Maritime Union of Australia v DP World Melbourne Ltd
[2014] FCA 1321
•10 December 2014
FEDERAL COURT OF AUSTRALIA
Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321
Citation: Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321 Parties: MARITIME UNION OF AUSTRALIA and MARK ANTHONY JOHNSTON v DP WORLD MELBOURNE LIMITED (ABN 52 000 049 301) File number: VID 74 of 2014 Judge: JESSUP J Date of judgment: 10 December 2014 Corrigendum: 13 January 2015 Catchwords: INDUSTRIAL LAW – Contract of employment – Misconduct of employee – Advising other employee to lie to employer in disciplinary investigation – Abusing third employee for having given evidence in investigation – Whether breach of common law duty of loyal and faithful service – Whether breach of employer’s code of conduct and policies – Whether grounds for summary dismissal.
INDUSTRIAL LAW – Contract of employment – Employee dismissed summarily for misconduct – Employer appointed investigator – Passage of time during which employee continued to work – Whether contract affirmed.
CONTRACT – Repudiation – Prolonged investigation before decision made to accept repudiation – Whether contract affirmed.
INDUSTRIAL LAW – Adverse action – Employee ostensibly dismissed for misconduct – Whether reasons for dismissal included employee’s position as union officer, entitlements under industrial instruments and union activities.
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342 & 346
Fair Work (Registered Organisations) Act 2009 (Cth)
Occupational Health and Safety Act 2004 (Vic) s 25Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1
Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26
O’Connor v SP Bray, Ltd (1936) 36 SR (NSW) 248
Sargent v ASL Developments Ltd (1974) 131 CLR 634Date of hearing: 23-27 June, 1-4 and 23 July 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 278 Counsel for the Applicants: S Moore with Y Bakri Solicitor for the Applicants: Maurice Blackburn Lawyers Counsel for the Respondent: J Snaden with R O’Neill Solicitor for the Respondent: Seyfarth Shaw Lawyers FEDERAL COURT OF AUSTRALIA
Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321
CORRIGENDUM
In paragraph 197 of the Reasons for Judgment published 10 December 2014, in the first line, the word “two” should be replaced with “four”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 13 January 2015
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 74 of 2014
BETWEEN: MARITIME UNION OF AUSTRALIA
First ApplicantMARK ANTHONY JOHNSTON
Second ApplicantAND: DP WORLD MELBOURNE LIMITED (ABN 52 000 049 301)
Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
10 DECEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 74 of 2014
BETWEEN: MARITIME UNION OF AUSTRALIA
First ApplicantMARK ANTHONY JOHNSTON
Second ApplicantAND: DP WORLD MELBOURNE LIMITED (ABN 52 000 049 301)
Respondent
JUDGE:
JESSUP J
DATE:
10 DECEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Until dismissed from his employment in circumstances which led to the present proceeding, the second applicant, Mark Johnston, was employed as a stevedore by the respondent, DP World Melbourne Ltd, at West Swanson Dock (“the terminal”). He was a member and delegate of the first applicant, the Maritime Union of Australia (“the Union”), an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). His employment was covered by the DP World Melbourne Enterprise Agreement 2011 (“the enterprise agreement”), an enterprise agreement made under, and a “workplace instrument” within the meaning of, the Fair Work Act 2009 (Cth) (“the FW Act”).
On 28 January 2014, the respondent summarily dismissed Johnston from his employment. The ostensible reason for that dismissal was Johnston’s misconduct in advising a fellow employee to lie when questioned by the respondent’s management about his own conduct and in directing offensive invective at another fellow employee on account of her having given information to management about the first employee’s conduct. In this proceeding, the applicants allege that the reasons for Johnston’s dismissal were, or included, reasons which made the dismissal unlawful under Pt 3-1 of the FW Act. They also allege that the termination of Johnston’s employment was a wrongful dismissal under his contract, and that he elected to affirm the contract and is entitled to specific performance, or alternatively, damages.
Johnston was first employed at the terminal in February 1990. He became a delegate for the Union in 1996, and had been a delegate ever since. His work involved driving a “straddle carrier” at the terminal. Employees such as Johnston were either “fixed salary employees”, as Johnston himself was, or “variable salary employees”. Johnston was a delegate for the fixed salary employees. He was a longstanding member of the Employee Representative Committee (“the representative committee”), a consultative forum of representatives of management and employees which met regularly, usually about monthly. It seems that, on the employee side, the members of the representative committee were the various delegates of the Union at the terminal.
The evidence on which the applicants relied in their case under Pt 3-1 of the FW Act covered various events and circumstances in what, I would find, was the normal conduct of industrial relations at the terminal. Johnston was involved in them as a delegate and member of the representative committee. Absent a perspective that was conditioned by the need to make good a case under Pt 3-1, there was nothing in those events and circumstances that stands out as something that might have given the respondent, or any employer, any reason to consider the termination of Johnston’s employment. So far as the evidence discloses, Johnston was operating as union delegates do, advancing his members’ interests in relation to concerns and issues that arose from time to time. In due course, I shall have to consider those events and circumstances, since Johnston’s activities in relation to them are now alleged to have been amongst the reasons for which he was dismissed. I propose, however, to commence by laying out what I would have to say are the real facts of the case – that is, the facts which actually led to Johnston’s dismissal – and the processes by which the respondent determined that he should be dismissed.
THE FACTS LEADING TO JOHNSTON’S DISMISSAL
On 17 July 2013, one of the straddle drivers employed by the respondent at the terminal, Stewart Bennier, was moved to a different work location without any reason, at least that was apparent to him. At his break, he asked one of the foremen why he had been moved. That foreman did not know, and was not able to accompany Bennier “upstairs” (the euphemism used at the terminal for the management offices) to find out. On the foreman’s advice, Bennier then asked another of the respondent’s employees, Daniel Madigan, to accompany him. Seeing that Bennier was (and here I relate Bennier’s recollection of Madigan’s words) “a little bit fuming angry”, Madigan offered to go upstairs himself on Bennier’s behalf to find out what was going on. By this stage it appeared to have been established that it was the supervisor, Stephen Templar, to whom Madigan would need to speak.
Upon his return about 15 minutes later, Madigan told Bennier that Templar was very upset that he (Bennier) had changed positions without telling him (Templar). That change of position was not the one on 17 July 2013 to which I have referred. It was a previous change which, it seems, Bennier had implemented of his own accord. Bennier’s response was to refer to the other members of the workforce who had regularly changed position, and complained that he appeared to have been the only one to have, in effect, got on the wrong side of Templar as a result of it. At this point Madigan told Bennier that Templar had expressed the view that he (Bennier) was not competent enough to be “working over the crane”, and “you’re not a team player”. This must not have been well-received by Bennier, because Madigan then said to him, “Look, don’t get upset, just go and do your job and just try to forget about it.”
