, to which Mr Morris said he recalled she had laughed. Ms Barden reiterated that she had not laughed at the statement and said that Mr Morris had not laughed either.

[97] Mr Morris recalled that he said that BHP’s procedures dictated that Ms Barden should first talk to Mr Boyle about his statement, and that Mr Rake had ‘jumped the gun’ by asking Mr Morris about the matter. Ms Barden had started to say that she had intended to talk to Mr Boyle about the matter, but Mr Rake had talked over her and told her to stop. Mr Rake asked Mr Morris how he would feel if his daughter or wife had heard Mr Boyle’s statement, to which Mr Morris told Mr Rake not to “pull that shit with [him]”, and said that he had heard women at the Mine make far worse comments than Mr Boyle’s statement.

[98] Mr Rake asked him whether he would provide a statement regarding the events of 2 November 2018, to which Mr Morris initially refused. Mr Morris broke from the meeting and called Ms Lewiston to take advice about his circumstances, and after speaking with Ms Lewiston, he returned to the meeting and agreed to provide a statement.

[99] Ms Barden remained in the room while he wrote out his statement. Due to Ms Barden’s presence and her previous comments that no-one had laughed at Mr Boyle’s statement, Mr Morris felt uncomfortable about his recollection that everyone in the vehicle had laughed and he did not include that fact in his statement.

[100] Mr Morris met with Mr Rake again the next day and told him that he thought Ms Barden should not have been allowed to stay in the room while he gave his statement, and he wished to change his statement to include that everyone had laughed at Mr Boyle’s statement. Mr Morris recalled that Mr Rake acknowledged that he had “fucked up” by allowing Ms Barden to remain in the room, and he amended Mr Morris’ statement while Mr Morris remained in the room. Mr Morris did not sign the amended statement and Mr Morris was never provided with a copy of his amended statement. 33

[101] Mr Morris stated that on a date he could not recall, but after he had made his revised statement, he spoke with Ms Barden about the matter. Ms Barden said that she just wanted to talk to Mr Boyle about the matter and get an apology from him, and she had not wanted the matter to go any further, but it had been taken out of her hands after Ms Berrigan took the matter to Mr Craig. 34

[102] When asked during the hearing by Mr Anderson, Mr Morris denied that Mr Craig had called him or spoken to him about the 2 November 2018 incident at all. 35

Evidence of Ms Janet Barden

[103] Ms Janet Barden made a witness statement regarding this matter and appeared and gave evidence at the hearing of this matter. 36 At the time of her written statement, Ms Barden was employed by WorkPac as a ‘step-up’ Coal Mining Supervisor at the Mine. At hearing, Ms Barden was employed in the same role, but in a permanent capacity.

[104] Ms Barden started working at the Mine during May 2018. She was still becoming accustomed to her role during November 2018, and was not yet conducting pre-start or ‘toolbox’ meetings before shifts. 37

[105] On 2 November 2018 she was travelling in a light vehicle with Mr Boyle, Ms Ramirez and Mr Morris in the course of ‘hot-seating’; swapping out other operator employees from machinery so that those employees could take crib breaks.

[106] Ms Barden stated that the vehicle was parked, and the occupants were waiting for a break in production to complete the hot-seating. Ms Barden recalled during the hearing that she had exited the vehicle and Mr Morris had swapped into the driver’s seat, with Mr Boyle being in the passenger’s seat and Ms Ramirez in the rear seat. Ms Barden was leaning in through the car’s window while waiting for a break in production. She could not remember anyone smoking near the vehicle. 38

[107] Ms Barden recalled that the occupants of the vehicle were making small talk, including about their families. Ms Barden denied that anything sexual was being discussed including having sex or avoiding having sex with their partners. During the hearing, Ms Barden stated that she had not had a headache at the time and did not recall saying that she had a headache. 39 She denied that there had been any discussion about ‘who wears the pants’ in each of the occupants’ relationships.40

[108] Ms Barden stated that during the conversation Mr Boyle made a comment to the effect of, “When my girlfriend had a headache I crushed up Panadol and rubbed it on my dick and said here bitch do you want it orally or anally”. She said that Mr Boyle laughed after he made the comment. Ms Barden stated that she was shocked by Mr Boyle’s comment and considered it to be highly offensive, inappropriate and in no way acceptable. Ms Barden did not state that she laughed at Mr Boyle’s statement, but if she had laughed it was only because she was unsure of how to respond.

[109] Ms Ramirez also laughed in what Ms Barden thought was ‘a nervous manner’. Ms Barden stated that as at 2 November 2018 she did not know Mr Boyle well as she was relatively new to Mr Boyle’s D Crew. After Mr Boyle made the comment she told him that she thought the comment was gross. 41

[110] When put to her during the hearing, Ms Barden did not accept that Mr Boyle had been attempting to tell a joke, albeit an inappropriate one. She understood that Mr Boyle’s comment was not directed at any of the vehicle’s occupants as a proposition or similar, but still considered the comment to be ‘disgusting’. She did not recall laughing and did not recall that Mr Morris laughed either. 42 She stated that she had heard other employees swearing at the Mine but never any inappropriate jokes.43 The following exchange between Mr Anderson and Ms Barden illustrates Ms Barden’s views on Mr Boyle’s comment:44

Mr Anderson:	“All right, but when the comment's said, you were outside the car, you accept that it wasn't directed at you. It was a general comment, I think you said, is that fair to say?
Ms Barden:	It was a disgusting, rude, derogatory comment.
Mr Anderson:	But it wasn't directed at anyone in particular, is the point that I'm getting at. It was just a statement made to everyone that was there, in the nature of a joke?
Ms Barden:	I don't see it as a joke, Mr Anderson.
Mr Anderson:	I appreciate that you don't see it as a joke, but that's the [way] in which it was said, wasn't it?
Ms Barden:	I didn't see it as a joke, Mr Anderson.
Mr Anderson:	I understand you didn't see it as a joke, but your observation of what he did, or Mr Boyle, so he was trying to be funny, wasn't he? Everyone laughed afterwards or at least some of the people laughed?
Ms Barden:	I don't know what he was trying to me, Mr Anderson.
Mr Anderson:	I understand you found the comment, you say, offensive and shouldn't have done it, and that's fine, but what I'm trying to get [to] really, is that it was not - and there were no signs that it was directed to try and cause offence to anyone in particular, was there?
Ms Barden:	It was derogatory against us women, Mr Anderson.”

[111] Ms Barden gave further evidence in response to my own questioning about how she was offended by Mr Boyle’s comment: 45

Commissioner:	“Ms Barden, you're upset with what Mr Boyle said, and on his account he said, 'If my old girl has a headache I crush the Panadol and rub it on my old fella and tell her she can have it orally or anally.' And your account is, 'When my girlfriend had a headache I crushed up Panadol and rubbed it on my dick and said, 'Here, bitch. Do you want it orally or anally?' Are you upset because you think he did do this at one stage in his life; or the possibility; or that it's a joke of some sort? Why are you upset by?
Ms Barden:	I've never heard anything so derogatory and downgrading in my life. Yes, your Honour, it's just totally sick to even talk like that.
Commissioner:	Is it because you think he has done that?
Ms Barden:	No, I don't think that at all, your Honour.
Commissioner:	All right, so it wasn't an account that he was giving?
Ms Barden:	It was not.
Commissioner:	You didn't take it that this was an actual account of what he had done?
Ms Barden:	You would hope not.
Commissioner:	You are upset because of what?
Ms Barden:	We have a code of conduct to follow at BHP and at Peak Downs mine. We have a lot of young women entering the mining industry and, you know, talk like this, like comments like that is just absolutely - it's below the line behaviour. It's totally unacceptable. It's against our code of conduct and it's totally unacceptable and inappropriate.
Commissioner:	Have you heard any other sexual talk at the mine?
Ms Barden:	I've heard people swear. But no, I don't stand for it, your Honour. I don't get involved in it. I don't stand for it.
Commissioner:	But have you heard any other sexual talk? What would be an acceptable level of sexual talk? If somebody said, for example, 'Last night I got some,' would that be reprehensible to you?
Ms Barden:	Yes. I don't appreciate that either, your Honour.
Commissioner:	That would upset you as well?
Ms Barden:	Yes.
Commissioner:	All right?
Ms Barden:	I don't know what - I'm not interested in what goes on in people's lives behind closed doors, you know. We're there to work and we're there to maintain a code of conduct, and that's to show respect for each and every one of us; you know, religions, cultures, race, whatever.
Commissioner:	So largely any sexual talk would offend you?
Ms Barden:	Absolutely. Swearing: like, I have heard swearing at times, and I do pull people up on swearing, because I don't…
Commissioner:	What do you tolerate hearing?
Ms Barden:	What do I tolerate?
Commissioner:	Yes, which words?
Ms Barden:	A respectable, positive…
Commissioner:	No, which words do you tolerate? Do you tolerate 'shit', for example?
Ms Barden:	Yes, 'shit' is okay and 'bloody'.
Mr McLean:	Objection, Commissioner. The issue I take with that is I think it's probably contextual, and I think asking the witness, absent context, what she would and wouldn't tolerate, perhaps isn't a fair reflection on her standards and her approach to workplace behaviour.
Commissioner:	Thanks for your concern, Mr McLean. Sit down. Yes, so which words upset you? The F-word and the C word?
Ms Barden:	C-word, yes.
Commissioner:	And the F-word?
Ms Barden:	Yes. There's no need for it, your Honour.
Commissioner:	You pull people up on that, do you?
Ms Barden:	I do pull people up on it.”