On the following day, 18 July 2013, Bennier and Madigan were in conversation seated at a table in the amenities room at the terminal. Referring to Templar, Bennier said, “I’m still angry at what he did to me.” It is what Bennier said next that started the ball rolling apropos the events which ultimately led to the termination of Johnston’s employment. Bennier’s recollection was that he said, still referring to Templar, “how dare he call me not a team player when he’s fucking Annette Coombe behind Peter’s back”. Coombe was another stevedore in the respondent’s employ. The “Peter” referred to by Bennier was Peter Whelan, also a stevedore and believed by Bennier to be in, or to have been in, a personal relationship with Coombe, the specific nature of which (ie husband, fiancé or similar) Bennier was unaware.
Another stevedore who was in the amenities room at the time, Sharon Bowker, overhead what Bennier had said to Madigan. She gave evidence. Her recollection was that Madigan had told Bennier that Templar had said that he (Bennier) was not a team player. Bennier’s response was, “who the fuck does he think he is saying I’m not a team player when he’s fucking Annette Coombe?” Bowker’s evidence departs from that of Bennier in one material respect only, namely, that Madigan had then said, in her hearing, that Templar had accused Bennier of not being a team player. It will be recalled that, according to Bennier’s evidence, he had been told about that the previous day. This slight discrepancy – on which nothing turns – was not explored in the cross-examination of either witness, however, and I am disposed to think that the subject might well have been mentioned again by Madigan in the amenities room as part of a general, casual, conversation.
According to Bowker’s evidence, when she heard what Bennier said to Madigan about Templar, she said to him, “Do you know if that’s true?”, to which Bennier responded, “Well, everyone is saying it”. Bowker repeated her question, “Well, do you know if it’s true?”, to which Bennier’s response was to shrug his shoulders. According to Bowker’s evidence, she then said to Bennier, while pointing her finger at him, “It’s not appropriate. It’s not fair that you’re dragging Annette into your problems with Stephen Templar. He’s a married man. It’s not fair to her. If you’ve got any issues with Stephen Templar, you need to take them upstairs yourself. What you’re doing is wrong. What you’re all doing is wrong.” This last comment appears to have been directed to the situation, as reported by Bennier, that others in the workplace were speaking of Templar and Coombe in the same terms as he had to Madigan. Although less elaborate, Bennier’s evidence was consistent with Bowker’s.
In her evidence, Bowker said that, after she had upbraided Bennier in the terms I have set out, she could “see his demeanour change … he wasn’t aggressive … I knew that he knew he had done the wrong thing.” Bowker said that she knew Bennier, that he was “not a bad person”, and that “he wouldn’t normally talk like that.”
On a day which Coombe placed as Sunday 28 July 2013, Bowker saw Coombe in the car park as they were arriving at, and departing from, work. Bowker told Coombe about the exchange between Madigan and Bennier in the amenities room on 18 July 2013. She did so because she was concerned that “it would have got back to her and maybe not reported accurately”. She related accurately what Madigan and Bennier had said. According to Bowker, on hearing this news Coombe rolled her eyes and said, “I’m sick of this. I’m over it.” She gave Bowker to believe that every time Templar reprimanded somebody, she (Coombe) would get “dragged into it” (Bowker’s words in her evidence). According to Bowker, Coombe did not cry, but it was clear that she was annoyed.
A couple of days later, Coombe telephoned Bowker and told her that she had decided to lodge a complaint with management about Bennier’s comments. She wanted to know whether Bowker would verify the accuracy of the matter complained of, and would be prepared also to verify what had happened if called upon by management to do so. Bowker agreed to do this. In her evidence, Coombe said that she complained to management because “these comments had been ongoing for two years”. Every time she was dealt with in a way that might be perceived as involving favourable treatment, such as receiving an overtime shift or a shift extension, she was subjected to crude comments about her doings with Templar or others. Further, according to Coombe’s evidence, these kind of comments were associated with “behaviours displayed towards [her] which [she believed were] consistent with bullying.” Indeed, she said that “the behaviours [were] far worse than the rumours.” When she raised her concerns with management, she was told that nothing could be done unless she had a witness. Bowker’s readiness to support her in a complaint against Bennier gave her the witness that she needed.
On 31 July 2013, Coombe prepared a written complaint about the comment made by Bennier. I do not need to set out the terms of that complaint, as it followed closely Bowker’s version of events on 18 July 2013, as set out above. Coombe addressed her complaint to Sheryl Pastro, the Human Resources Manager at the terminal, with a copy to Vlad Jotic, the Operation Superintendent there. She said that Bennier’s comment was false, offensive, slanderous, disrespectful and damaging to the integrity, character and reputation of Templar and herself.
On 5 August 2013, Jotic required Bowker to meet with him in his office. She went to Jotic’s office, where he told her that that there had been a complaint made in relation to a discussion in the amenities room in which she had been involved. Bowker said that she understood what Jotic was talking about. Jotic said to her: “This is very serious. It has been very upsetting for Annette and Stephen and for his family.” He said that she would be called into the office the following day, and that she should think about what she was going to do. Bowker said that she would verify the complaint, but that she was concerned for Bennier.
On the following day, 6 August 2013, Bowker received a message to the effect, so far as she recalls, that she was needed in Pastro’s office. She was working on the afternoon shift at the time, from which she placed this summons some time after 2:30 pm. Bowker proceeded to Pastro’s office, where she met with Pastro and Jotic. She corroborated the complaint as set out in Coombe’s memorandum of 31 July 2013. She made a point of asking them to inform Bennier that it was she who had verified Coombe’s complaint, because she did not want Bennier to be left in a state of uncertainty as to which of his workmates was responsible for him having to defend Coombe’s allegation.
Later in the afternoon of that day, Pastro and Jotic sent for Bennier. When he got the message that he was required “upstairs”, as he put it, he was working in his straddle crane. He had an inkling that the reason he was required upstairs related to his comment to Madigan because, about a week previously, he had been told by Templar that he (Bennier) “will be speaking with HR on Monday”. Johnston was the union delegate on duty that day, and Bennier asked him if he would accompany him to the meeting upstairs. According to Bennier’s evidence, he met Johnston in a small office outside the amenities room, and told him that he had to go upstairs to speak with Jotic and Pastro. Johnston said, “I’ve got a rough idea what it’s about.” Bennier briefly explained what had happened on 17 and 18 July, and referred to the comment which he had made in the amenities room about Coombe and Templar. Bennier was worried about the situation in which he found himself. He said to Johnston, “Look, I’m shitting myself about this. I could lose my job over this.” According to Bennier’s evidence, Johnston’s response was “We will go upstairs, just deny [and] you will be right.”