[112] Following on from the above exchange, Ms Barden agreed when put by Mr Anderson that more women were entering the mining industry, and Ms Barden as a supervisor had participated in high-level, managerial discussions about the importance of the Code to BHP’s workplace environment. Ms Barden stated that all workers at the Mine understood the importance of the Code. Ms Barden also noted that she herself has a personal ‘code of conduct’ for what is acceptable or unacceptable behaviour. 46

[113] Ms Barden stated that on 3 November 2018 she raised Mr Boyle’s comment with Mr Rake and Ms Berrigan, who both agreed with Ms Barden that Mr Boyle’s conduct was not acceptable. After speaking with them, she determined to make a complaint about Mr Boyle’s conduct, and Ms Berrigan asked her to complete an ‘event statement form’ setting out her complaint, which she did immediately and provided to Ms Berrigan. 47 During the hearing, Ms Barden recalled that Ms Berrigan was ‘sickened’ by Mr Boyle’s comment and encouraged Ms Barden to take the matter further. Ms Barden confirmed that she did not raise the matter with Workpac, her actual employer.48 When put to her by Mr Anderson, Ms Barden denied that she had only complained about Mr Boyle’s comment because of Ms Berrigan’s encouragement, and denied that otherwise she would have directly raised the matter with Mr Boyle herself.49

[114] During the hearing, Ms Barden stated that she had discussed the 2 November 2018 incident with Ms Ramirez after the incident to check whether she had also been upset by Mr Boyle’s comment. Ms Barden could not remember what day or time she had discussed the matter with Ms Ramirez, but recalled that Ms Ramirez had said Mr Boyle had made similar, inappropriate comments while on the bus into the site one morning. Ms Barden maintained that she had discussed the incident with Ms Ramirez after Mr Anderson noted to her Ms Ramirez’ evidence that she had not discussed the matter with Ms Barden. 50

[115] Ms Barden agreed during the hearing that she had had some interaction with Mr Boyle on each of 3 and 4 November 2018 in the course of their employment, and no further issues had arisen through those interactions. 51 Ms Barden stated that she learned that Mr Boyle had been stood down from his employment at the start of their next roster swing.

[116] Several days after making her complaint, and while she was not rostered to work she received a phone call from Mr Craig, who informed her that he would discuss her complaint with her when she was next on site. On a date that Ms Barden could not recall when she next returned to the Mine, she met with Mr Craig and Ms Berrigan in the ‘2 South’ area crib hut. She did not recall being asked any questions about the 2 November 2018 incident during that meeting. 52

[117] On 3 December 2018 Ms Barden received a phone call from Mr Craig who asked her several questions about the 2 November 2018 incident. During that conversation, she said to Mr Craig that at no time before Mr Boyle made the relevant statement had any of the vehicle’s occupants been discussing sex or ‘rooting’. At the hearing, Ms Barden recalled that she had called Mr Craig rather than him having called her as she had originally stated.

[118] When asked by Mr Anderson, Ms Barden agreed that she had discussed the 2 November 2018 incident with Mr Morris shortly after the incident, as described in Mr Morris’ evidence above at [101]. Ms Barden recalled that she had said to Mr Morris that she didn’t like to see anyone lose their job, but Mr Boyle’s comment was very inappropriate. Ms Barden recalled that she had said to Mr Morris that she wanted to catch up and chat with Mr Boyle about the matter and hopefully have him apologise for his comment.