Johnston denied that he had told Bennier to deny the allegation against him. His version of his advice to Bennier was, “Let’s go up and listen to what management have to say. We don’t know what it’s about. Go and listen to what management have to say. If it is that – and you’ve just briefly told me your version of it – you stick to that story.” This conflict of evidence as between Bennier and Johnston will have to be resolved, but I propose next to refer to the meeting which these men had with Pastro and Jotic. They proceeded to that meeting after the discussion to which I have just referred.
At the meeting, which commenced at about 4:15 pm on 6 August 2013, Jotic told Bennier that he and Pastro were investigating a complaint that had been made about something that Bennier had allegedly said up in the mess room, namely, that Templar was (according to the delicate way in which Pastro put it in her evidence in chief) “effing Annette Coombe”, and wanted to hear his response to that allegation. Bennier denied the allegation. He said that he could not recall making the comment, and, according to Pastro’s evidence, did not “really clarify that there was any discussion between him and Sharon Bowker, and maintained that he hadn’t said anything to that effect.” According to Jotic’s evidence, Bennier “essentially gave a no comment interview”. According to Bennier’s evidence, “I lied and denied it. Yes, they just kept questioning on the same question – what happened that night, what I said, and I just denied, I didn’t say what I said.”
In the course of this meeting, and conformably with Bowker’s wish previously expressed to Pastro, Pastro told Bennier that Bowker had made a statement about the matter. According to Pastro’s evidence, Johnston did not react well to that information. His comment was, “this doesn’t normally get to management – this is normally handled in-house.” Johnston accepted that he probably would have said something to that effect, adding, “that’s how we’ve pretty much always handled the majority of issues down there.”
Jotic and Pastro then interviewed Madigan, but that involved a very short, inconclusive, discussion. According to Pastro’s evidence, Madigan said that he did not recall Bennier making any comment about Coombe or Templar. Neither did he recall a discussion between Bowker and Bennier.
Pastro and Jotic did not believe what Bennier had told them. According to Pastro’s evidence, the manner in which he answered their questions at the meeting made them think that he was not telling the truth. Accordingly, they invited him to return for a second meeting (still late on the afternoon of 6 August 2013), at which time they asked him whether he was sure that he didn’t make comments regarding Coombe and Templar sleeping together, and that he was sure that he was telling them everything; and they asked him whether there was anything else that he wanted to say in regard to the matter. In response, Bennier maintained that he had not said anything about Coombe or Templar. Johnston, who again accompanied Bennier at this meeting, said in his evidence that Bennier “got grilled for … 15 minutes about whether he mentioned Annette Coombe’s name” and his response was, “No. No, no, no, no. Denied.”
Something of significance to the present case occurred on 6 August 2013 between the two meetings which Bennier and Johnston attended with Pastro and Jotic. As mentioned above, Johnston was concerned (to use a term at the mild end of the spectrum) that a union member had taken her complaint about the behaviour of another union member to management. Although the actual complainant was Coombe, it was Bowker who, as Johnston correctly understood, had been the direct witness to the conversation between Bennier and Madigan. In the first meeting with management on 6 August, Johnston formed the impression that Bowker had made a written, signed, statement on the subject, since Pastro appeared to be reading from such a statement in the course of putting the allegation to Bennier. As it happens, that was not correct: the only written statement in Pastro’s possession was the one made by Coombe, while Pastro had her own notes of the meeting at which Bowker had corroborated the details of Coombe’s complaint. But Johnston came away from the first meeting with the strong impression that Bowker had made a written statement in support of Coombe’s complaint. As he said in his evidence, “I had never heard a statement read out against another employee in all the years I’ve been a delegate.”
Johnston then rang the Deputy Secretary of the Victorian Branch of the Union, David Schleibs. He told Schleibs that he had just represented Bennier in a meeting with management, and that management had read out accusations which he thought were “fairly serious”. He told Schleibs about Bowker’s statement and, according to Johnston’s evidence, “Dave was the same as me. He was shocked.” Schleibs said that he had just had “those two in my office yesterday or the day before and working through the issues”. The employees referred to as “those two” were Coombe and Bowker. In his evidence, Schleibs said that he could not understand why, if Bowker had a problem with another member, she would not have involved the Union to try to resolve the issue. He asked Johnston to have Bowker call him.
Johnston then went looking for Bowker with a view to having her call Schleibs. He found her in the amenities room. Commencing with Bowker’s evidence, she said that “the room was pretty full. There were a lot of people milling around ….” She was seated at one of the tables when Johnston entered the room and asked to talk to her. She stood up and they walked a short distance away from the table. Johnston said to her, “I’ve just had to go upstairs. I’ve just had to front with Stewart Bennier…You’ve just put in a complaint about Bennier, you fucking lagger.” Bowker said that she had not put in a complaint. Johnston said that she had, and that he had “read it, word for word”, adding, “I saw your signature on it.” Bowker folded her arms and said that was incorrect, and that she had not made a complaint, and that there was no document with her signature on it. Johnston then said that he had spoken to Schleibs, and continued, “You need to find yourself a solicitor. You’re going to find yourself in court and the MUA aren’t supporting you. Never in my life have I been up in the office and had someone’s name mentioned to me like that. You’re a fucking lagger.” Bowker tried to explain to him that she had not made a complaint, but had been upstairs as a witness in relation to a complaint. But Johnston did not believe her. As Johnston turned to leave, he threw his arms in the air and said “I hate people like you.” Bowker interpreted this as Johnston walking off on her while she was trying to defend herself.
Johnston walked out the door of the amenities room on to a balcony which acted as a connection between the door and a flight of stairs, external to the building, which gave access to the room (the room being on the first floor of that building). Bowker followed him. On the balcony, she said to Johnston, “Mark … just don’t turn this into something big. You know what has been going on with Annette in the workplace and she’s just trying to get it sorted out. She doesn’t want anything but an apology from Stewart Bennier.” Johnston’s response to Bowker was, “I haven’t got time to talk to you. I’ve got to go back upstairs with Bennier and you need to call Dave.” From the balcony, Bowker could see Bennier waiting at the foot of the stairs. She saw Johnston descend the stairs, meet with Bennier, and depart together with him.
Turning next to Johnston’s evidence, he said that, when he drew Bowker aside in the amenities room, he said, “Look, I – I can’t believe – I just walked up and represented Stewart Bennier and you – you put in a statement against him.” Bowker responded that she had not signed anything. Johnston said, “I don’t care what you done. You made a statement against another employee. I can’t believe that, Sharon. That’s lagging.” He then walked away, saying as he did, “Just phone David up.” Johnston denied that he called Bowker a “fucking lagger”; that is to say, he denied using either of those words. He denied telling her that she needed to find a solicitor because she was going to be in court, and he denied saying that the Union would not support her. According to Johnston, Bowker did not follow him out on to the balcony and, necessarily, at no time was he arguing with her there. Bennier was not waiting at the foot of the stairs after his (Johnston’s) conversation with Bowker: at the time, he did not even see Bennier. He did descend the stairs with a view to keeping an appointment with Bennier (to proceed to the second meeting with management), but he had to wait for Bennier to arrive.
The next witness to give evidence on this subject was Stephen Walmsley, a stevedore employed by the respondent at West Swanson Dock. He was in the amenities room on 6 August 2013 when Johnston and Bowker were having their conversation. To him, Johnston did not appear angry, and Bowker did not appear upset. On the other hand, the conversation he observed struck him as unusual because Johnston and Bowker were not known to be friends – not “in the same circle”, as Walmsley put it. He asked Johnston what was happening, or what was “up”, but he got no response. Johnston simply walked out of the room. In his evidence in chief, Walmsley said that he followed Johnston out on to the balcony, where they conversed for a very short period, enough time for Walmsley to learn from Johnston that “he had fronted management with another employee”. While he was there, Bowker was not on the balcony.
Bennier also gave evidence about these events, at least to the extent of the controversy about who was on the balcony, and for what purpose. He was still with Johnston after the two had come from the first meeting with Pastro and Jotic. From ground level, Johnston went up the stairs, while Bennier waited for him at the foot of the stairs, intending to return to his work station. It is apparent that Bennier had not by then been told by Johnston that they had to return for another meeting with management. Although Bennier said nothing about it, I would infer that Johnston had by then had his phone conversation with Schleibs, since it was from that conversation that he was given the mission to find Bowker, which explains why he went into the amenities room. At some point while he was waiting at the foot of the stairs, Bennier saw Johnston and Bowker in conversation on the balcony. He said that they were not “really yelling” but were “raising their voices a bit”. While he could hear them talking, he could not, for the most part, make out what they were saying. The only thing he could make out was Johnston saying something along the lines, “Don’t come to us for help”. Under cross-examination, Bennier was firm in adhering to this aspect of his evidence, and convincingly so. When Johnston descended the stairs and joined Bennier, he said to him, “Sharon is shitting herself now. I told her if she wants any representatives from the Union or help from the Union, don’t come to us.” When this was put to Johnston in cross-examination, his response was, as it had to be, that Bennier was not present at all when he came down the stairs.
I refer next to a matter which was mentioned only by Jotic in his evidence, and I do so because Jotic placed it at about 6 pm on that day. Bowker arrived at Jotic’s office, and she was “quite distressed”. According to what she told him, what had distressed her was the way she had been treated in the amenities room by Johnston. She said that Johnston had spoken to her regarding her discussions with management on the Bennier matter. Jotic’s evidence was, “I believe the words he used were that she was a lagger for speaking to management and that she shouldn’t have approached management on this.” Jotic was cross-examined on this evidence, but not so as to suggest that the conversation had not taken place at all. In the course of that cross-examination, Jotic held to his evidence that Bowker had said that Johnston had called her a “lagger”, as distinct from merely having said that she was “lagging”.
Whether before or after her meeting with Jotic just referred to, Bowker rang Schleibs as Johnston had suggested. I shall briefly relate the evidence of each of them, but any attempt to resolve such conflict as there may be would be effectively undermined by two circumstances: first, Schleibs was not cross-examined about the conversation at all, and secondly, neither party placed any reliance on the conversation in final submissions.
According to Bowker’s evidence, she told him that she had been confronted by Johnston, that he had accused her of making a formal complaint. She told Schleibs that Johnston had said that he had read her statement word for word, that she needed to get a solicitor as she would find herself in court, that he hated people like her and that she was a fucking lagger. Schleibs said that he had been told the same thing by Johnston. Bowker told Schleibs that she had not made a complaint, but had been a witness to a complaint, to which Schleibs responded that that was OK: she had done nothing wrong if she had just been a witness to a complaint. He told her that he supported her for standing up for Coombe. He told her not to worry about the matter.
Schleibs’ evidence about this conversation differed from that of Bowker in some important respects. He said that Bowker told him that Bennier had made a rude comment about her friend and fellow workmate, that she had challenged Bennier on that statement and that she had gone to management and made an official complaint. Schleibs said that Bowker was “quite upset that [Johnston] had spoken to her”. She told him that Coombe had gone through a lot of issues in the workplace, and she believed that her standing up for Coombe would help the situation.
At the end of this conversation, Schleibs asked Bowker whether she would be prepared to participate in a meeting involving herself, Johnston and the Charge Foreman, Phil Buttress, to try to resolve the issue. “The issue”, of course, was the question whether Bowker had made a complaint as such (as Johnston thought to be the case) or merely acted as a witness in management’s consideration of a complaint lodged by someone else. Bowker agreed to that course, and Schleibs rang Buttress and arranged for such a meeting to occur. It was held in the old foremen’s room above the amenities room.
As between the witnesses who were involved in that meeting, there was some difference in recollection as to the course which was followed, at least at the outset. Of those who were present in person, Johnston, Bowker and Buttress, Johnston and Bowker gave evidence. Schleibs also participated, by telephone. According to Bowker’s evidence, the point at which Schleibs was on the other end of a telephone call was a very brief (at least so far as she was involved) interchange in a shelter that was used by smokers. When she arrived there, Buttress and Johnston were already in conversation, and they had Schleibs on the speaker phone. Buttress asked her to join him and Johnston, and said that Schleibs had verified that she had the Union’s “100 per cent support.” Then, when Bowker’s arrival was announced to Schleibs, the latter said, “That’s right, Sharon. You’ve got the Union’s hundred per cent support on this.” Then Bowker, Johnston and Buttress proceeded to the old foreman’s room. According to Johnston’s evidence, Schleibs was present by telephone during the discussion in the old foreman’s room. This divergence in evidence was not taken up with Johnston during cross-examination, and when it was so taken up with Bowker, she adhered to her evidence that Schleibs was on the telephone only during so much of the conversation as took place in the smokers’ shelter. Subject to that inconsequential rider, I shall relate the evidence of this meeting as though it proceeded entirely in the one location.