[119] Answering further questions, Ms Barden recalled that she had told Mr Craig and Ms Berrigan that she would like to meet with Mr Boyle, but never had an opportunity to do so. When asked, Ms Barden could not say whether an apology from Mr Boyle would have been sufficient for her to deal with the matter. Ms Barden stated that she was never made aware by BHP that Mr Boyle had accepted that his comment was inappropriate or apologised for his comment and had offered to attend mediation with Ms Barden and Ms Ramirez, but she would have been open to participating in such a process. 53

[120] Ms Barden also recalled that she had been in the Mine’s supervisor’s office during a meeting between Mr Rake and Mr Morris at which Mr Morris had provided his recollection of the 2 November 2018 incident. Ms Barden was in the supervisor’s office at the time because she had been supporting Mr Rake as he was a new supervisor in the crew, and she had been following him around on the day in question. Mr Morris had said that she had laughed at Mr Boyle’s comment, and she denied laughing. Ms Barden could not recall whether she had stated that no-one laughed at Mr Boyle’s comment. 54

[121] During the hearing Mr Anderson asked Ms Barden whether she had been instructed at all about keeping the investigation into the 2 November 2018 incident confidential. Ms Barden could not recall being specifically instructed to keep the investigation confidential but agreed that it was ‘general practice that you don’t talk about confidential stuff like that’. 55

[122] Ms Barden stated that she would not be comfortable working with Mr Boyle if he was reinstated to his previous position of employment at the Mine. Ms Barden reiterated that Mr Boyle’s statement on 2 November 2018 had shocked her and she had not before heard any other person make statements of a similar nature at the Mine. Ms Barden agreed when asked by Mr Anderson at the hearing that she and Mr Boyle had worked on the same shift on each of 3 and 4 November 2018, in that they had been part of the same crew but had not personally worked together. Ms Barden agreed that the normal scenario for employees on the same crew was that they would work on the same shifts but not necessarily personally work together. 56 Ms Barden stated that she herself had been moved to a different crew.57

Seeing Mr Boyle at ‘Mitre 10’

[123] During the hearing Ms Barden agreed that she had seen Mr Boyle at the Moranbah ‘Mitre 10’ hardware store. She recalled that each of them had said a short hello and kept walking. Ms Barden stated that Mr Boyle was not aggressive towards her, and he had never done anything to indicate that he might threaten her. 58

Discussion with Ms Ramirez about Mr Boyle’s post-employment conduct

[124] During the hearing Ms Barden stated that a couple of weeks before the hearing of this matter she had a brief discussion with Ms Ramirez to check on how she was going. Ms Barden denied talking about these proceedings with Ms Ramirez. However, Ms Barden recalled that Ms Ramirez had told her that a few weeks before, Mr Boyle had driven past her and yelled abuse at her while she was out in Dysart. 59

[369] The Just Culture Decision Tree completed by Mr Craig on 16 January 2019 was an old version of the form and did not contain the statement above at [368]. It is not evident how old the form Mr Craig used, or which version of the form. It is apparent to me that the additional words have been inserted to ensure that the Just Culture Decision Tree is completed at the conclusion of an investigation and not beforehand.

[370] The investigation into Mr Boyle’s conduct was not concluded on 16 January 2019. In fact, the Respondent considered it necessary to discover further information. Most importantly, given there was a disparity between the witnesses and Mr Boyle as to what was said by him on 2 November 2018, a letter was sent by Mr Prytherch on 5 February 2019 titled “Ongoing investigation into allegations about your conduct”. The letter stated that the investigation was ongoing and no findings had been made about the allegation.

[371] It is apparent that if Mr Prytherch had not made findings as of 5 February 2019, Mr Craig had. He had determined that Mr Boyle’s conduct was intentionally deviant. This had not, however, been put to Mr Boyle. Mr Boyle was not informed that the Just Culture Decision Tree had been completed by Mr Craig.

[372] Mr Boyle provided a further response on 6 February 2019. This response was utilised to assist the Respondent in making findings as to the words used by Mr Boyle on 2 November 2018. The Respondent decided to accept Mr Boyle’s account as to the words used by him, rather than the other, various accounts.

[373] Mr Prytherch reviewed Mr Craig’s completed Just Culture Decision Tree on 18 February 2019. I have no criticism of the date on which this occurred, given the investigation was, by this stage, finalised, and the Show Cause Letter issued the following day on 19 February 2019. I am, however, extremely critical of Mr Prytherch’s decision to adopt Mr Craig’s completed Just Culture Decision Tree and simply add a box of comments adverse to Mr Boyle.

[374] Mr Craig was not the ultimate decision maker; it was Mr Prytherch. Mr Craig’s completion of his version of the Just Culture Decision Tree was made prematurely, and in breach of the Fair Play Guidelines by having been completed before the investigation had been completed. I am satisfied that Mr Prytherch’s consideration of the matter was infected by Mr Craig’s premature and unfair views of Mr Boyle’s conduct. I consider that there was substantial unfairness and prejudice to Mr Boyle on account of this course of action.