According to Johnston’s evidence, in the meeting Bowker was intent on making him understand Coombe’s position, and the difficulties she faced in relation to the rumours that were circulating about her. He told Bowker, in effect, that he did not want to go into any of that, but that he had no problem with her supporting Coombe. The point he made to Bowker in the meeting was that he did not agree with her “going to management”. In his evidence, Johnston said that he would have said 20 times to Bowker in the meeting, “I applaud you for sticking up for your friend in the mess room. You had done what you had done. The only thing I had an issue with was going and making a statement to management.” Johnston denied that he was “upset” with Bowker on this account, describing his position as “frustrated”. After what Johnston estimated was about two hours of “toing and froing”, he thought that he and Bowker had reached an agreement. When asked in chief what that agreement was, Johnston said, “We arranged … to meet in the morning with Phil Buttress and go to HR at 9 am … to sort the issue that Sharon had with – with the statement, the Stewart Bennier thing, the – whatever, just to sit down and – and work it out.” The “9 am” referred to would have been two days later, 8 August 2013, as the following day, 7 August, was not a working day for him or Bowker. Johnston asked Buttress to arrange for this meeting, but, for some reason unknown to Johnston, the meeting did not take place, at least not at 9 am on 8 August.
According to Schleibs’ evidence, the main matter in dispute at the meeting was whether Bowker had made a written statement of complaint to management. Bowker said that Pastro had been making notes during her interview with management, but she (Bowker) never signed a record of interview as a statement. Bowker asked Schleibs to ring Pastro to arrange a meeting at which Johnston and herself would be present, with a view to clarifying whether Pastro was holding a statement by Bowker, or merely her own notes of the interview with Bowker. Schleibs agreed to contact Pastro to arrange such a meeting, which would have to be on the morning of 8 August as both Johnston and Bowker were to be off work the following day, 7 August.
The meeting was described by Bowker as a “mediation”. In dispute, at least at the outset, was the nature of the contribution which Bowker had made to management’s investigation of the Bennier incident. Johnston was “adamant” that he had seen a signed complaint over Bowker’s hand. Bowker’s position was that she had not made a complaint at all, but had been a witness to Coombe’s complaint. According to Bowker, Johnston said, “It’s still lagging” and, at another stage, “It’s fucking lagging.” There was arguing to and fro as to why Bowker was not being supported in this instance, when she was supported on a previous occasion when she had had cause to make a complaint. Bowker said that she was defending Coombe and (in her evidence), “I was trying to make them understand the ramifications of what it is to be a victim of this sort of behaviour.” But “that didn’t seem to enter in any of it.” According to Bowker, Johnston’s concern was “more about you just don’t go upstairs and make complaints. You just don’t involve management. [T]hey handle these things in-house. They do it themselves.” Bowker said that they agreed to approach management on the morning of 8 August, with a view to clarifying whether they (management) were holding a complaint signed by her. It may be noted that this purpose of meeting with management was not mentioned by Johnston in his evidence, but it makes sense since, on any view, he and Bowker were in heated disagreement over this question.
As it happened, there was no meeting of present relevance at 9 am on 8 August 2013. In his evidence-in-chief, Schleibs suggested that he had telephoned Pastro on the night of 6 August 2013 to arrange the meeting, but, under cross-examination, it became clear that Schleibs had no useful recollection of the actual timing of this call. Pastro could not recall any such phone call from Schleibs on the night of 6 August 2013, and was not cross-examined on the matter. She said that she did receive a call from Schleibs at about 10 am on 8 August 2013, and, because of Pastro’s more reliable recollection on the matter of timing, I would find on the probabilities that that was when Schleibs called her. I shall refer to the detail of that conversation presently.
In the meantime, shortly after Bowker had commenced work on 8 August 2013, she received a call from Buttress, asking, “what’s happening to this 9 o’clock meeting?” Bowker, who was the only one to give evidence of this conversation, did not say whether, or how, she responded to that inquiry, but any concerns she may have had about the 9 am meeting not being held were promptly overtaken by what Buttress said next. According to Bowker, he said, “Everybody is going crazy. This workplace has erupted. I’ve been defending you all morning. You’ve been called a lagger …. Mark’s story has got out. We’ve got to get this meeting, go to get it sorted.” It is evident from this that Buttress was concerned that, before the meeting could be held with management to resolve the question whether Bowker had in fact lodged a complaint, Johnston’s version of the facts had “got out”. Bowker said that she had not heard anything from anyone (ie about the arrangements for the meeting with management). Buttress said that he would find Johnston, and find out what was going on.
I pause here to make a finding on the probabilities that will have some relevance later. From what Buttress had told Bowker as set out in the previous paragraph, the latter jumped to the conclusion that Johnston had been putting it about in the workplace that she was a “lagger”. She later withdrew from that position, and apologised to Johnston for having accused him of that. On the evidence, the only other way that Johnston’s “story” would have found its way into general circulation would have been because at least some of the employees in the amenities room who were present when Johnston was upbraiding Bowker heard what he was saying. Walmsley did not, but he was some distance away. But Bowker’s evidence that the room was “pretty full”, and that there were “a lot of people milling around” was not challenged. Although I would not find that Johnston was speaking in a raised voice at the time, Bowker’s evidence, which I accept in preference to that of Johnston and Walmsley, is that Johnston was speaking in a direct and angry way. He made no attempt to make a private conversation of this exchange. I regard it as most probable that the essence of Johnston’s accusation, including specifically that Bowker was a “lagger” was heard by at least a number of the other stevedores in the room. There is no basis upon which Johnston might have assumed that it would be otherwise.
Returning to the narrative, Buttress did contact Johnston. The only evidence which Johnston gave on the subject came out, apparently incidentally, during cross-examination. He said that he had, on 8 August 2013, asked Buttress to arrange the meeting which had been discussed on the night of 6 August. Although the subject was not substantially taken further by counsel for the respondent, it strikes me as curious that Johnston would have thought it necessary to ask Buttress to arrange the meeting, since Buttress had been party to the understanding on the night of 6 August 2013. Bowker, however, gave evidence on this point which has a much stronger ring of credibility about it. She said that Buttress called her back, and said that he had found Johnston, who had told him not to worry about the meeting. The meeting did not have to go ahead because Schleibs had “sorted it out”. It had “all been fixed up”. Bowker said to Buttress, “That doesn’t seem quite right. We’re both supposed to be going up together to verify this document.” She said that she would ring Schleibs to find out what was going on.
Bowker did ring Schleibs. According to her evidence, he said that Johnston had made a commitment to her, and that they were both supposed to go upstairs and get this sorted out. Bowker mentioned to him that Johnston had, from what she knew, just said to Buttress that he, Schleibs, had sorted it all out, and there did not need to be a meeting. Schleibs said that that was not right. He said that he would call Pastro and sort out a meeting for both of them because, “that’s a commitment that Mark has made to you”. Bowker accepted that, but, as she was about to end this call, she said, “Dave, you do know your mate is lying to you, don’t you?” Schleibs’ response was, “No, no, mate, no, no, it’s all good, it’s all good.” Schleibs himself did not give any evidence about this conversation, either in chief, or, regrettably, under cross-examination.
Schleibs did call Pastro. That was the conversation to which I have referred at para 30 above. According to Schleibs, (as he clarified his evidence in re-examination) he told Pastro that Bowker wanted “to view the statement and make any edit if necessary”. Pastro did not respond well to that request. Schleibs recalls that she said, “Look, I’ll email the statement to her. I’ve got it here. I’ll email it to her. She’s welcome to make any changes she likes and give it back to me, but I’m not having another meeting to discuss this issue.” According to Pastro, when Schleibs rang her he said that Bowker wanted to change her statement. While she accepted that the general thrust of her response was as stated by Schleibs, her own recollection was that she had said to him (speaking of Bowker), “Well, if she thinks that I’ve got it wrong, she can write a statement so it’s all correct and then I will go from there.” On the point of difference between Schleibs and Pastro referred to in this paragraph, I prefer Pastro’s evidence, and find that Schleibs did tell her that Bowker wanted to change her statement.
Schleibs then rang Bowker back. According to Bowker’s evidence, Schleibs said that he had spoken to Pastro, and continued, “She doesn’t want to see you, mate. She’s a little bit disappointed in you. She doesn’t want to get involved in the issues between you and Mark and if you’ve got any changes that you want to make in relation to your statement, you need to do it by email.” Bowker’s response to that was, “What? Who discussed that I would make any changes to my statement? That’s not what the agreement was. I had been confronted with the fact that I made a formal complaint, and who said that I was doing that? I’ve never said that I was going to change it.” Schleibs denied that his discussion with Bowker was based on the premise that he had told Pastro that she, Bowker, wanted to change her statement. On this point, I prefer Bowker’s evidence, and accept that her conversation with Schleibs was substantially as set out in this paragraph.
Bowker then arranged for another of the foremen to give her a lift back to the main terminal. She was intending to proceed to the management offices, but en route she received a call from Buttress, who had been contacted by Schleibs and told that Bowker had “flipped”, as he (Buttress) put it. Bowker said, “I can’t believe it. I’m being set up.” Buttress persuaded Bowker not to go upstairs “all upset”, but to meet him in the old foremen’s room where the meeting on the evening of 6 August had been held. Bowker did as she was bid by Buttress. She was crying. Buttress said that she could not go upstairs looking as she was, to which her response was, “well, I am”. And, as she put it in her evidence, she “walked off on him”.
Bowker proceeded to the main terminal office, where the only person that was available was Jotic. She went into his office and, as she put it in her evidence, “proceeded to cry and yell and tell him what was going on.” Jotic knew nothing of the phone conversation between Schleibs and Pastro, and attempted to contact the latter. “Eventually”, as Bowker put it, Pastro arrived, with a stern look on her face as she saw Bowker. It is evident that Pastro’s stern look was based on her supposition, derived from her earlier conversation with Schleibs, that Bowker wanted to change her statement. Pastro commenced to say something to Bowker, but Bowker talked over the top of her, saying, “It’s not true. I’m not retracting anything I said in that meeting. It’s not true. It’s not true.”
Pastro’s evidence about this occasion in Jotic’s office was that Bowker was extremely upset and angry. She recalled that Bowker had expressed anger about Schleibs having said that she wanted to change her statement, which was untrue. Bowker told her that they were playing “funny buggers in regards to what was being said”, and she was feeling a little ostracised. Bowker then told Pastro that she had been approached by Johnston in the mess room (as Pastro described it in her evidence), and that he had said to her that she had better “lawyer up”, and that the Union was not going to represent her; and that Johnston “proceeded to called her an effing lagger.” At some stage hereabouts, Coombe arrived. She too was upset with what was going on, saying that people had got it wrong, that she, not Bowker, had made the complaint. As perceived by Pastro, Coombe was angry about what had happened as well.
At this point, Pastro formed the view that it was necessary to bring Schleibs into the office to meet with herself, Jotic, Bowker and Coombe, so they could “sort it out”, as Pastro put it in her evidence. Such a meeting was held, commencing at about 1:30 pm on 8 August 2013. No notes were taken of what was said at this meeting, and no two versions of it as given in evidence were in complete alignment. The meeting was held in the board room, adjacent to the office of the respondent’s General Manager at the terminal, Andrew Jena.
In the controversies in the present case, this meeting in the board room has assumed some significance. At some point, in circumstances to which I shall refer, Johnston was invited to be present, and he did attend. He could not stay for long, and departed while the meeting was still in progress. It seems that he was present for about 20 minutes. Accordingly, the meeting was divided into three parts: before Johnston arrived, while he was present, and after he left. From the evidence that was given by those present, it is not always clear whether some interchanges occurred in the first or third parts. Nothing turns on that. For the most part, those aspects of the interchanges which occurred while Johnston was present identify themselves by the references to his involvement.
On any view, the first subject of discussion at the meeting was the question whether Schleibs had told Pastro that Bowker wanted to change her statement. It had been, after all, Bowker’s representation to Pastro on that subject that had led to the convening of the meeting. How that subject was introduced was not a matter of complete consensus in the evidence of those concerned, however. That is not surprising, since this was an occasion when emotions were running high. At such times, people tend to recall what others have said better than they recall what they said themselves. What seems unmistakeable, however, is that Schleibs was very much on the defensive at the start of the meeting.