[375] There is no factual evidence that Mr Prytherch took into account any of Mr Boyle’s written statements of 4 December 2018 and 6 February 2019, where he made appropriate concessions and apologies and expressed remorse. I find that Mr Prytherch did not turn his mind at all to Mr Boyle’s correspondence. Mr Prytherch allowed Mr Craig’s erroneous findings that Mr Boyle did not agree with the breach to stand.

[376] It was not ever submitted by BHP that the steps within the Fair Play Guidelines need not be followed on account of the conduct engaged in by Mr Boyle constituting serious misconduct as detailed in the Fair Play Guidelines at [22]. Throughout the proceedings, BHP has detailed Mr Boyle’s conduct as a serious breach of it policies, the Code of Conduct and its Charter Values. Nowhere in the Show Cause Letter or Termination Letter is it stated that he was dismissed for serious misconduct. Further, Mr Boyle was paid five weeks’ notice on termination, with the Termination Letter stating that he was being paid that in accordance with the enterprise agreement. The enterprise agreement provides that if an employee has been terminated for serious misconduct, there is no obligation to give notice or a make a payment in lieu of notice.

[377] Without the Respondent asserting that the dismissal was for serious misconduct, I consider it necessary for the Respondent to have followed the Fair Play Guidelines.

[378] It appears to me that there was a lack of procedural fairness afforded to Mr Boyle by the refusal to provide to Mr Boyle a copy of the completed Just Culture Decision Tree. He requested it and was not provided it. At the conclusion of the investigation, and when the Show Cause Letter was put to Mr Boyle, he ought to have been entitled to understand all of the matters in the minds of the decision-makers, not just what is put in the Show Cause Letter. There is no sound reason to keep the completed Just Culture Decision Tree from the affected employee. The employee ought to know the decision maker’s determination of the conduct. The decision maker ought to inform the relevant employee, in this case, that the decision maker is treating the conduct as intentionally deviant.

“With a head like that, it should ache”

[379] Mr Prytherch has stated that he did not have regard to the purported statement of “With a head like that, it should ache” and any reference that it might have been stated by Mr Boyle about Ms Barden. There is no written material to demonstrate that Mr Prytherch was informed of this issue prior to his decision to terminate Mr Boyle’s employment.

[380] It is clear, however, that Mr Craig and Mr Prytherch had conversations leading up to the decision to dismiss Mr Boyle. There is insufficient evidence before the Commission to made a determination that Mr Craig influenced Mr Prytherch relevant to this purported statement referencing Ms Barden.

[381] Having heard all of the evidence from the parties, and having regard to Mr Field-Akred’s contemporaneous notes, I am not satisfied that Mr Boyle made this statement relevant to Ms Barden. Mr Field-Akred did not note that it was made about Ms Barden, and I would expect that if had positively been said about Ms Barden, the notes would reflect it so. I consider that Mr Craig and Mr Field-Akred’s impression that it was made in reference to Ms Barden is incorrect, and not maliciously so; just simply incorrect.

Length of service

[382] Mr Boyle had approximately seven years’ service as a Mine Employee at the Mine. I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd. 131 His Honour determined at [140]:

“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”.

[383] While seven years’ service at Mr Boyle’s age is a reasonable period of time, it is noted that nearly four years of that period was on leave without pay, and accordingly his service is closer to approximately 3.5 years’ service which is not a considerable period of time.

Previous health concerns

[384] It was submitted that the Commission should, in considering whether the dismissal was harsh, unjust or unreasonable, have regard to Mr Boyle’s previous health concerns. Whilst it was not within the knowledge of the Respondent at the time of the dismissal, Mr Boyle has been able to successfully find alternative employment in a relatively short period since the dismissal. Accordingly, I place little weight on the submission that the Respondent ought to have had regard to his previous health concerns in its consideration of the disciplinary action it was prepared to undertake.

Money owed by Mr Boyle to the Respondent

[385] I am satisfied that Mr Craig had sufficient awareness of the substantial size of the overpayment made to Mr Boyle, and the preparedness of the Respondent to assist Mr Boyle to make repayments. I am not, however, satisfied that Mr Prytherch gave this issue appropriate consideration. There was no specific mention of the large debt owed in any of the correspondence exchanged between the parties, nor any express regard to it within the termination letter as being purposely considered.

Length of time to complete investigation and made decision

[386] Mr Boyle asserted during the investigation, and in the proceedings before the Commission that the length of the investigation adversely affected him. Whilst I accept that the investigation took a period of nearly four months until the decision to dismiss was made, I do not accept that Mr Boyle was prejudiced. Part of the reasons for the duration were of his doing, and some of the Respondent. He was receiving payment on account of being on paid suspension during this time. When all is said and done, the length of the investigation was of some benefit to Mr Boyle given the likely conclusion of dismissal, with Mr Boyle receiving payment without having to attend for work.

Vicarious liability

[387] There is no evidence before the Commission that prior to the dismissal the Respondent gave any meaningful thought to the potential for the Respondent to be held vicariously liable in the event of any of the employees in the vehicle on 2 November 2018 making a relevant claim. There is no evidence that any of the employees suffered any lost time injury, or that appropriate inquiries were made to Ms Barden or Ms Ramirez’s employer, Workpac.

[388] Whilst I accept that the Code of Conduct and Charter Values are appropriate policies in place at the workplace, and they should be enforced to ensure, as much as is possible that people are not affected by sexual harassment in the workplace, there is no evidence that the Respondent’s decision to dismiss Mr Boyle was on account of its well-considered view that it might be held vicariously liable for his conduct.

Stand down without pay

[389] Clause 3 of the enterprise agreement affords the Respondent the right to stand down an employee without pay in the event of misconduct. It is an unusual feature within an enterprise agreement, and I suspect that it has been agreed between the parties as an alternative to termination, and on account of the high remuneration received by employees to satisfy the Act’s better off overall test. It reads as follows:

“Stand Down

(a) The Company may stand down an Employee for:

(1) part or all of a shift in the following circumstances:

(A) Refusal of duty; or

(B) Neglect of duty; or

(2) part or all of a shift or shifts if the Employee cannot be usefully employed in the Employee’s usual classification because of industrial action.

(b) In addition to the circumstances outlined above, where a disciplinary procedure provides for a suspension period as part of the range of penalties available, this sub-clause does not limit the Company's ability to stand down an Employee for the duration specified in the relevant disciplinary procedure.

(c) The Company may stand down an Employee during any period in which the Employee cannot usefully be employed because of one of the following circumstances:

(1) a break down of machinery or equipment that has lasted for more than four consecutive working days, if the Company cannot reasonably be held responsible for the break down; or

(2) a stoppage of work for any cause that has lasted for more than fourteen consecutive working days for which the Company cannot reasonably be held responsible.

(d) The Company will take all reasonable steps to minimise the need for standing down Employees under these circumstances, including where practical, carrying out training.

(e) The Company is not required to pay an Employee whilst they are stood down.”

[390] The Fair Play Guidelines nominate a period of up to 21 calendar days where an employee may be stood down without pay where the Respondent takes a Step 3 action.

[391] It was open to the Respondent to stand Mr Boyle down without pay for up to 21 calendar days. The Respondent witnesses stated that they gave this matter consideration but decided against it. It appears that the provision is rarely used, and in fact was first used at the Mine following Mr Boyle’s dismissal where other employees were involved in a near miss relevant to a safety incident.

[392] I find it surprising that the Respondent did not utilise the Step 3 procedure within the Fair Play Guidelines. The Step 3 procedure also allows for a final warning to be issued with the unpaid suspension. Relevant to the findings made by the Respondent as to Mr Boyle’s conduct on 2 and 30 November 2018, it might have sent an appropriate message that on account of telling a vulgar joke in the workplace, employees might expect to receive a final warning and an unpaid suspension of up to 21 calendar days.

Conclusion

[393] I have determined that the two reasons provided by the Respondent as the reasons for the dismissal are not valid reasons for the dismissal. Further, I have detailed my serious concerns relevant to the investigation and findings made by the Respondent, particularly what I consider to be a flawed and prejudicial application of the Fair Play Guidelines and completion of the two Just Culture Decision Trees.

[394] I do not accept that the decision maker made a holistic evaluation of Mr Boyle’s conduct and subsequent remorse over the incident, and did not afford to Mr Boyle a fair go all around. I find that Mr Craig’s prejudiced findings before the investigation was completed resulted in Mr Prytherch’s decision making being infected.

[395] I have also considered that there were alternatives to dismissal available to the Respondent. An appropriate course of action with the information before the Respondent might have been a final warning and an unpaid suspension in accordance with the enterprise agreement.