According to Bowker’s recollection, she, Coombe, Pastro and Jotic were in the boardroom before Schleibs arrived. When he did arrive, he sat directly across from Bowker. Before he sat down, Pastro looked at him and said, “You lied to me.” Schleibs’ response was, “No, mate. No. Oh, mate.” Pastro rejoined, “No. No. You lied to me.” According to Bowker, Pastro was quite angry, but Schleibs held to his position, saying, “No, mate. No, I didn’t.” At this point, Bowker herself said, “Yes, you did. Yes, you did. You rang her up and you told her that I wanted to change my statement.” Although less elaborate, Coombe’s evidence was to substantially the same effect. Pastro too said that the meeting commenced on that subject, but she recalls that it was Bowker who first said something about it. She recalls that Bowker said to Schleibs, “You told Sheryl I wanted to change my statement, but I didn’t.” Schleibs’ response was “I think we’ve got our wires crossed.” Schleibs recollection was that Pastro had said to him, “Dave, you told me that Sharon wants to change her statement but Sharon said that she didn’t.” He also accepted that his response was to say to Pastro, “I think we’ve got our wires crossed.” He put it in those terms to save any embarrassment to Bowker since, when he previously spoke to Pastro, he understood himself to be acting in accordance with Bowker’s wish to view the statement which she had provided. As I have found, however, Schleibs had in fact previously told Pastro, or at least given her to believe, that Bowker wanted to change her statement. Although Schleibs did say to Pastro, in this meeting, that they had their wires crossed, the crossing of the wires was, I would find, to be explained wholly by Schleibs having conveyed to Pastro a message which he had not been given by Bowker: that she wanted to change her statement.
The meeting then moved to Bowker’s accusation against Johnston. According to Pastro’s evidence, Bowker said to Schleibs that Johnston had called her a lagger in front of everyone in the amenities room, and that she was really angry about the way it had been treated, in that it was spread around that she had put in a complaint when she had not done so, she had only made a statement. Bowker gave evidence to substantially the same effect, as did Coombe. Schleibs’ evidence‑in‑chief was not organised to convey a sequential narrative of the exchanges in this meeting, but, under cross‑examination, he did accept that, upon his arrival, Bowker “got stuck into” him; that she told him that she was unhappy about his having told Pastro that she (Bowker) wanted to change her statement; that Bowker made it very clear to everybody at the meeting that she did not want to change the statement she had given about Bennier; and that there was discussion prior to Johnston’s arrival about what occurred between him and Bowker in the amenities room on 6 August. It was probably after some exchanges on the subject of what Johnston had said to Bowker in the amenities room on 6 August 2013 that it was suggested that Johnston should be given the opportunity to defend himself. So Schleibs contacted him and invited him to attend.
Johnston arrived at about 2 pm. There were two main subjects discussed in his presence. The witnesses were not entirely consistent in their recollections of the order in which these subjects were reached, and Johnston and Schleibs denied that one of them was discussed at all. For reasons which follow, I reject those denials. The evidence of both of these witnesses, at least in chief, tended to focus upon the bad language which, they said, came forth from Bowker. That focus was, I consider, a smokescreen for the issues of substance that were under discussion, and which must now be considered. The order in which I set things out below is what, from context, I believe would reflect, most probably, the course which the discussion followed. Nothing turns, however, on the particular order in which various matters were discussed.
To respond to Bowker’s accusation that he had called her a “fucking lagger” was the reason that Johnston was invited to the meeting. Upon his arrival, Bowker confronted him with that accusation. Johnston agreed with what his own counsel put to him in chief, that, at this meeting, Bowker said to him, “You called me a lagger, you swore at me and humiliated me in front of all these people.” In Bowker’s evidence, she said that she had put it to Johnston that he had called her a fucking lagger, told her that she needed to get a solicitor, and told her that she would not be represented by the Union. She said that Johnston’s response was to shrug his shoulders and to make a particular kind of face which she demonstrated to the court, but she did not understand what Johnston meant by these gestures. Bowker held to that evidence under cross-examination, insofar as it related to Johnston’s direct response to her accusation that he had called her a fucking lagger. However, while not “exactly at that point” of the discussion, Bowker recalled that Johnston had said, “I’ve never called you a lagger”. According to Bowker, it was then that Jotic and Pastro interjected. Jotic said, “Well, you called her a ‘lagger’ to me.” Pastro also said, “You called her a ‘lagger’ to me.” Coombe recalled this exchange too, although in slightly different terms. She said that, at the stage when they were discussing Johnston’s comment to Bowker in the amenities room, Johnston said that he had not called her a lagger. Pastro’s response to this was to say, “You called Sharon a lagger in a meeting with us.” Jotic nodded his head and said, “Yes, you did”. Bowker’s response was to say, “What?” It was the first that she had heard of that. The occasion, if there were one, upon which Johnston described Bowker as a lagger in conversation with Jotic and Pastro was not revealed in the evidence.
According to Johnston, he accepted Schleibs’ invitation to be present at the meeting because he understood that he was being accused of having circulated the rumours about Bowker being a “lagger”, and he wanted to clear the air. While he was there, the accusations that he was spreading the rumours were the only matters discussed at the meeting. It was Bowker who was accusing him of spreading the rumours. Johnston’s response was that never in his time of being a delegate or of being in meetings had he “come out of meetings and talked about what [had] gone on in [those] meetings”. He denied in his “strongest terms” that he was spreading rumours about Bowker. He said that he was not the only one in the initial meeting on 6 August that was in the room, “so how dare she accuse me of spreading rumours”. Bowker accused him of having called her a fucking lagger in the amenities room two days earlier, and he (as he put it in his evidence) “would have said no, no, no, a hundred times”.
In Pastro’s recollection, Bowker accused Johnston of having told her to lawyer up, that the Union was not going to support her, and that she was, as Pastro put it in her evidence, “an effing lagger”. In her evidence‑in‑chief, Pastro said that Johnston’s response was “Yes, I called you a lagger.” Under cross-examination, however, Pastro accepted that Johnston may have denied that he had called Bowker a lagger, while admitting that he had told her that what she had done was lagging.
One way or another, the discussion shifted to the subject of whether Bowker had signed a written statement of complaint against Bennier. Johnston and Schleibs denied that this subject was canvassed at all, but their evidence was not credible. Whether Bowker had signed such a statement was, of course, the great uncertainty that had been discussed on the evening of 6 August with Buttress, and which was to have been clarified at the meeting at 9 am on 8 August which was never held. Now that the protagonists were finally together in a meeting with Pastro and Jotic, the evidence from Bowker, Coombe and Pastro that this subject was broached, rather than ignored as Johnston and Schleibs would have the court believe, has a very strong ring of truth to it.