[396] However, the issue of Mr Boyle’s repetitious slur against Ms Barden and Ms Ramirez has weighed heavily on my decision in this matter. In an attempt to explain and downplay his conduct, Mr Boyle was, in my view, prepared to take Ms Barden and Ms Ramirez with him ‘under the bus’. He ought to have known that his repeated assertions against them would cause the investigation to be extended, allowing for further statements to be made. As I have stated above, the slur on the women that they were discussing sexual matters when they were not, is completely unfair. It is abhorrent that Mr Boyle would make such false assertions against the two women.

[397] If Mr Boyle had not been dismissed, and some other sanction had been imposed upon him such as an unpaid stand down, I have little doubt that he would still be asserting that the women had contributed to the conversation when I have found this not to be true. This would be unfair to the women involved, who have a right to now distance themselves from this unfortunate event, and not be forever remembered at the Mine as the women who were discussing ‘rooting’, resulting in Mr Boyle receiving a final warning and an unpaid stand down.

[398] Mr Boyle did not withdraw his assertions against the context of the discussions. I have determined that his assertions are not true.

[399] Accordingly, I find that Mr Boyle’s conduct breached BHP’s Code of Conduct, by engaging in a course of action throughout the investigation that would have the effect of being insulting, malicious and humiliating towards Ms Barden and Ms Ramirez. He did not treat them with respect, nor conduct himself with integrity, in spite of the Charter Values. Even without the Code of Conduct or Charter Values applying, I would find Mr Boyle’s conduct relevant to the false assertions to be reprehensible.

[400] I have also had appropriate regard to the sizeable debt owed by Mr Boyle to the Respondent and the financial difficulty the dismissal caused to Mr Boyle and his family, together with his other submissions relevant to his connection to the community.

[401] Having regard to all of the circumstances, the evidence and the submissions before me, I am satisfied that Mr Boyle’s termination was not disproportionate to the conduct engaged by him. I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair. The application is dismissed.

Other matters

[402] Given the factual context before me on post-employment alleged conduct, I wish to state that if it had been necessary to determine these issues in deciding an appropriate remedy for Mr Boyle, I would have found as follows:

• Mr Boyle did state to Mr Craig over the telephone words to the effect, “You fucking cunts won’t let me get a job anywhere”; and

• Mr Boyle did not harass Ms Ramirez near the ANZ ATM in Dysart and I consider that she has mistaken Mr Boyle for another person.

[403] For the sake of clarity, I have not had regard to the findings that I would make if it were necessary to do so. I made this very clear to the parties and to witnesses during the hearing that these issues canvassed in post-employment alleged conduct do not go towards the Commission’s consideration at s.387 of the Act, and would only be a necessary consideration if a remedy to an unfair dismissal was being considered. I considered it important to make the above statement to ensure that Mr Boyle was not unfairly portrayed as a person who has harassed Ms Ramirez in a public place.

COMMISSIONER

Appearances:

Anderson R, Construction, Forestry, Maritime, Mining and Energy Union, for the Applicant.
McLean J, BHP Legal Pty Ltd, for the Respondent.

Hearing details:

27 August 2019, Mackay.
28 August 2019, Mackay.
16 October 2019, Brisbane.

Final written submissions:

Closing submissions of the Applicant, 19 September 2019.
Closing submissions of the Respondent, 3 October 2019.
Closing submission of the Applicant in Reply, 11 October 2019.

Printed by authority of the Commonwealth Government Printer

1 PN3064.

2 PN3283.

3 PN3323.

4 PN3345.

5 Statement of Mr Kevin Boyle, 14 June 2019, Exhibit A1; Statement in reply of Mr Kevin Boyle, 6 August 2019, Exhibit A2.

6 Transcript of proceedings, 27 August 2019, PN71 – PN116.

7 PN484 – PN538; PN557 – PN558.

8 PN587 – PN602.

9 PN456 – PN464.

10 PN560 – PN586.

11 PN585 – PN586.

12 PN631 – PN708.

13 PN714 – PN735.

14 PN21 – PN23.

15 PN823 – PN827.

16 PN762 – PN771.

17 PN188 – PN191.

18 PN209 – PN220

19 PN169 – PN173.

20 PN1048 – PN1080.

21 PN1098 – PN1111.

22 PN2069 – PN2077.

23 PN2087 – PN2097.

24 PN2087 – PN2144.

25 PN2078 – PN2079.

26 Statement of Mr Daryl Morris, undated, provided on 19 July 2019, Exhibit A3.

27 PN995 – PN997.

28 PN993 – PN994.

29 PN982 – PN985.

30 PN913.

31 PN923 – PN924.

32 PN921 – PN922.

33 PN948 – PN952; PN974 – PN979.

34 PN966 – PN972.

35 PN929 – PN935.

36 Statement of Ms Janet Barden, 25 July 2019, Exhibit R4.

37 PN1495 – PN1499.

38 PN1550 – PN1582.

39 PN1507 – PN1512.

40 PN1752 – PN1759.

41 PN1520 – PN1521.

42 PN1525 – PN1537.

43 PN1693 – PN1694.

44 PN1585 – PN1590.

45 PN1793 – PN1810.

46 PN1812 – PN1818.

47 PN1594 – PN1649; PN1713 – PN1722.

48 PN1650 – PN1654.

49 PN1705 – PN1707.

50 PN1741 – PN1748.

51 PN1503 – PN1505.

52 PN1708 – PN1712.

53 PN1669 – PN1691.

54 PN1730 – PN1737.

55 PN1749 – PN1751.

56 PN1538 – PN1541.

57 PN1776.

58 PN1760 – PN1764.

59 PN1764 – PN1774.

60 Statement of Ms Emma Ramirez, 24 July 2019, Exhibit R3.

61 PN1243 – PN1245.

62 PN1191.

63 PN1234 – PN1242.

64 PN1151 – PN1153; PN1261 – PN1265.

65 PN1208.

66 PN1212 – PN1219.

67 PN1220 – PN1230.

68 PN1177 – PN1186.

69 Statement of Ms Emma Ramirez, 24 July 2019, Exhibit R3, Annexure ER-1.

70 PN1248 – PN1256.

71 PN1267 – PN1269.

72 PN1270 – PN1294; PN1346 – PN1408; PN1456 – PN1457.

73 Email between Workpac and BHP, Exhibit R6.

74 PN1146 – PN1150; PN1163 – PN1173; PN1429 – PN1430.

75 Statement of Mr Charlie Craig, 25 July 2019, Exhibit R7.

76 PN2183 – PN2186.

77 PN2169 – PN2178.

78 PN2263.

79 PN2281.

80 PN2957.

81 PN3120.

82 PN2952.

83 Statement of Mr Brad Prytherch, 25 July 2019, Exhibit R9.

84 PN3316.

85 PN3356.

86 PN3398.

87 PN3426 – PN3427.

88 PN3447.

89 PN3465.

90 PN3490.

91 PN3508.

92 PN3679.

93 PN3526.

94 PN3616.

95 Statement of Mr Kyle Harper, 24 July 2019, Exhibit R5.

96 PN1893 – PN1902.

97 PN1879 – PN1885; PN1916 – PN1918.

98 PN1910 – PN1914.

99 PN1952 – PN1958.

100 PN1944 – PN1950; PN1982 – PN1992.

101 PN1960 – PN1964.

102 PN1976 – PN1980.

103 PN1937 – PN1941.

104 Statement of Mr Douglas Field-Akred, 24 July 2019, Exhibit R8.

105 PN3236 – PN3239.

106 PN3214 – PN3235.

107 PN3242 – PN3249.

108 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

109 Annetta v Ansett Australia Ltd (2000) 98 IR 233, [10].

110 Edwards v Justice Giudice [1999] FCA 1836, [6] – [7]; King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [24].

111 PN2515, PN2539 – PN2541.

112 Macklin v BHP Coal Pty Ltd [2018] FWC 7429, [498].

113 Ibid.

114 [2007] NSWIRComm 33.

115 Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186, 191 – 192.

116 PN3526.

117 PN276 – PN287.

118 PN910; PN989 – PN990.

119 PN1754 – PN1755.

120 [2001] FMCA 6.

121 PN831.

122 Closing submissions of the Respondent, 3 October 2019, Paragraph [104(b)].

123 [2001] FMCA 6 at [97]-[108].

124 (1996) 142 ALR 681 per Moore J.

125 Transcript of proceedings, 16 October 2019, PN183 – PN 184, PN205.

126 16 October 2019, PN244 – PN 245.

127 [2010] FWA 1822.

128 [2019] FWC 7150.

129 Transcript of proceedings, 16 October 2019, PN303 – PN327.

130 [2014] FWCFB 7198.

131 [2010] FWA 4342.

Kevin Boyle v BHP Coal Pty Ltd

[2020] FWC 1080

4 MARCH 2020

DECISION