According to Pastro, Bowker made it clear to Johnston that she had not made the complaint, but that she was supporting Coombe. She said that Johnston had got that wrong. Johnston said that he had seen the complaint, and that Pastro had shown him the complaint by Bowker. Bowker’s own evidence on this part of the meeting was that Johnston said to her, “You’ve made a formal complaint. I’ve read it word for word.” At this point, Coombe intervened, saying to Johnston, “Mark, I need to make it very clear to you I am the one that has made the complaint. I have made the complaint and Sharon has been a witness to my complaint. Do you understand?” Johnston’s response was, “Well, I saw what I saw”. According to Bowker, either she or Pastro then asked Johnston, “Well, what did you see?” His response was, “I saw a statement”. In giving this evidence, Bowker noted that Johnston had shifted his ground, in the sense that previously he had claimed to have seen a “complaint”. However, that minor point of distinction may be, Pastro then became “quite angry”, picked up a pad and said to Johnston, “I just showed you my handwritten notes. That’s all I had was my handwritten notes.” Coombe’s evidence was to the same effect, and Pastro too said that, in response to Johnston’s insistence that he had seen a statement by Bowker, she held up, for Johnston to see, her own written notes of her interview with Bowker. Johnston said that he had thought that those notes were Bowker’s complaint.
In the recollection of Bowker and Coombe, it was at about this point in the meeting – when Johnston realised that the note, which had been in Pastro’s possession on 6 August 2013, was not a statement by Bowker – that he admitted having advised Bennier to deny making the offensive comment about Templar and Coombe. Bowker said in her evidence that Johnston made a comment that Pastro was very angry during the meeting with Bennier on 6 August 2013. (I note that, in Bowker’s evidence, no distinction was made between the two such meetings.) He said to Pastro, “You were really angry. I knew that you were going to sack him. I can read between the lines and I advised Stewart Bennier to lie.” When asked (in chief) what was Pastro’s reaction to this revelation, Bowker’s answer was – and I do not put this disparagingly – theatrical. The only word shown in the transcript to describe that reaction was “Oh”. Bowker’s evidence was that “everybody just went Oh”. This was, however, an “Oh my goodness!” kind of “Oh”, not an “Oh alright” kind of “Oh”. Counsel agreed that I should describe the way that Bowker gave this evidence as involving a number of gasping intakes of breath. Pastro then said, “What? You’ve advised someone to lie? Against these girls. These are also MUA members. You’ve advised someone to lie and make these girls look like liars.”
Coombe’s evidence was that, when Pastro told Johnston that all he had seen were her handwritten notes, his response was “We can all read between the lines. I knew by the look on your face that Stewart was going to get the sack. I knew Stewart lied and I told Stewart to lie.” Coombe said that they were all shocked by that revelation. Bowker “just had her mouth open”. Pastro said, “What? Why aren’t you – today – why aren’t you supporting these two women? Why aren’t you supporting these two women? You’re a White Ribbon Ambassador. You should be supporting these two women.”
As to Pastro, in response to an open question in chief which inquired whether there were any other topics discussed in Johnston’s presence, Pastro said, “Yes. Sharon also discussed the fact that in – when Mark was supporting Stewart Bennier with the meeting that, you know, everyone knew that Stewart was, say, a little simple, and that – you know, he then proceeded to tell him to lie.” When asked how Johnston responded to this, Pastro said that he said, “Yes, I did. What did you expect? It was against a supervisor.”
Both Schleibs and Johnston denied that the latter had admitted, at this meeting on 8 August 2013, that he had advised Bennier to lie on 6 August. Johnston said that he said nothing about Bennier in the meeting. He specifically denied the evidence that was to be given by Bowker that he said, “I can read between the lines. I know that Stewart Bennier did it but I told him to lie and make a false statement. I can read between the lines.” And he specifically denied the evidence that was to be given by Pastro that he said, “I got him to deny it. What was I supposed to do? This was against a supervisor.” Schleibs too said that the matter of Bennier was not discussed, and that Johnston did not admit that he had told Bennier to lie.
Pastro’s views made their way into the evidence in a most unconventional way. In chief, her evidence was that she did not make, and did not participate in making, the decision that Johnston should be dismissed. She also gave evidence that, at each of the meetings which she attended and which might be thought potentially relevant to the question why Johnston was dismissed – the meeting with representatives of Papillon on 25 September 2013, the teleconferences of 11 December 2013 and 20 January 2014, and the meeting in Jena’s office on 28 January 2014 – none of the facts and circumstances which the applicants had alleged as reflecting the reasons prohibited by the FW Act was discussed. The only exception was that Johnston’s position as delegate was mentioned in contexts which could only be regarded, for present purposes, as benign, such to provide background to Papillon and as possibly giving rise to industrial dislocation in the event that the consequence for Johnston was dismissal in the meeting of 11 December. Beyond that, there was no occasion for Pastro to be led as to the reasons why she might have done something which she did not do.
Under cross-examination, it emerged that, during the course of the meeting in Jena’s office on 28 January 2014, but not before, Pastro reached the same conclusion as Jena ultimately did, namely, that Johnston should be dismissed. But she also gave evidence that she did not communicate that view to Jena. Then, in re-examination, counsel for the respondent asked whether, in reaching that conclusion, Pastro was influenced to any extent by any of the aspects of Johnston’s status, role or activities which corresponded with the reasons for his dismissal which the applicants alleged against the respondent. Over the objection of counsel for the applicants, I allowed those questions to be asked. They were all answered in the negative. I permitted counsel for the applicants to cross-examine Pastro further on these matters, and they put to her that she had reached that conclusion for reasons which corresponded with those alleged against the respondent. That further cross-examination produced consistent denials. There was, of course, something purely formal about both series of questions put to Pastro in this way, and about her one-word answers, but that circumstance, in my view, reflects the reality that, by the terms of s 361 of the FW Act and the applicants’ allegations, the respondent was obliged to deny propositions that had nothing to do with the facts, and the dynamics of the facts, that actually led to Johnston being dismissed from his employment; and counsel for the applicants, correspondingly, were obliged to put propositions to Pastro that bore little or no relation to those facts and dynamics.
I find that it was not until 28 January 2014 that Pastro came to the view that Johnston should be dismissed. The reasons for that view were confined to the matters which had been alleged against him, and were reflected in the respondent’s letters of 24 January and 10 February 2014. Her reasons did not include any that were prohibited by the FW Act.
For the above reasons, I find that the respondent did not dismiss Johnston for any reason, or for reasons which included any reason, that would attract the operation of s 340 or s 346 of the FW Act. The applicants’ case under Pt 3-1 must be rejected.
DISPOSITION OF THE PROCEEDING
For the reasons given above, the Application must be dismissed.
I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 10 December 2014
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